United States of America v. Chalmers Brown

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0175P (6th Cir.)
File Name: 04a0175p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHALMERS BROWN,
Defendant-Appellant.
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No. 02-6407
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20059—Samuel H. Mays, Jr., District Judge.
Argued: February 5, 2004
Decided and Filed: June 10, 2004
Before: NELSON, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Stephen B. Shankman, OFFICE OF THE
FEDERAL PUBLIC DEFENDER FOR THE WESTERN
DISTRICT OF TENNESSEE, Memphis, Tennessee, for
Appellant. David N. Pritchard, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen B. Shankman, April R. Goode,
2 United States v. Brown No. 02-6407
OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR
THE WESTERN DISTRICT OF TENNESSEE, Memphis,
Tennessee, for Appellant. John T. Tibbetts, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for
Appellee.
_________________
OPINION
_________________
DAVID A. NELSON, Circuit Judge. Under the federal
sentencing guidelines, a criminal defendant may be given a
prison sentence exceeding the range prescribed in the
guidelines manual’s sentencing table if the criminal history
category to which the defendant has been assigned does not
adequately reflect his past conduct or the likelihood that he
will commit additional crimes. See the Sentencing
Commission’s Policy Statement at U.S.S.G. § 4A1.3.
The appropriate extent of an upward departure can often be
measured by reference to the sentence range for a person in
the next criminal history category above the defendant’s. But
where a defendant’s criminal record has earned him so many
criminal history points that he is already in the highest of the
six criminal history categories created by the guidelines, the
Policy Statement directs the sentencing court to “structure”
the departure by moving to successively higher offense levels
(the defendant’s offense level being the other variable in the
sentencing table) until the court comes to “a guideline range
appropriate to the case.” Id.
The defendant in the case at bar, who had at least 13 prior
felony convictions, pleaded guilty to a charge of knowingly
possessing a certain Norberto Arizmendi shotgun in violation
of 18 U.S.C. § 922(g), the statute that criminalizes possession
of a firearm by a convicted felon. The defendant’s lengthy
criminal record made him a prime candidate for an upward
departure from the sentence range (168-210 months) specified

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No. 02-6407 United States v. Brown 3
in the table. Employing a methodology endorsed in United
States v. Williams, No. 99-6030, 2000 WL 1872059 (6th Cir.
Dec. 15, 2000), cert. denied, 532 U.S. 988 (2001)
(unpublished), the district court sentenced the defendant to
imprisonment for a term of 360 months.
We cannot tell whether the sentence range (360 months to
life) produced by the Williams methodology was one which
the district court, in the exercise of its independent judgment,
considered appropriate to the particular circumstances of this
particular case. We shall therefore vacate the challenged
judgment and remand the case for resentencing.
I
At 10:15 on the morning of November 25, 2001, according
to a subsequently prepared presentence investigation report,
three robbers broke into Tara Thompson’s house on Laclede
Avenue in Memphis, Tennessee. Inside the house were Ms.
Thompson, her boyfriend Tallen Williams, and three children
ranging in age from three to 14.
One of the intruders — described by Ms. Thompson as a
bearded man about 6 feet tall, weighing about 160 pounds and
wearing a homemade ski mask — was said to have been
armed with a shotgun of the “pistol pump” variety. A second
intruder — a “short, chubby” man, not wearing a mask —
had a small handgun. (Chalmers Brown, the defendant in the
case at bar, stands 5'6" in height and weighs 187 pounds,
according to the presentence report; he would thus seem to
bear a closer resemblance to the short, chubby man with the
handgun than to the tall, thin man with the shotgun.) The
third intruder, who wore a black ski mask, was apparently
unarmed.
Ms. Thompson called 911 while the intruders were kicking
in her front door. Once inside, according to a statement Ms.
Thompson was to give the police, the short, chubby man
pointed his handgun at her and her children and asked where
4 United States v. Brown No. 02-6407
her money was. The tall, thin man likewise demanded
money. In the course of the ensuing tumult, Ms. Thompson’s
statement says, the oldest child was repeatedly hit in the head
with the shotgun and the weapon was fired once. The blast
hit Ms. Thompson’s dog in the foot, and some of the pellets
struck Ms. Thompson in the face and arm.
As the police were arriving in response to the 911 call, the
robbers escaped with a Playstation and some money Mr.
Williams had in his pants. Two days later a crime stoppers
tip implicated Chalmers Brown (the defendant herein) and
two other suspects. Shown a photo-array, according to the
presentence report, Ms. Thompson “positively identified
Chalmers Brown as the person who shot her, assaulted her
family and shot her dog.” (The presentence report does not
comment on the anomalous circumstance that Ms.
Thompson’s statement to the police described the masked
man with the shotgun as being much taller and thinner than
Mr. Brown; one wonders if in fact Ms. Thompson did not
simply identify the bare-faced Mr. Brown as a member of the
trio, without claiming that he personally wielded the shotgun.)
On the day after Ms. Thompson identified Mr. Brown’s
picture, a police officer spotted Brown getting into his
Cadillac automobile. Mr. Brown was detained, and a search
of the Cadillac turned up a black ski mask behind the driver’s
seat and a loaded shotgun in the trunk. Mr. Brown admitted
ownership of the shotgun.
Charged with both state and federal crimes, Mr. Brown
found himself moved along the federal track first. A
superseding indictment handed up by a federal grand jury in
April of 2002 charged him with three counts of violating the
felon-in-possession statute, 18 U.S.C. § 922(g). Mr. Brown
pleaded guilty to the first count of the superseding indictment
pursuant to a Rule 11 plea agreement. (It was the first count,
as we have indicated, that charged him with illegal possession
of a Norberto Arizmendi shotgun.) The other two counts
were dismissed by the government.

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No. 02-6407 United States v. Brown 5
The probation officer who prepared Mr. Brown’s
presentence investigation report originally assumed that the
Norberto Arizmendi shotgun was the same weapon with
which Ms. Thompson and her son and dog had been
assaulted. Based on this assumption, and using the 2001
edition of the guidelines manual, the probation officer
assigned Mr. Brown an offense level of 31. In a subsequent
addendum to the presentence report, however, the officer
noted that whereas Ms. Thompson had described the shotgun
used in the robbery as a “pistol pump” weapon, the Norberto
Arizmendi referred to in Count One of the indictment did not
have a pistol pump feature. The addendum recommended
that Brown’s total offense level be set at 30, rather than 31,
unless the United States could prove that the weapon
recovered at the time of the arrest was the same one used
during the home invasion.
The government could not prove that the weapons were one
and the same, and the district court therefore accepted the
revised computation of Brown’s offense level. Under the
manual’s sentencing table — an abbreviated version of which
is included as an appendix to this opinion — a defendant who
has earned a place in Criminal History Category VI and who
has an offense level of 30 is assigned a guideline sentence
range of 168-210 months.
Prior to issuance of the addendum to the presentence report,
the government had moved for an upward departure from the
range (188-235 months) specified in the original report. The
basis for the motion was that while a minimum of only 13
criminal history points suffices to place a defendant in
Criminal History Category VI, Mr. Brown had amassed more
than four times that number of points — 53, to be precise.
Category VI thus failed adequately to reflect Mr. Brown’s
past criminal behavior, the government argued.
The district court agreed. The court also accepted the
methodology proposed by the government for determining the
extent of the upward departure. That methodology, as we
6 United States v. Brown No. 02-6407
have said, was one approved by the Sixth Circuit’s
unpublished decision in the Williams case, available
electronically at 2000 WL 1872059.
The sentencing court in Williams used a criminal history
scale of its own creation, with phantom categories designed
to trigger incremental increases in the defendant’s offense
level. See Williams, 2000 WL 1872059, at **2. The
Williams methodology provides for no increase in the offense
level of a defendant whose criminal history score is 15 or less.
A criminal history score of 16 to 18 points produces a one-
level increase in the offense level. A criminal history score of
19 to 21 leads to a two-level increase, and higher brackets of
criminal history points lead to further increases in the offense
level. A criminal history score of 48 or more yields an
increase of 10 in the offense level.
Accepting the Williams methodology as “persuasive and
logical,” the court below treated Mr. Brown as having an
offense level of 40 rather than 30. As can be seen from a
glance at the sentencing table set forth in the appendix, infra,
the range prescribed for a defendant in Criminal History
Category VI who has an offense level of 40 is imprisonment
for a term in the range of 360 months to life.
The government sought to have the 39-year-old Mr. Brown
sentenced to life imprisonment. The district court, however,
opted to impose a sentence — 30 years — at the bottom of
the guideline range determined under Williams. Mr. Brown
has perfected a timely appeal from this 30-year sentence.
II
In general, a departure is permissible if the sentencing court
finds “that there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration” by the guidelines. 18 U.S.C. § 3553(b).
Thus U.S.S.G. § 4A1.3 stated (before adoption of a change in
wording not relevant here) that “[i]f reliable information

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No. 02-6407 United States v. Brown 7
indicates that the criminal history category does not
adequately reflect the seriousness of the defendant’s past
criminal conduct or the likelihood that the defendant will
commit other crimes, the court may consider imposing a
sentence departing from the otherwise applicable guideline
range.”
Mr. Brown does not deny that an upward departure was
warranted in light of his remarkable criminal history. He
contends, rather, that it was inconsistent with U.S.S.G.
§ 4A1.3 for the district court to determine the extent of the
departure by employing jerry-built criminal history categories
not tailored to his individual case.
Although § 4A1.3 is designated a policy statement, rather
than a guideline, it is binding on the district courts. See
Stinson v. United States, 508 U.S. 36, 42 (1993). Failure to
follow § 4A1.3 constitutes an incorrect application of the
sentencing guidelines, see id., and is thus an abuse of
discretion. See United States v. Valentine, 100 F.3d 1209,
1210 (6th Cir. 1996).
The 2001 edition of the Sentencing Guidelines Manual
contained a passage (subsequently the subject of minor
changes in wording) that read as follows:
“Where the court determines that the extent and nature of
the defendant’s criminal history, taken together, are
sufficient to warrant an upward departure from Criminal
History Category VI, the court should structure the
departure by moving incrementally down the sentencing
table to the next higher offense level in Criminal History
Category VI until it finds a guideline range appropriate
to the case.”
(The reader who does not have a clear mental image of the
configuration of the matrix to which the foregoing passage
alludes may wish to examine the sentencing table at this
juncture. See Appendix, infra.) “[W]hen the court cannot
8 United States v. Brown No. 02-6407
1Carr’s statements as to ho w a sentencing court is to effect a multi-
level increase in a defendant’s offense level may be regarded as dicta,
given that we were not reviewing such an increase in that case. The
departure issue in Carr was whether the district court had erred by
hypothesizing a criminal history category greater than VI rather than
increasing the defendant’s offense level. See Carr, 5 F.3d at 994.
move horizontally across the guideline grid because there are
no criminal history categories greater than VI,” as we put it in
United States v. Thomas, 24 F.3d 829, 834 (6th Cir.), cert.
denied, 513 U.S. 976 (1994), “[the court] should move
vertically down the offense level axis until it locates a range
which it deems appropriate to the facts of the case.”
Our earlier decision in United States v. Carr, 5 F.3d 986,
994 (6th Cir. 1993), had suggested that § 4A1.3 requires a
district court to consider the sentencing ranges that would
result from an increase of one offense level, two offense
levels, and so on, increasing the defendant’s offense level by
more than one only if the court “demonstrate[s] why it found
the sentence imposed by each intervening level to be too
lenient.” Carr, 5 F.3d at 994.1 See also United States v.
Gray, 16 F.3d 681, 683 (6th Cir. 1994). But Thomas held that
Carr’s interpretation of § 4A1.3 did not “require[] a
sentencing court to explain formalistically, gridblock-by-
gridblock, why each intervening range is inappropriate.”
Thomas, 24 F.3d at 835.
“We read [§ 4A1.3] to require a court to continue moving
down offense-level ranges only until it finds a range
which would provide an appropriate sentence for the
defendant, but no further. We do not read this to require
the court to move only one level, or to explain its
rejection of each and every intervening level. The
language indicates quite clearly that the court should
continue to consider ranges ‘until it finds’ an appropriate
sentence for the defendant before it, but nothing in
§ 4A1.3 calls for a more detailed, gridblock-by-gridblock
approach . . . .” Id. at 834.

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No. 02-6407 United States v. Brown 9
“The approach required of the sentencing court when
departing beyond Criminal History Category VI,” Thomas
holds, “is to consider carefully all of the facts and
circumstances surrounding the case which affect the
departure, and from them determine an appropriate sentence
for the particular defendant.” Id. at 835. If a court selects an
appropriate sentence range in this manner, and if the court
increases the defendant’s offense level no more than
necessary to arrive at that range on the sentencing table,
§ 4A1.3 is satisfied.
This is not to say that § 4A1.3 prohibits a district court
from using the Williams construct (or some similar expedient)
as a reference point when determining the extent of an upward
departure. But the use of such a construct – particularly one
developed by a different judge in a different case – cannot
replace the exercise of the court’s independent judgment. If
a district court chooses to follow the Williams approach in the
beginning, the resultant sentence range is not to be treated as
definitive; at the end of the day the court must decide, in light
of all the facts and circumstances of the particular case before
it, whether the range in question is “appropriate to the case.”
(As Thomas makes clear, the process of “moving
incrementally down the sentencing table to the next higher
offense level,” see U.S.S.G. § 4A1.3, is simply a means to an
end; the whole point of the exercise is to “find[] a guideline
range appropriate to the case.” Id.) If, having elected to use
the Williams methodology as a navigational aid, the court
finds that the range to which that methodology points is not
“a guideline range appropriate to the case,” the court must
select a different range.
In the case at bar, it seems to us, the record does not reflect
an independent determination by the district court that the
Williams range is appropriate for this particular case in light
of the particularized facts of the case. The court knew, to be
sure, that it was not required to use the Williams
methodology; the court twice referred to Williams as an
“example.” But after choosing to apply Williams, the court
10 United States v. Brown No. 02-6407
accepted the resulting sentence range without comment. As
far as the record indicates, the court gave no independent
thought to whether that range was appropriate under the
individual circumstances of Mr. Brown’s case.
It is true that, in rejecting the government’s
recommendation of a sentence of life in prison, the district
court said that “360 months is adequate punishment for these
offenses.” But we do not interpret this comment as a
determination that 360 months to life is an appropriate
sentence range. The question is whether a departure to a
range starting below 360 months would be adequate and
appropriate for Mr. Brown’s offense. That is a question the
court does not seem to have addressed.
The sentence is VACATED, and the case is REMANDED
for further proceedings not inconsistent with this opinion.

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No. 02-6407 United States v. Brown 11
APPENDIX
SENTENCING TABLE
(in months of imprisonment)
Criminal History Category (Criminal History Points)
OFFENSE
LEVEL
I
(0-1)
II
(2 or 3)
III
(4, 5, 6)
IV
(7, 8, 9)
V
(10, 11,
12)
VI
(13 OR
MORE)
1 0-6 0-6 0-6 0-6 0-6 0-6
2 0-6 0-6 0-6 0-6 0-6 1-7
3 0-6 0-6 0-6 0-6 2-8 3-9
\
***
[
\
***
[
\
***
[
30 97-121 108-135 121-151 135-168 151-188 168-210
31 108-135 121-151 135-168 151-188 168-210 188-235
32 121-151 135-168 151-188 168-210 188-235 210-262
33 135-168 151-188 168-210 188-235 210-262 235-293
34 151-188 168-210 188-235 210-262 235-293 262-327
35 168-210 188-235 210-262 235-293 262-327 292-365
36 188-235 210-262 235-293 262-327 292-365 324-405
37 210-262 235-293 262-327 292-365 324-405 360-life
38 235-293 262-327 292-365 324-405 360-life 360-life
39 262-327 292-365 324-405 360-life 360-life 360-life
40 292-365 324-405 360-life 360-life 360-life 360-life
41 324-405 360-life 360-life 360-life 360-life 360-life
42 360-life 360-life 360-life 360-life 360-life 360-life
43 life life life life life life

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