United States of America v. Curtis Lamont Brown

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CURTIS LAMONT BROWN,
Defendant - Appellant.
Nos. 14-30064, 14-30065
D.C. Nos. 3:12-cr-00538-HZ-3
D.C. Nos. 3:12-cr-00562-HZ-1
MEMORANDUM*
Appeals from the United States District Court
for the District of Oregon
Marco Hernandez, District Judge, Presiding
Argued and Submitted October 13, 2015
Portland, Oregon
Before: TASHIMA, GILMAN,** and BEA, Circuit Judges.
Curtis Brown killed Jonas Miller on the Warm Springs Indian Reservation by
shooting him in the head while both men were heavily intoxicated. Six days later, he
helped dispose of the body of a young woman killed by others on the reservation.
FILED
OCT 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
** The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.

-- 1 of 6 --

After his arrest for both offenses, the district court suggested that Brown and the
government should consider resolving the case before trial. They agreed to do so, and
the presiding judge referred the case to a magistrate judge for a settlement conference.
The magistrate judge helped the parties reach an agreement in which Brown pleaded
guilty to second-degree murder and accessory after the fact to first-degree murder.
The agreement also (1) required a joint recommendation for a 20-year prison term,
and (2) contained a waiver of Brown’s rights to pursue any appeals.
Brown then appeared before the district judge for a change-of-plea hearing.
The judge extensively discussed the terms of both the plea agreement and the included
appellate-rights waiver. Brown confirmed that he understood these terms and stated
that he had not been pressured to enter into the plea agreement.
The United States Probation Office then calculated Brown’s advisory
sentencing range under the Sentencing Guidelines to be 262 to 327 months of
imprisonment. Both the government and Brown complied with the plea agreement
by recommending a prison term of 20 years (240 months). At the consolidated
sentencing hearing, however, the district court heard testimony from Miller’s family
members to the effect that a 20-year term was not a sufficient punishment. The court
subsequently imposed a 25-year (300-month) sentence on the second-degree murder
-2-

-- 2 of 6 --

conviction. It also imposed a concurrent 15-year (180-month) sentence on the
accessory-after-the-fact conviction.
Brown now appeals. He first argues that the appellate waiver in his plea
agreement is unenforceable. Brown next argues that his sentence should be vacated
because (1) the government breached the plea agreement, and (2) the district court did
not adequately explain the basis for the 25-year sentence.
A knowing and voluntary appellate waiver is enforceable except in limited
circumstances, such as when a “defendant’s guilty plea [is] not taken in compliance
with Rule 11 of the Federal Rules of Criminal Procedure.” United States v. Jeronimo,
398 F.3d 1149, 1153 & n.2 (9th Cir. 2005), overruled on other grounds by United
States v. Castillo, 496 F.3d 947, 957 (9th Cir. 2007) (en banc). Among other things,
Rule 11 precludes a district court from participating in plea negotiations. Fed. R.
Crim. P. 11(c)(1).
In the present case, Brown’s plea agreement was reached with the involvement
of a magistrate judge. This court has previously approved such arrangements, so long
as the judge participating in the settlement conference was not the presiding or
sentencing judge. See United States v. Scolari, 72 F.3d 751 (9th Cir. 1995). But the
Supreme Court’s decision in United States v. Davila, 133 S. Ct. 2139 (2013), changed
this court’s analysis. As explained in the recent case of United States v. Myers, No.
13-10580, 2015 WL 5315376, (9th Cir. Sept. 14, 2015), “‘Rule 11(c)(1)’s prohibition
-3-

-- 3 of 6 --

of judicial involvement in plea discussions’ extends to magistrate judges who are
neither the sentencing judge nor the judge presiding over the defendant’s criminal
case.” Id. at *4 (emphasis in original) (quoting Davila, 133 S. Ct. at 2146). Based
on Myers, the magistrate judge’s participation in Brown’s plea negotiations violated
Rule 11, so the appellate waiver in the plea agreement is unenforceable. See
Jeronimo, 398 F.3d at 1153 n.2.
This Rule 11 violation would also allow Brown to challenge the enforceability
of the plea agreement itself. See United States v. Kyle, 734 F.3d 956, 959 (9th Cir.
2013) (concluding that a Rule 11(c)(1) violation can justify vacature of a plea
agreement where the violation prejudices the defendant). In the present case,
however, Brown asks that we instead remand this case to the district court for specific
performance of the plea agreement and enforcement of the parties’ accompanying
recommendation of a 20-year sentence.
Brown’s first argument in support of remand is that the government breached
the plea agreement by eliciting unfavorable testimony from the family members of
Brown’s victim. To the extent that the government facilitated such testimony,
however, the government was simply fulfilling its statutory obligations under the
Crime Victims’ Rights Act. See 18 U.S.C. § 3771(a)(1)(4) (providing that victims
shall have the “right to be reasonably heard at any public proceeding in the district
court involving release, plea, [or] sentencing”); id. § 3771(c)(1) (“Officers and
-4-

-- 4 of 6 --

employees of the Department of Justice . . . shall make their best efforts to see that
crime victims are notified of, and accorded, the rights described in subsection [18
U.S.C. § 3771(a)].”).
In any event, Brown’s claim is subject to the plain-error standard of review
because he failed to object to the testimony at his sentencing hearing. Relief is thus
available only if Brown can show that the alleged breach was a “clear or obvious”
error that affected his “substantial rights.” See Puckett v. United States, 556 U.S. 129,
135 (2009). An error impacts a defendant’s “substantial rights” only if there exists a
“reasonable probability” that the error affected the outcome of the sentencing. United
States v. Gonzalez-Aguilar, 718 F.3d 1185, 1189 (9th Cir. 2013).
Brown cannot meet this standard because he has not shown that the 25-year
prison sentence imposed by the district court was based on the statements from
Miller’s family members. Instead, the court appears to have based its sentencing
decision on the parties’ written submissions and on its own interactions with Brown.
Particularly telling is the court’s statement that the 20-year term recommended by the
parties was not appropriate in light of Brown’s history and the parties’ prehearing
submissions. There was no plain error.
Brown’s remaining argument is that the district court did not sufficiently
explain how it decided on a 25-year sentence. But because Brown’s 25-year term fell
within the Guidelines range of 262 to 327 months of imprisonment, the court had no
-5-

-- 5 of 6 --

need to supply a lengthy explanation for its decision. See Rita v. United States, 551
U.S. 338, 356 (2007) (“[W]hen a judge decides simply to apply the Guidelines to a
particular case, doing so will not necessarily require lengthy explanation.”). The court
noted, for example, that the 25-year sentence accounted for factors such as the need
to protect the public and the need to avoid unwarranted disparities in sentencing.
These statements and others indicate that the court “considered the parties’ arguments
and [had] a reasoned basis” for its decision. See id. No more was required. See, e.g.,
United States v. Carter, 560 F.3d 1107, 1119 (9th Cir. 2009) (“Because the record and
context make clear that the judge ‘considered the evidence and arguments,’ the district
court made no procedural error in imposing a within-Guidelines sentence.” (citation
omitted)).
For all of the above reasons, WE AFFIRM.
-6-

-- 6 of 6 --