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United States v. Brown

United States District Court, S.D. Ohio, Eastern Division

May 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK ANTHONY BROWN, Defendant

          OPINION AND ORDER

          EDMUND A. SARGUS, JR. JUDGE

         This matter is before the Court on an objection that Defendant Mark Anthony Brown raises regarding his presentence investigation report ("PSR") and the Government's Sentencing Memorandum [ECF No. 60]. (Resp. to Gov't Sentencing Mem. at 1-4 [ECF No. 61].) Defendant objects to the application of a sentencing enhancement under 21 U.S.C. § 844(a) applicable to individuals convicted of possessing a controlled substance after having been convicted of a prior drug-related crime. (See id.) For the following reasons, and for those reasons stated on the record during the sentencing hearing in this matter, Defendant's objection is OVERRULED.

         I.

         On April 28, 2016, Defendant was indicted for possessing 2 live rounds of 9mm ammunition and a Bryco arms model 25-CA, 25 caliber pistol, loaded with 4 live rounds of ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Indictment at 1 [ECF No. 1].) Defendant was also indicted under 18 U.S.C. § 924(d)(1), which mandates the forfeiture of the firearms and ammunition involved in the alleged offense: the Bryco arms pistol and ammunition as well as a Hi Point model C-9, 9mm pistol, loaded with 2 live rounds of 9mm ammunition. (Id. at 2.)

         The Government filed a Superseding Indictment against Defendant on October 6, 2016. The Government added two counts to its original indictment: (i) possession of two rounds of 9mm ammunition in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2) and (ii) knowing and intentional possession with intent to distribute a mixture of substance containing a measurable amount of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). (Superseding Indictment at 2 [ECF No. 29].)

         The case proceeded to trial on November 3, 2016. During the jury charging conference, Defendant requested that the Court submit a lesser included offense to the jury: possession of cocaine base in violation of 21 U.S.C. § 844(a). The Government objected the inclusion of the lesser included offense. The Court overruled the objection and added the charge to the jury instructions and verdict forms.

         The jury returned a verdict on November 7, 2016. The jury found Defendant not guilty of (Count 1) possessing a firearm, .25 caliber ammunition, or both; not guilty of (Count 2) possessing 9mm ammunition; not guilty of (Count 3) possessing with intent to distribute cocaine base; and guilty of the lesser included offense of possessing cocaine base. (Verdict Forms at 1-4 [ECF No. 52].)

         Section 844(a), which prohibits possession of controlled substances such as cocaine base, provides for statutory sentencing enhancements when an offender has prior convictions for a drug-related offense:

Any person who violates this subsection may be sentenced to a term of imprisonment of not more than 1 year, and shall be fined a minimum of $1, 000, or both, except that if he commits such offense after a prior conviction under this subchapter or subchapter II, or a prior conviction for any drug, narcotic, or chemical offense chargeable under the law of any State, has become final, he shall be sentenced to a term of imprisonment for not less than 15 days but not more than 2 years, and shall be fined a minimum of $2, 500, except, further, that if he commits such offense after two or more convictions under this subchapter or subchapter II, or two or more prior convictions for any drug, narcotic, or chemical offense chargeable under the law of any State, or a combination of two or more such offense have become final, he shall be sentenced to a term of imprisonment for not less than 90 days but not more than 3 years, and shall be fined a minimum of $5, 000.

21 U.S.C. § 844(a) (emphasis added). A separate statutory provision, however, limits a court's ability to impose an enhanced sentence under § 844(a). Under 21 U.S.C. § 851(a)(1):

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

         (emphasis added).

         In advance of Defendant's sentencing hearing, the parties each filed a sentencing memorandum. Defendant argued in his memorandum that his possession of cocaine base, in violation of § 844(a), subjects him to no more than one year of imprisonment given that the Government did not file an information regarding his prior convictions as required under § 851(a)(1). (See Resp. to Gov't Sentencing Mem. at 2-4 [ECF No. 61].)

         In its arguments to the Court, the Government took the position that Defendant can be subjected to an enhanced sentence under § 844(a) (i.e., incarceration of not less than 15 days but not more than 2 years) because Defendant had actual notice, via the Superseding Indictment, that one of his prior drug-related convictions might be used to enhance his sentence. (See Gov't ...


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