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United States v. Brown

United States Court of Appeals, Third Circuit

February 22, 2017

UNITED STATES OF AMERICA
v.
RAYMOND BROWN, Appellant

          Submitted Under Third Circuit L.A.R. 34.1(a) December 13, 2016

         On Appeal from the District Court of the Virgin Islands (D.C. No. 3-13-cr-00022-005) District Judge: Hon. Curtis V. Gomez

          Ryan T. Truskoski Counsel for Appellant

          Kim L. Chisholm Ronald Sharpe Office of United States Attorney Counsel for Appellee

          Before: CHAGARES, JORDAN and HARDIMAN, Circuit Judges.

          OPINION

          JORDAN, Circuit Judge.

         Raymond Brown appeals from his conviction and sentence in the District Court of the Virgin Islands. He argues that the use of dual juries (one for him, and one for a co-defendant) violated his Fifth and Sixth Amendment rights. He also asks us to reconsider our rule placing the burden on defendants to object at sentencing, and he says we should instead require the sentencing court to solicit objections. For the reasons that follow, we will affirm.

         I. Background

         Brown and seven others were charged in a 69-count Third Superseding Indictment with crimes related to multiple conspiracies to purchase, transport, and distribute cocaine. The central feature of the case was a cocaine enterprise organized by Robert Tapia, a Virgin Islands law enforcement officer.

         Ultimately, only Brown and one other defendant, Walter Hill, proceeded to trial. Although both Brown and Hill were connected to the enterprise, there was no allegation that the two conspired with one another. Brown communicated with Tapia about potential cocaine purchases and helped deliver the cocaine to Tapia, while Hill assisted in the collection and subsequent transportation of the purchased cocaine.

         Before trial, the Court observed that, "[w]hile initially there was an overarching conspiracy, there is none now. And nothing that ties the two defendants together." (Supp. App. at 1.) Therefore, "[o]ut of an abundance of caution, the Court … select[ed] two juries to hear th[e] matter." (Id.) It explained the process of empaneling two separate juries and had counsel agree on the record to that procedure. It then designated Brown's jury "Panel A" and Hill's jury "Panel B." Panel A convicted Brown on Count Six, for using a communication to facilitate a drug crime, in violation of 21 U.S.C. §§ 843(b) and (d)(1) and 18 U.S.C. § 2. He was acquitted on nine other counts.[1]

          At sentencing, the Court determined that Brown had an offense level of 28 and a criminal history category of I. It then calculated the guideline range of imprisonment as 78 to 97 months. Because the minimum term of imprisonment under the guidelines exceeded the statutory maximum sentence, the Court turned to § 5G1.1(a) of the United States Sentencing Guidelines.[2] Pursuant to that section, and after consideration of the sentencing factors enumerated in 18 U.S.C. § 3553, the Court sentenced Brown to the statutory maximum term of 48 months. Brown did not object to the sentence.

         II. Discussion[3]

         A.Dual ...


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