UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4903

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
CHRISTOPHER LARONN BROWN,
Defendant - Appellant.

No. 04-7191

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
versus
CHRISTOPHER LARONN BROWN,
Defendant - Appellant.

Appeals from the United States District Court for the Middle
District of North Carolina, at Durham.
Frank W. Bullock, Jr.,
District Judge. (CR-04-95)

Submitted:

September 14, 2005

Decided:

October 27, 2005

Before WILKINSON, LUTTIG, and MICHAEL, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North

Carolina, for Appellant.
Anna Mills Wagoner, United States
Attorney, Robert A. J. Lang, Assistant United States Attorney,
Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

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PER CURIAM:
In these consolidated appeals, Christopher Laronn Brown
challenges his conviction and sentence.

A jury found Brown guilty

of one count of possession of a firearm by a convicted felon in

violation

of

18

U.S.C.

922(g)(1),

924(e)

(2000).

Brown

challenges the sufficiency of the evidence and the district courts

decision to permit evidence of Browns prior possession of the same
firearm at issue in the conviction.

Brown also challenges his

sentence under the rules announced in United States v. Booker, 543

U.S.

, 125 S. Ct. 738 (2005).

Brown also filed a pro se

supplemental brief in Appeal No. 04-7191, in which he filed a pro

se notice of appeal from a district court order denying his pro se
motion

to

have

his

counsel

withdraw.

While

we

affirm

the

conviction, we vacate the sentence and remand for resentencing.

Brown contends the evidence was insufficient to support
his

conviction

because

both

main

witnesses

were

unreliable

witnesses having given different versions of the events to other

law enforcement authorities and prosecutors.

When reviewing a

sufficiency-of-the-evidence claim, the verdict will be sustained

if there is substantial evidence, taking the view most favorable
to the Government, to support it.
U.S. 60, 80 (1942).

Glasser v. United States, 315

[S]ubstantial evidence is evidence that a

reasonable finder of fact could accept as adequate and sufficient

to support a conclusion of a defendants guilt beyond a reasonable

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doubt.

United States v. Burgos, 94 F.3d 849, 862 (4th Cir. 1996)

(en banc). In resolving issues of substantial evidence, this court

does not weigh evidence or review witness credibility.

The court

assumes the jury resolved all contradictions in testimony in favor

of the Government.
Cir. 1998).

United States v. Romer, 148 F.3d 359, 364 (4th

In addition, on review, the evidence must be viewed in

a way as to be most favorable to the Government.

The elements of a violation of 922(g)(1) are that:
(1)

the

defendant

previously

had

been

convicted

of

crime

punishable by a term of imprisonment exceeding one year; (2) the

defendant knowingly possessed . . . the firearm; and (3) the
possession was in or affecting interstate commerce, because the
firearm had travelled [sic] in interstate or foreign commerce.
United States v. Langley, 62 F.3d 602, 606 (4th Cir. 1995) (en
banc).
Brown only challenges the element concerning knowing
possession.

We find the evidence is more than substantial to show

Brown possessed the firearm.

Witnesses testified to seeing Brown

with the gun on the date in question.

Any contradictions in the

testimony are assumed to be resolved in favor of the Government.

Moreover, the evidence is reviewed most favorably toward the
Government.

Browns challenge to the credibility of the witnesses

is without merit.

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Brown

contends

the

district

court

erred

admitting

evidence that he was observed shooting the same firearm a week

before the incident in question. Brown was informed prior to trial
that the Government intended to present this evidence.
Brown did not object, review is for plain error.

Because

In order to

demonstrate plain error, Brown must show an error occurred, the

error was plain, and the error affected his substantial rights.
United States v. Olano, 507 U.S. 725, 732 (1993).

Correction of

the error remains within the courts discretion, which the court
should not exercise . . . unless the error seriously affect[s]
the

fairness,

integrity

or

public

reputation

of

judicial

proceedings. Id. at 732 (second alteration in original) (quoting

United States v. Young, 470 U.S. 1, 15 (1985) (internal quotation
marks omitted)).
Under Rule 404(b) of the Federal Rules of Evidence,
evidence of other bad acts may be admissible if it is probative of
a material issue other than character.

Huddleston v. United

States,

evidence

485

U.S.

681,

686

(1988).

Such

is

properly

admitted when it is (1) relevant to an issue other than character,

(2) necessary, and (3) reliable.
444,

447

omitted).

(4th

1991)

(internal

citations

and

quotations

In addition, the evidence must be more probative than

prejudicial.
1997).

Cir.

United States v. Mark, 943 F.2d

United States v. Queen, 132 F.3d 991, 997 (4th Cir.

Review

of

district

courts

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determination

of

the

admissibility
discretion.

of

evidence

under

Rule

Queen, 132 F.3d at 995.

404(b)

is

for

abuse

of

A district court will not be

found to have abused its discretion unless its decision to admit

evidence under Rule 404(b) was arbitrary or irrational.
States v. Haney, 914 F.2d 602, 607 (4th Cir. 1990).

United

Evidentiary

rulings are also subject to review for harmless error under Federal
Rule of Criminal Procedure 52, and will be found harmless if the
reviewing court can conclude without stripping the erroneous
action from the whole, that the judgment was not substantially
swayed by the error.

United States v. Nyman, 649 F.2d 208, 211-12

(4th Cir. 1980) (quoting Kotteakos v. United States, 328 U.S. 750,
765 (1946)).
We find the evidence was relevant to the issue of whether
Brown possessed the gun in question. The evidence was reliable and
necessary to prove the contested issue in this trial: whether Brown
possessed the firearm.

With respect to the fourth factor, under

Rule 403, [p]rejudice . . . refers to evidence that has an undue

tendency to suggest decision on an improper basis, commonly, though
not necessarily, an emotional one.

Queen, 132 F.3d at 994

(quoting Fed. R. Evid. 403 advisory committees note); see United

States

v.

Van

Metre,

150

F.3d

339,

351

(4th

Cir.

1998)

(interpreting Rule 403 to require exclusion of evidence only in

those instances where the trial judge believes that there is a
genuine risk that the emotions of the jury will be excited to

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irrational behavior, and that this risk is disproportionate to the

probative

value

of

the

offered

evidence)

(quoting

States v. Powers, 59 F.3d 1460, 1467 (4th Cir. 1995)).

United

Here, the

probative value of the evidence was high because it went to a

highly contested issue at trial.

Given the high probative value,

we find evidence of prior possession and use of the firearm did not
substantially outweigh the probative value.

Even if it was error

to admit the evidence, given the substantial evidence supporting

the conviction, the error was harmless.
Brown challenges his sentence under the rules announced
in Booker.

In the Presentence Investigation Report (PSR), Brown

was assigned a base offense level of 20 because he committed the

offense subsequent to sustaining one felony conviction for a crime
of

violence.

See

U.S.

Sentencing

Guidelines

Manual

2K2.1(a)(4)(A) (2003). Four points were added because Brown used

the gun in connection with another felony offense, felony discharge
of a weapon into occupied property and felony assault with a deadly
weapon with intent to kill inflicting serious injury.

2K2.1(b)(5).

Another

two

points

were

added

See USSG

because

Brown

obstructed justice by trying to persuade one witness not to testify

against him and another to discard the gun and the magazine.
USSG 3C1.1.

See

The PSR further noted Brown was a armed career

criminal pursuant to 924(e) and USSG 4B1.4(b)(3)(A), having

three prior convictions for felony robbery with a dangerous weapon.

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Accordingly, his offense level was 34 because the firearm was used
in connection with a crime of violence.
The statutory sentence for an armed career criminal with
a 924(g) conviction is 15 years to life imprisonment.

Because

Brown was in criminal history category VI as a result of being an

armed career criminal who used the firearm in connection with a
crime of violence, he was subjected to a guideline sentence of 262
to 327 months imprisonment.

See USSG 4B1.4(c)(2).

Brown filed objections in which he claimed the offense

level was improper under Blakely v. Washington, 542 U.S. 296
(2004).

Counsel claimed the base offense level should be 14

instead of 20, because the prior felony conviction was not found by
the jury or admitted by Brown.

Counsel also argued the offense

level should not be enhanced for the alleged conduct surrounding

the possession.

In addition, counsel claimed that the enhancement

for being an armed career criminal should not apply, but if it

does, it should only be 33 instead of 34.

An offense level of 33

does not require a finding that the firearm possession was in

connection with a crime of violence.

See USSG 4B1.4(b)(3)(B).

Counsel also claimed no criminal history points should be applied,

nor should he be placed in criminal history category VI for being
an armed career criminal.

The district court denied counsels

objections and sentenced Brown to 288 months imprisonment.

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Because Brown preserved his Sixth Amendment claim by

objecting to his armed career criminal classification based upon
Blakely, this courts review is de novo.

See United States v.

Mackins, 315 F.3d 399, 405 (4th Cir. 2003) (If a defendant has
made a timely and sufficient Apprendi[1] sentencing objection in
the trial court, and so preserved his objection, we review de
novo.).

When a defendant preserves a Sixth Amendment error, this

court must reverse unless [it] find[s] this constitutional error

harmless beyond a reasonable doubt, with the Government bearing the
burden of proving harmlessness.
United

States

v.

White,

405

Id. (citations omitted); see

F.3d

208,

223

(4th

Cir.

2005)

(discussing difference in burden of proving that error affected

substantial rights under harmless error standard in Fed. R. App. P.
52(a), and plain error standard in Fed. R. App. P. 52(b)).
In Booker, the Supreme Court held that Blakely applied to
the federal sentencing guidelines and that the mandatory manner in
which

the

guidelines

required

courts

to

impose

sentencing

enhancements based on facts found by the court by a preponderance

of the evidence violated the Sixth Amendment.

Thus, when a

defendant pleads guilty and is sentenced under the mandatory

guidelines scheme, [a]ny fact (other than a prior conviction)
which is necessary to support a sentence exceeding the maximum
authorized by the facts established by a plea of guilty or a jury

Apprendi v. New Jersey, 530 U.S. 466 (2000).

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verdict must be admitted by the defendant or proved to a jury

beyond a reasonable doubt.

Booker, 543 U.S. at

, 125 S. Ct. at

756.
In the instant appeal, the district court engaged in
judicial fact finding by imposing an offense level of 34 based on
the finding that Browns possession of a firearm was used in
connection with a crime of violence.

Likewise, the criminal

history category was adjusted based upon the same finding.

In

finding Brown guilty of firearm possession, the jury did not have
to find that his possession was in connection with a crime of
Nor did Brown admit to such a allegation.2

violence.

Because the district court engaged in judicial factfinding

category

to

determine

and

the

Browns

resulting

offense

guideline

level,
range

criminal
was

history

imposed

in

mandatory manner, there was a Sixth Amendment violation under

Booker.

On remand, the court must calculate the appropriate

guideline range, consider the range in conjunction with other

relevant factors under the guidelines and 18 U.S.C.A. 3553(a)
(West 2000 & Supp. 2005), and impose a sentence.

If a court

imposes a sentence outside the guideline range, the district court

Had Brown been sentenced with an offense level of 33, which

depends only on the fact of prior convictions, and with a criminal
history category of V, his guideline range would have been 210 to
262 months imprisonment, or less than the sentence he received.
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must state its reasons for doing so.

F.3d 540, 546 (4th Cir. 2005).3

United States v. Hughes, 401

Accordingly, we affirm the conviction and vacate the

sentence and remand for resentencing in light of Booker.5

We

dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED IN PART, VACATED

IN PART, AND REMANDED

Brown also challenges the use of the fact of prior

convictions to find he is an armed career criminal under 924(e),
arguing
that Almendarez-Torres v. United States, 523 U.S. 224
(1998), must be overturned.
The use of the fact of a prior
conviction to determine a sentence does not violate the Sixth
Amendment. See United States v. Cheek, 415 F.3d 349, 352-53 (4th
Cir. 2005).
4

Just as we noted in United States v. Hughes, 401 F.3d 540,

545 n.4 (4th Cir. 2005), [w]e of course offer no criticism of the
district judge, who followed the law and procedure in effect at the
time of Browns sentencing.
5

We have considered the issues raised in Browns informal

brief filed in No. 04-7191, and find them to be without merit.
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