United States v. Kevin Brown
2016 U.S. App. LEXIS 11397
5th Cir.2016Background
- Kevin D. Brown pleaded guilty (1991) to lewd and lascivious acts with a child and was subject to lifetime sex-offender registration with notice requirements on moves.
- Between 2011–2014 Brown moved repeatedly (Indiana, San Antonio, Lumberton NC, back to San Antonio, then Indiana, finally San Antonio) and failed to notify or re-register after several moves.
- Marshals located Brown after a Social Security application; Brown admitted failing to register but said threats and assaults by others prevented registration.
- Brown pleaded guilty to one count under 18 U.S.C. § 2250(a). The PSR applied U.S.S.G. § 2A3.5 (base offense level 16, reduced to 13 for acceptance) and a criminal-history category III; no objections were filed.
- The PSR and district court relied on an erroneous supervised-release range of five years to life (citing § 3583(k) and U.S.S.G. § 5D1.2(c)) instead of the correct single-point five-year term under Amendment 786 and controlling Fifth Circuit precedent.
- District court sentenced Brown to 15 months’ imprisonment (below Guidelines imprisonment range) and ten years’ supervised release; Brown appealed only the supervised-release term and did not object below, so review is for plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ten-year supervised release was plain error given PSR’s misapplication of Guidelines vs statutory minimum | Brown: Ten-year term exceeded correct Guidelines single point (5 years) and thus affected his substantial rights | Government: District court independently assessed § 3553(a) factors; error may be harmless because court intended lengthy supervision | Court: Error was plain and affected substantial rights, because correct range = single 5-year point and Brown got 10 years |
| Whether record shows district court would have imposed same above-Guidelines term absent error | Brown: No clear record showing intent to impose above-Guidelines supervised release | Government: District court’s independent § 3553(a) analysis could justify above-Guidelines term (citing Segura) | Court: Record shows district court sought leniency on imprisonment and did not base supervision term on recidivism concerns; therefore defendant showed substantial-rights prejudice |
| Whether appellate court should correct the plain error (exercise discretion) | Brown: Remand or reduce supervised release because error undermines fairness/integrity | Government: Even if error occurred, sentence is fair given Brown’s criminal history and court’s concerns | Court: Declined to correct error—exercised discretion not to remand because supervised-release term was fair on these facts |
| Proper application of Sentencing Guidelines vs statutory supervised-release minimum for § 2250(a) | Brown: Amendment 786 and precedent establish single-point 5-year supervised release | Government: PSR treated statutory range (5–life) as operative (pre-Amendment approach) | Court: Acknowledged Amendment 786 and precedent (single 5-year point) but remedial discretion declined despite error |
Key Cases Cited
- United States v. Escalante-Reyes, 689 F.3d 415 (5th Cir. 2012) (plain-error framework and discretion to correct)
- United States v. Putnam, 806 F.3d 853 (5th Cir. 2015) (failure-to-register supervised release should be a single 5-year term; appellate relief for above-Guidelines supervised release)
- United States v. Segura, 747 F.3d 323 (5th Cir. 2014) (district court may impose life supervision based on independent § 3553(a) findings)
- United States v. Mudekunye, 646 F.3d 281 (5th Cir. 2011) (how to show prejudice for plain-error sentencing claims)
- United States v. Hernandez, 690 F.3d 613 (5th Cir. 2012) (plain-error sentencing analysis and examples of sentences affecting substantial rights)