US v. Anthony Brown, No. 09-4092 (4th Cir. 2011)
Annotate this CaseThis opinion or order relates to an opinion or order originally issued on March 26, 2010.
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4092 UNITED STATES OF AMERICA, Plaintiff Appellee, v. ANTHONY CHARLES BROWN, Defendant Appellant. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:99-cr-70105-jlk-1) Submitted: June 21, 2011 Decided: July 13, 2011 Before NIEMEYER, KING, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Larry W. Shelton, Federal Public Defender, Fay F. Spence, First Assistant Federal Public Defender, Roanoke, Virginia, for Appellant. Julia C. Dudley, United States Attorney, Craig J. Jacobsen, Assistant United States Attorney, Roanoke, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: On July 27, 1999, Anthony Charles Brown was charged in state court in Danville, Virginia with transporting one ounce or more of cocaine into Virginia with the intent to distribute. After his release on $50,000 bond, Brown failed to appear for a hearing on September 14, 1999, and a warrant was issued for his arrest. On November 18, 1999, a federal grand jury sitting in Roanoke, Virginia, indicted Brown on one count of knowingly and intentionally five grams possessing of cocaine § 841(a)(1) (2006). with intent base, in to distribute violation of more 21 than U.S.C. An arrest warrant for Brown was issued the next day, and remained in effect until Brown was apprehended in New York over eight years later, on March 5, 2008. Following Brown s apprehension, the federal grand jury issued a superseding indictment charging him with knowingly and intentionally fifty grams possessing of cocaine with intent base, in to distribute violation of more 21 than U.S.C.A. § 841(a)(1) and (b)(1)(A) (West 1999 & Supp. 2011). Brown moved to dismiss the superseding indictment, arguing that it the five-year federal § 3282(a) (2006). statute of limitations, see court denied both motions. superseding 18 U.S.C. Brown also moved to suppress evidence found in a 1999 search of his bags at a train station. the violated indictment The district Brown pleaded guilty to Count One in without 2 the benefit of a plea agreement. At sentencing, the district court declined to grant Brown a three-level reduction for acceptance of responsibility and added a two-level increase for obstruction sentencing Brown to 188 months imprisonment. of justice, Brown noted a timely appeal. On appeal, Brown raises four arguments. First, he agues that the district court erred in denying his motion to dismiss the indictment as time-barred. This court reviews de novo a motion to dismiss an indictment as time-barred when the motion is based upon a question of law, rather than on the existence of the facts contained in the indictment. United States v. United Med. & Surgical Supply Corp., 989 F.2d 1390, 1398 (4th Cir. 1993). The statute of limitations for non-capital crimes is five years. 18 U.S.C. § 3282(a). Brown s offense occurred in 1999, and the superseding indictment against him was filed in 2008, more remand, the than five district years after the court determined offense. that after However, the on arrest warrant was issued, Brown fled with the intent to avoid arrest. * Brown s fugitive status thus tolled the limitations period under * We previously remanded the appeal to the district court for the limited purposes of resolving this factual issue. United States v. Brown, 374 F. App x 450 (4th Cir. 2010) (No. 09-4092). 3 18 U.S.C. § 3290 (2006), which provides, [n]o statute of limitations shall extend to any person fleeing from justice. Accordingly, Brown s first argument is without merit. Next, Brown argues that the district court erred in denying Brown s motion to suppress. We review the factual findings underlying the denial of a motion to suppress for clear error and States v. evidence the court s Branch, is 537 legal F.3d construed prevailing party below. in conclusions 328, de novo. United (4th Cir. light the 337 2008). most favorable to The the United States v. Foster, 634 F.3d 243, 246 (4th Cir. 2011). The Fourth Amendment does not prohibit all searches and seizures, merely those found to be unreasonable. Jimeno, 500 U.S. 248, 250 (1991). generally is per se Florida v. Although a warrantless search unreasonable, one of the established exceptions to this rule is a search that is conducted pursuant to consent. (1973). Schneckloth v. Bustamonte, 412 U.S. 218, 219 In determining the scope of the consent, the court uses an objective reasonableness standard. Jimeno, 500 U.S. at 251. In other words, the court considers what the typical reasonable person officer [would] and the have understood suspect. Id. by the The exchange scope generally defined by its expressed object. 4 of Id. between a search the is A suspect may also impose consents. limits on the scope of the search to which he Id. Here, a reasonable person would have understood that Brown consented to the search of his bags. Accordingly, the district court did not clearly err in so determining. We appeal. also reject Brown s remaining two grounds for Brown argues that the court erred in both adopting the presentence report s recommendation denying a three-level reduction for acceptance of responsibility and in imposing a two-level enhancement for obstruction of justice. This court reviews the district court s decision for clear error. United States v. Kise, 369 F.3d 766, 771 (4th Cir. 2004) (acceptance of responsibility); United States v. Kiulin, 360 F.3d 456, 460 (4th Cir. 2004) (obstruction of justice). Given Brown s fugitive status and inconsistent testimony, the district court did not clearly err in denying Brown the acceptance of responsibility reduction or in imposing a two-level enhancement for obstruction of justice. Accordingly, we affirm the judgment of the district court. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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