US v. Jerome Brown - Criminal Appeal

PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________ No. 23-3184 ____________ UNITED STATES OF AMERIC A v. JEROME BROWN, a /k/a Jerome F Brown, Appellant On Appeal from the United States District Court for the Western District of Pennsyl vania (District Court No. 2:21- cr -00374- 001) District Judge: Honorable J. Nicholas Ranjan __________ Submitted Pursuant to Third Circ uit L.A.R. 34.1(a) on February 3, 2025 Before: RESTREPO, MONTGOMERY-R EEVES, and SCIRICA, Circuit J udges (Filed: March 6, 2026) Donovan J. Cocas Laura S. Irwin OFFICE OF UNITED STATES ATTORNEY Western District of Pennsylvania 700 Grant Street Suite 4000 Pittsburgh, PA 15219 Counsel for Appell ee Ray Kim Renee Pietropaolo OFFICE OF FEDERAL PUBLIC DEFENDER Western District of Pennsylva nia

2 1001 Liberty Avenue 1500 Liberty Center Pittsburgh, PA 15222 Counsel for Appellant _________ OPINION OF THE COURT _________ RESTREPO, Circuit Judge. A plea agreement is a negotiated contract between the Governme nt and a defendant. 1 Rule 11 of the Federal Rules of Criminal Procedure governs criminal pleas and expressly forbids judicial participation in plea negotiations. 2 But improper judicial participation is not enough to vacate a plea. A defendant mu st also show that, as a result, he suffered prejudice. 3 Although the District Court improperly intervened in the parties’ plea negotiations, we will affirm because Brown cannot show a violation of his substantial rights. I. Jerome Brown was indicted for drug trafficking and illegally po ssessing a firearm after law enforcement raided his car, home, and storage unit as part of a drug - trafficking investigation near Pittsburgh, Pennsylva nia. Police found over 13 kilos of fentanyl, a handgun, and ammunition, as well as $136,000 in cash. Shortly after his arrest, Brown 1 United States v. Cruz, 95 F.4t h 106, 110 (3d Cir. 2024) (ci ting United States v. Moscahlaidis, 868 F.2d 1357, 1361 (3 d Cir. 1989)). 2 F ED. R. C RIM. P. 11 (c)(1) (“The court must not participate in [plea agreement] discussions.”). 3 United States v. Davila, 569 U.S. 597, 612 (2013) (“ Davila I”).

3 confessed. Instead of going to trial, Brown entered into plea negotiations with the Government. The parti es presented two different stipulated plea agree ments to the District Court. In the first plea agreement, the parti es negot iated the mandator y m inimum sent ence of 180 months ’ imprisonment. But the District Court rejected the plea, findi ng the sentence to be inconsistent with the guidelines 4 and the factors set forth in 18 U.S.C. § 3553(a). So, Brown withdrew his plea. The parties went back to the drawing board to negotiate a second plea agreement. The new agreement proposed a sentence of 198 months — 18 months longer than the original deal. Instead of simply rejecting the plea as permitted under Rule 11, 5 the District Court proposed its own “sentence [of] no greater than 235 months.” 6 Brown postponed his scheduled change- of -plea and filed a supplemental memorandum to address the District Court’s continued concerns. But the District Court remained doubtful and reiterated its proposed sentence of 235 mo nths. The Government and Brown proceeded to request a sentence of 198 months, noting Brown’s early cooperation and acceptance of responsibility. Ultimate ly, the District Court rejected the second plea and presented Brown with three op tions: (1) try to ren egotiate a third plea agreement; (2) enter an open guilty plea with the promise of a sentence not less 4 Given Brown’s criminal history and the charges, his Sentencin g Guidelines range was 292 – 365 months imprisonment wi th a mandatory minimum of 180 m onths ’ imprisonment. See U.S.S.G. §§ 2D1. 1(c)(2), 4B1.1(b). 5 See F ED. R. C RIM. P. 11 (c)(3), (5). 6 JA 140.

4 than 235 months; or (3) go to trial. After discussing the options with his attorney, Brown chose to proceed directly to an open plea with the understanding of the District Court’s position. 7 His plea was knowing and voluntary, and he ultimately received a sentence of 235 months’ imprisonment followed by ten years of supervised release. This appeal followed. II. 8 Brown argues that the District Court’s promise of a sentence of not less than 235 months violated Rule 11(c)(1), which should result in a vacatur of his plea. To resolve this issue, we must decide two questi ons: First, did the District Court violate Rule 11(c)(1)? If so, can Brown show substantial prejudice because of the violation? Because he failed to raise the objection below, we review for plain err or. 9 Rule 11’s mandate against judicial participation in plea negotiations is clear: “The court must no t participate in these discussions.” 10 Such interference raises concerns for 7 JA 180 (“ Mr. Brown is prepared to pr oceed with a change of plea without a plea agreement today in light of the Court’s, I guess, preliminary ruling on the plea agreement and proceed without a plea and just do an open plea to Counts One and Two of the indictment.”). 8 The District Court had jurisdicti on under 18 U.S.C. § 3231, and this Court has appellate jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. 9 See United States v. Davila, 749 F.3d 9 82, 993 (11th Cir. 2014) (“ Davila II ”) (finding that plain-error review applies whe n a defendant fails to contem poraneously object to a Rule (11)(c)(1) violation); see also United St ates v. Brown, 595 F.3d 498, 5 19 (3d Cir. 2010) (“To succeed under this s tandard of review, a def endant must demonstrate that (1) the asserted violation of Rule 11(c) (1) was error, (2) the error was plain, and (3) the error affected the defendant’s substantial rig hts; if these three conditions are met, than a c ourt may exercise its discretion to notice the forfeited error, but only if (4) the error seri ously affect[s] the fairness, i ntegrity, or public reputation o f judicial proceedings.” (internal quotation and citations omitted)). 10 F ED. R. C RIM. P. 11 (c)(1) (empha sis added).

5 coerced guilty pleas and strips the process of judicial neutrality. The Supreme Court has recognized that the prohibition was adopted “out of concern that a defendant might be induced to plead guilty rather than risk displeasing the judge who would preside at trial.” 11 The District Court unquestionably violated Rule 11(c)(1)’s bright -line rule prohibiting judicial interference. Here, the violation is straightforward: the court engaged in plea negotiations and induced Brown to accept a plea of not less than 235 months. On more than one occasion, the District Co urt proposed its ow n sentence and therefore unquestionably “took the lead in orchestrating the plea a greement ultimately entered into by [Brown] and the government” 12 — a point the Government concedes. 13 But the District Court’s error alone is not enough to vacate Brown’s plea, 14 as he suggests. Brown must also show that “ the error affected [his] substantial rights.” 15 He bears the burden of making this showing yet fails to meet this burden. Indeed, in his briefing before the panel, he never claimed that he would have rejected a 235-month sentence if the government had offered it. Instead, the record demonstrates Brown’s consistent intent to plead guilty on whatever te rms he could get. Fr om the outset, Brown admitted the drugs belonged to him, reaffirming that admission under oath at his guilty plea. Before the Dist rict Court rejected the second plea agreement, both parties made it clear that Brown intended to plead guilty. 11 Davila I, 569 U.S. at 606. 12 United States v. Harrell, 751 F.3d 1 235, 1239 (11th Cir. 2014). 13 See Appellee’s Br. at 23 (“[T]he United States believes that t he court’s Rule 11(c)(1) violation in Brown’s case is obvious.”). 14 See Davila I, 569 U.S. at 609 – 10 15 Brown, 595 F.3d at 519.

6 Brown’s attorney told the District Court, “He intends to plea d guilty toda y. He intends to, like he did on the day of his arrest, to accept full responsibility for his actions and he understands the gravity of this offense. . . . ” 16 Likewise, the prosecutor urged t he District Court to accept the below- guideline sentence due to Brown’s “very early” 17 cooperation: “ [W ]ithin six months of this all happening, Mr. Brown said, I’ll pl ead guilty, I’ll go away with the plea agreement for 15 years.” 18 The parties shared a mutual understanding from the beginning, one that Brown did not refute: “it was relatively clear this would be a plea, that Mr. Brown was not really go ing to fight this.” 19 Because Brown has not borne his burden of showing that the error affected his substantial rights by resulting in a heavier sentence, we must affirm despite the Distric t Court’s violation of Rule 11(c)(1). III. Alternatively, Brown also argues that his plea must be vacated because 18 U.S.C. § 922(g)(1) is unconstitutional. But we need not address this argument, because our precedent is clear: “§ 922(g)(1) is constitutional as applied to convicts on par ole or probation” 20 and “ [a] convict completing his sentence on supervised release does not have a Second Amendment right to possess a firearm.” 21 Because Brown was on probation at the time of the offense, he does not have a Second Amen dment right to possess a f irearm. 16 JA 157. 17 JA 173. 18 JA 174. 19 JA 177. 20 United States v. Quailes, 126 F.4t h 215, 224 (3d Cir. 2025). 21 United States v. Moore, 111 F.4th 26 6, 273 (3d Cir. 2024).

7 IV. The District Court erred by violating Rule 11(c)(1) whe n parti cipating in plea negotiations. But the error did not affect Brown’s substantial r ights, so we will affirm.