United States v. Roy Edward Brownlee

NOT RECOMMENDED FOR PUBLICATION File Name: 23a0234n.06 No. 22-2166 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 23, 2023 UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF ROY EDWARD BROWNLEE, ) MICHIGAN Defendant-Appellant. ) ORDER )

Before: GIBBONS, ROGERS, and NALBANDIAN, Circuit Judges.

Roy Edward Brownlee, a pro se federal prisoner, appeals the district court’s order denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(1) and § 401 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194. Brownlee moves the court for leave to file a supplemental brief. This case has been referred to a panel of the court that, upon examination, unanimously agrees that oral argument is not needed. See Fed. R. App. P. 34(a). For the reasons that follow, we deny Brownlee’s motion to file a supplemental brief and affirm the district court’s order.

In September 2016, a federal jury convicted Brownlee of conspiracy to distribute controlled substances causing death, in violation of 18 U.S.C. § 846, distributing controlled substances, in violation of 21 U.S.C. § 841(a)(1), three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), two counts of dealing in firearms without a license, in violation of 18 U.S.C § 922(a)(1)(A), and two counts of attempted distribution of controlled substances, in violation of 21 U.S.C. § 846. The district court determined that Brownlee was an armed career criminal under 18 U.S.C. § 924(e) and a career offender under USSG § 4B1.1 based on prior convictions in Michigan for assault with intent to cause bodily harm less than murder, No. 22-2166, United States v. Brownlee delivery of marijuana, and delivery of cocaine. In February 2017, the district court sentenced Brownlee to a total term of 360 months of imprisonment. We affirmed. United States v. Brownlee, 716 F. App’x 472, 474 (6th Cir. 2017).

In May 2022, Brownlee moved the district court to reduce his sentence under § 3582(c)(1), arguing that § 401 of the First Step Act invalidated his prior convictions as § 924(e) and career-offender predicates. The district court concluded that Brownlee was ineligible for a reduction in his sentence because he was sentenced before the effective date of the First Step Act, December 21, 2018. Further, the court found that § 401 did not affect Brownlee’s designation as an armed career criminal. The court therefore denied Brownlee’s motion.1 This timely appeal followed.

On de novo review, see United States v. Boulding, 960 F.3d 774, 778 (6th Cir. 2020), we conclude that the district court correctly determined that Brownlee was ineligible for a reduction in his sentence. Section 401 of the First Step Act amended 21 U.S.C. § 841(b)(1)(A) & (B) so that now a drug offender must have a prior conviction for a “serious drug felony or serious violent felony” rather than a “felony drug offense” to receive an enhanced sentence. United States v. Brown, No. 20-6409, 2022 WL 2135265, at *2 (6th Cir. Mar. 16, 2022); United States v. Wiseman, 932 F.3d 411, 417 (6th Cir. 2019). But § 401 does not apply retroactively to defendants, like Brownlee, who were sentenced before the effective date of the Act. United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 2021), cert. denied, 142 S. Ct. 780 (2022); Wiseman, 932 F.3d at 417.

No. 22-2166, United States v. Brownlee

For these reasons, we AFFIRM the district court’s order and DENY Brownlee’s motion to file a supplemental brief.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk