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United States v. Brown

United States Court of Appeals, Fifth Circuit

March 1, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
LENNON RAY BROWN, Defendant-Appellant

         Appeal from the United States District Court for the Northern District of Texas

          Before JOLLY, DENNIS, and ELROD, Circuit Judges.

          JAMES L. DENNIS, Circuit Judge

         Lennon Ray Brown, a former Citibank employee, pleaded guilty to intentionally damaging a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A) after temporarily disabling a portion of Citibank's network. He was sentenced to twenty-one months of incarceration followed by two years of supervised release. On appeal, Brown argues that his Guidelines range was improperly increased under U.S.S.G. § 2B1.1(b)(18)(A)(iii), which applies to conduct causing a "substantial disruption of a critical infrastructure." Because we conclude that Brown's conduct could not have had a serious impact on national economic security, we VACATE Brown's sentence and remand for resentencing.


         Brown was a system specialist at Citibank's Global Control Center in Irving, Texas. On December 23, 2013, Brown was called into a meeting with his supervisors and presented with a formal "Performance Improvement Plan" based on accusations of poor work performance. Brown refused to participate in the plan. At 6:03 p.m., about an hour after leaving the meeting, Brown connected to Citibank's secure network and intentionally executed commands to disrupt network traffic through ten of Citibank's data routers, ultimately impacting nine. Brown's sabotage resulted in a loss of connectivity to some but not all of Citbank's North American data centers, campuses, call centers, and sixty-nine ATMs. He then left the building, informing a coworker that he would not be returning. The Global Control Center almost immediately received an automatic alert notifying it of the outage and promptly committed company resources to resolve the problem. By 10:17 p.m., Citibank had restored ninety percent of the lost connectivity, and by 4:21 a.m. the next morning had fully restored the network.

         Brown pleaded guilty without a plea agreement to a one-count indictment charging him with intentional damage to a protected computer in violation of 18 U.S.C. § 1030(a)(5)(A), (c)(4)(A)(i)(I), and (c)(4)(B). Brown's Presentence Report (PSR) calculated a total offense level of twenty-three with a criminal history category of I, resulting in a Guidelines range of forty-six to fifty-seven months of incarceration. The PSR calculated Citibank's actual loss as $133, 402, including $56, 202 for increased phone calls to call centers from customers affected by the outage. The PSR also applied a six-level sentencing enhancement under § 2B1.1(b)(18)(A)(iii) for a violation of § 1030 that caused a "substantial disruption of a critical infrastructure, " bringing the offense level to twenty. Under § 2B1.1(b)(18)(B), because § 2B1.1(b)(18)(A)(iii) applied, the offense level was then increased to twenty-four, effectively an additional four-level increase.

         Brown subsequently filed a sentencing memorandum, requesting a downward variance and disputing the loss calculations and other facts included in the PSR. Brown alleged that his offense level was erroneously calculated under the Guidelines and proposed an alternative calculation that, relevant to this appeal, eliminated the six-level enhancement and corresponding level increase under § 2B1.1(b)(18)(A)(iii) and (18)(B) and substituted a mutually exclusive four-level enhancement under § 2B1.1(b)(18)(A)(ii). In its response, the Government stated that Brown "appear[ed] to object to the loss figure [and] the 6 level increase pursuant to § 2B1.1(b)(18)(A)(iii) for a substantial disruption of a critical infrastructure." The Government contended that the § 2B1.1(b)(18)(A)(iii) enhancement was correctly applied because Brown "shut down nine (9) [of] CITI's routers, causing a substantial disruption to CITI's call centers, and deleting essential encryption in the ATM systems and Global Transaction systems."

         At sentencing, the district court concluded that the $56, 202 figure included in the PSR's loss calculation as the amount attributable to increased customer contacts with Citibank's call center was too speculative and thus determined that the total loss suffered was $77, 200. This lowered Brown's Guidelines range to thirty-seven to forty-six months of incarceration. On the Government's request, the district court then addressed other objections implicit in Brown's sentencing memorandum, ruling that "[t]o the extent those were objections, they are overruled." Citing Brown's otherwise upstanding personal history, the district court found that Brown's conviction constituted aberrant conduct and downwardly departed under U.S.S.G. § 5K2.20, imposing a sentence of 21 months of incarceration followed by two years of supervised release.

         Brown appeals, challenging only the application of the enhancements under U.S.S.G. § 2B1.1(b)(18)(A)(iii) and (18)(B) for "substantial disruption of a critical infrastructure."


         We review a district court's interpretation and application of the Guidelines de novo. United States v. Hernandez, 876 F.3d 161, 164 (5th Cir. 2017). However, when a defendant fails to raise a claim below, we review for plain error only. Puckett v. United States, 556 U.S. 129, 134-35 (2009).

         The Government argues that Brown failed to preserve his issue on appeal by not raising it before the district court and, consequently, his claim is subject to plain error review. In order to preserve an argument for appeal, it "must be raised to such a degree that the district court has an opportunity to rule on it." United States v. Soza, 874 F.3d 884, 889 (5th Cir. 2017) (quoting Dallas Gas Partners, L.P. v. Prospect Energy Corp., 733 F.3d 148, 157 (5th Cir. 2013)). "The raising party must present the issue so that it places the opposing party and the court on notice that a new issue is being raised." Id. (quoting Kelly v. Foti, 77 F.3d 819, 823 (5th Cir. 1996)). The appellant need not cite directly to the provision at issue so long as his objection below offered the opposing party and district court a fair opportunity to respond to its contention that a sentencing enhancement should not apply. United States v. Ocana, 204 F.3d 585, 589 (5th Cir. 2000) (finding issue preserved for appeal where appellant "did not specifically cite to the USSG section which the PSR applied, [but] she did make a general objection that notified the court of her disagreement" with the challenged enhancement).

         Brown's sentencing memorandum did not explicitly argue that his conduct did not amount to a substantial disruption of critical infrastructure. However, he did directly dispute the calculation of his Guidelines range, proposing an alternative calculation that ...

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