United States v. Jones, 10th Cir. (2017)
United States v. Jones, 10th Cir. (2017)
Plaintiff - Appellee,
v. No. 16-5036
(D.C. No. 4:06-CR-00160-JHP-1)
MORRIS RICHARD JONES, III, (N.D. Okla.)
Defendant - Appellant.
_________________________________
Appellant Morris Richard Jones, III, challenges his four-year prison sentence for
jurisdiction under 18 U.S.C. 3742(a) and 28 U.S.C. 1291, we affirm his sentence.
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. After
examining the briefs and appellate record, this panel has determined unanimously to
honor the parties request for a decision on the briefs without oral argument. See
Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted
without oral argument.
I. BACKGROUND
On February 28, 2007, Mr. Jones pled guilty to (1) using a firearm during a drug
release.
On November 23, 2012, Mr. Jones began serving his term of supervised release.
As a condition of release, Mr. Jones agreed not to possess or use controlled substances.
Finding that Mr. Jones had violated that condition by using the controlled substance
phencyclidine (PCP), the district court revoked Mr. Joness supervised release in
February 2015. The court sentenced Mr. Jones to 12 months in prison, followed by a
four-year term of supervised release with the same condition not to possess or use
controlled substances.
On February 1, 2016, Mr. Jones began serving his second term of supervised
release. On February 9, 2016, Mr. Jones tested positive for PCP. On February 24, 2016,
he admitted his PCP use to his probation officer, who then moved to revoke Mr. Joness
supervised release.
The district court held a hearing on the revocation motion on March 23, 2016.
Before the hearing, the probation officer submitted a memorandum to the court that
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calculated Mr. Joness criminal history as category IV and his offense as a Grade C
violation under the United States Sentencing Guidelines (the Guidelines). Those
At the hearing, the court found Mr. Jones had violated the terms of his supervised
release by using PCP. Mr. Jones did not contest that finding. The court then turned to
U.S.C. 3583(e)(3) allowed for terms of up to five years for his 924(c) offense and two
The government urged the court to look towards the higher end of the
[G]uidelines because this was Mr. Joness second violation of supervised release and he
had violated his conditions shortly after his release from prison. Defense counsel urged
leniency, highlighting that Mr. Joness offense arose from his easy access to PCP and the
The court imposed a sentence of four years in prison for the 924(c) offense and
two years for the 922(g) offense, to run concurrently. The court justified its decision to
vary upward from the Guidelines based on (1) policy statements in the Guidelines, (2) the
nature and circumstances of Mr. Joness violations, (3) Mr. Joness history and
characteristics, (4) the statutory authorizations in 18 U.S.C. 3583(e)(3), and (5) the need
for the sentence to be reasonable, provide just punishment for noncompliance, promote
respect for the law, deter Mr. Jones and others, and protect the public. ROA, Vol. II at
21-22. The court stated: Mr. Jones, you have shown little regard for the rules and
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conditions of supervised release by using illegal drugs while on supervised release. Id.
at 22.
The court also stated that a sentence within the [G]uideline[s] range of
discussed more below, Mr. Jones argues that statement warrants reversal because it
contradicts the courts ruling imposing a sentence above the Guidelines range.
II. DISCUSSION
sentence and not its procedural reasonableness.1 We reject his challenge and affirm.
A. Standard of Review
substantive component. United States v. Friedman, 554 F.3d 1301, 1307 (10th Cir.
2009). Review for procedural reasonableness focuses on whether the district court
committed any error in calculating or explaining the sentence. Id. (citing Gall v.
United States, 552 U.S. 38, 51 (2007)). Review for substantive reasonableness
focuses on whether the length of the sentence is reasonable given all the
1
The government notes that Mr. Jones did not challenge the substantive
reasonableness of his sentence in district court. A defendants failure to raise a
substantive-reasonableness challenge in district court does not foreclose our review
of it on appeal. See United States v. Walker, -- F.3d --, 2017 WL 34457, *2 (10th
Cir. Jan. 4, 2017) (Generally, claims of substantive reasonableness need not be
raised in district court.).
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circumstances of the case in light of the factors set forth in 18 U.S.C. 3553(a). Id.
(quotations omitted).
regardless of whether the sentence is inside or outside the Guidelines range. Gall, 552
U.S. at 51.
Under the abuse-of-discretion standard, we must take into account the totality of
the circumstances, including the extent of any variance from the Guidelines range. Id.
reasonableness. Id. But the inverse is not true, as sentences falling outside the
B. Legal Standard
A district court may vary from the sentencing range under the Guidelines after
U.S.C. 3553(a) factors. Gall, 552 U.S. at 50. When revoking a term of supervised
release, the relevant 3553(a) factors include: (1) the nature and circumstances of the
offense and history and characteristics of the offender; (2) the need for a sentence to
reflect the basic aims of punishment including (a) to deter criminal conduct, (b) to protect
the public, and (c) to provide the defendant with needed educational, vocational, medical,
or correctional training or treatment; (3) the applicable Guidelines range; (4) any
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pertinent Sentencing Commission policy statements; (5) the need to avoid unwarranted
sentencing disparities; and (6) the need for restitution. 18 U.S.C. 3583(e), 3553(a).
Before varying from the Guidelines, the district court must consider the extent of
the deviation and ensure that the justification is sufficiently compelling to support the
degree of the variance. Gall, 552 U.S. at 50. Larger variances from the Guidelines
C. Analysis
the courts upward variance from 12 months (the upper end of the Guidelines range) to
48 monthsa 300 percent increaseto the percentage variances in other cases where we
have addressed substantive reasonableness challenges. The Supreme Court has warned
against a rigid mathematical formula that uses the percentage of a [variance] as the
standard for determining the strength of the justifications required for a specific
sentence. Id. at 47. Instead, we must determine whether the court had a sufficiently
compelling justification to support the variance. Id. at 50. The district court must have
provided a more significant justification to support a large variance. Id. The Supreme
Court has rejected, however, that a court must provide extraordinary justifications to
The district court provided sufficient justification here, relying on several relevant
3553(a) factors. Specifically, the court reasoned that the history and characteristics of
Mr. Jonesthe first 3553(a) factorsupported an upward variance because Mr. Jones
had shown little regard for the rules and conditions of supervised release by using illegal
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drugs while on supervised release. ROA, Vol. II at 22. The court also stated that an
factorincluding to (a) specifically deter Mr. Jones from committing other crimes,
(b) generally deter others from committing such crimes, and (c) protect the public. The
Mr. Jones faults the district courts reasoning, characterizing it as paltry and
perfunctory. Aplt. Br. at 12. We disagree. Although the court stated only briefly how
Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (rejecting a substantive-reasonableness
challenge when the defendant argued the court made only a passing reference to a single
sentencing factor). Relatedly, the court did not rely too heavily on one factor to the
sentence was substantively unreasonable when the court focused almost exclusively on
one factor and failed to give any weight to other relevant factors). And although the
sentence exceeded the Guidelines range, it fell within the statutorily permitted ranges of
48 and 24 months for Mr. Joness 924(c) offense and 922(g)(1) offense, respectively.2
2
On appeal, Mr. Jones does not challenge that his sentence was authorized
under 3583. Under 3583(b), a court may impose terms of supervised release for a
class A felony of not more than five years and for a class C felony of not more than
three years. Under 3583(e)(3), a court may revoke a term of supervised release,
Continued . . .
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See United States v. Simons, 592 F. Appx 717, 720 (10th Cir. 2014) (unpublished)
departure from the four-to-ten month Guidelines range, when the sentence was statutorily
First, Mr. Jones argues the courts statement that a sentence within the
Guidelines range was appropriate contradicts its decision to sentence Mr. Jones outside
the Guidelines range. Read in the context of the courts entire sentencing decision, this
was a misstatement. By stating that the four-year sentence was within the authority
specified in United States Code, Section 3583(e) (3), ROA, Vol. II at 22, the court
mitigated any potential confusion about its intent to sentence Mr. Jones outside the
and require the defendant to serve in prison all or part of the term of supervised
release authorized by statute for the offense that resulted in such term of supervised
release. The prison term, however, must not exceed five years if the offense that
resulted in the term of supervised release is a class A felony, and two years if the
offense is a class C felony. Id.
The district court here determined that Mr. Joness 924(c) offense is a class
A felony and the 922(g)(1) offense is a class C felony. ROA, Vol. II at 18. We
agree, and Mr. Jones does not dispute those classifications. See 18 U.S.C. 3559
(providing the criteria to classify felonies). Mr. Joness four-year sentence was
therefore authorized under 3583(e)(3).
3
We find the reasoning of this unpublished opinion, though not precedential,
to be instructive. See 10th Cir. R. 32.1 (Unpublished decisions are not precedential,
but may be cited for their persuasive value.); see also Fed. R. App. P. 32.1.
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Guidelines range. The court also omitted the contradictory statement in its written
statement of reasons.
Second, Mr. Jones raises various arguments that challenge the use of incarceration
to punish drug addicts. His arguments, however, are insufficient to undermine the district
courts justifications based on the 3553(a) factors and are best addressed to Congress.
III. CONCLUSION
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