United States v. Jones ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALSDecember 12, 2012
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
__________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 12-4021
v. (D.Ct. No. 1:11-CR-00082-DB-1)
(D. Utah)
DENNIS LEE JONES,
Defendant-Appellant.
______________________________
ORDER AND JUDGMENT *
Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
Circuit Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Appellant Dennis Lee Jones appeals his sixty-month sentence, arguing his
*
This order and judgment is not binding precedent except under the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.
sentence is procedurally unreasonable because the district court enhanced his
sentence two levels under United States Sentencing Guidelines (“Guidelines” or
“U.S.S.G.”) § 2K2.1(b)(1)(A) for relevant conduct involving three or more
firearms. We exercise our jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28
U.S.C. § 1291 and affirm Mr. Jones’s sentence.
I. Factual Background
On or before April 25, 2011, Dustin John, Mr. Jones, and Mr. Jones’s
girlfriend, Tara Rust, drove to her aunt’s neighbor’s home with the intent to
burglarize it, after learning the occupant spent little time there. While Ms. Rust
waited in her vehicle, Mr. Jones and Mr. John broke into the home and stole
several items, including jewelry, coins, three rifles, a shot gun, and a safe, which
they loaded into the vehicle. They returned to Ms. Rust’s and Mr. Jones’s home,
where Mr. John was also staying. Mr. John then cut the hinges off the safe,
which contained two revolvers and additional jewelry. Ms. Rust and Mr. Jones
kept the jewelry, while Mr. John allegedly took the firearms to his grandmother’s
home. Later, based on a tip, officers recovered one of the stolen rifles from the
rafters of Mr. Jones’s and Ms. Rust’s garage as well as the stolen jewelry in their
bedroom.
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II. Procedural Background
An indictment issued, which stated in Count III that Mr. Jones and the
others:
knowingly received, possessed, concealed, stored, bartered, and sold
stolen firearms, ... shipped or transported in interstate commerce,
namely (1) Smith & Wesson model 300 rifle; (2) Remington, model
700, 30-06 rifle; (3) Winchester .22 caliber rifle; (4) Mossberg 12
gauge shotgun; (5) Smith & Wesson .357 Magnum revolver; and/or
(6) Smith & Wesson .44 magnum revolver, knowing and having
reasonable cause to believe the firearms had been stolen, all in
violation of 18 U.S.C. § 922(j).
Following his arrest, Mr. Jones admitted to burglarizing the home in question and
explained he took the jewelry and coins from the home, while Mr. John carried
out the firearms and safe. In a written statement, Mr. Jones said, “I didn’t want
nothin’ to do with the guns so I don’t know what [Mr. John] planned to do with
them.” He also indicated he was not aware Mr. John had brought one of the rifles
back to their home. Later, in his statement in advance of his guilty plea, Mr.
Jones admitted he possessed the Smith & Wesson .357 Magnum revolver when it
was removed from the safe and he physically handled it. He then pled guilty to
Count III of the indictment with respect to only that firearm.
Following his guilty plea, a probation officer prepared a presentence report,
calculating Mr. Jones’s sentence under the applicable 2011 Guidelines. The
probation officer set Mr. Jones’s base offense level at twenty pursuant to U.S.S.G.
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§ 2K2.1(a)(3) for possession of a stolen firearm subsequent to sustaining a felony
conviction for a controlled substance offense. Because relevant conduct during
the offense involved three to seven firearms, the probation officer also
recommended the contested two-level offense increase under U.S.S.G.
§ 2K2.1(b)(1)(A). She also recommended a four-level increase under U.S.S.G.
§ 2K2.1(b)(6) for Mr. Jones’s possession of a firearm in connection with his
felony offense and a three-level reduction under U.S.S.G. § 3E1.1 for his
acceptance of responsibility, resulting in a total offense level of twenty-three.
A total offense level of twenty-three, together with Mr. Jones’s criminal
history category of IV, resulted in a recommended advisory Guidelines range of
seventy to eighty-seven months imprisonment. The probation officer also stated
an upward departure may be warranted based on Mr. Jones’s four additional
pending state criminal cases involving significant felony offenses unrelated to the
instant offense. The probation officer also pointed out Mr. Jones’s extensive
substance abuse, including methamphetamine use from 1993 or 1994 until his
instant arrest, and the fact he presently suffers from major medical problems,
including pulmonary arterial hypertension and a weak and enlarged heart, for
which he is on several medications.
Mr. Jones filed a formal objection to the probation officer’s inclusion of the
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contested two-level increase under U.S.S.G. § 2K2.1(b)(1)(A) for relevant
conduct involving three to seven firearms. While Mr. Jones admitted he
participated in the burglary, he contested the increase based on his prior statement
he did not want the stolen firearms, the fact he made only fleeting contact with
the handgun he physically held, and his assertion he played no role in attempting
to sell the firearms and did not intend to receive proceeds from their sale. In
apparent reference to his constructive possession of the rifle found in the rafters
of his garage, and express reference to the revolver he handled, Mr. Jones argued
no reliable evidence showed he sought to obtain, possess, or distribute more than
two firearms. He also asserted his diminished medical condition prevented him
from carrying the safe out of the home.
At sentencing, Mr. Jones renewed his objection to the two-level
enhancement. In opposition, the government argued Mr. Jones was responsible
for the conduct of Mr. John and otherwise aiding, assisting, or abetting him in his
possession of all the firearms. After considering the parties’ arguments, the
district court denied Mr. Jones’s objection, finding “by a preponderance of the
evidence that the government ... met its burden of persuading [it] that there were
three or more firearms involved” in the offense for the purpose of applying the
two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A). It further stated:
I agree in particular with [government counsel] and his statement
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about the Guidelines anticipating that each willing participant in this
caper is responsible for what the mission was intended to do and
what it actually did. Under those circumstances, I find that he is
appropriately credited with an enhancement for the offense involving
more than two firearms.
Before rendering a sentence, the district court also considered Mr. Jones’s
argument that both his lack of involvement with the firearms and serious medical
condition warranted a downward variance as well as the government’s argument
his medical condition did not alter his capacity to re-offend, as evidenced by his
additional pending state felony cases. After hearing these arguments, the district
court sentenced Mr. Jones to a below-Guidelines-range sentence of sixty months
imprisonment based on his “extraordinary physical impairment,” even though it
also found his impairment “has been largely by his own choices of health
debilitating activities.”
III. Discussion
On appeal, Mr. Jones argues his sentence is procedurally unreasonable
because the district court failed to make the necessary findings and misapplied the
law in enhancing his sentence two levels under U.S.S.G. § 2K2.1(b)(1)(A) for
relevant conduct involving three or more firearms. In support, Mr. Jones asserts
§ 2K2.1(b)(1)(A) requires actual, constructive, or planned possession of the
firearms at issue, rather than a finding of “pure enterprise liability,” “accomplice
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liability,” or “joint enterprise,” as determined by the district court in describing it
as a burglary “caper.” He contends “the district court failed to make any explicit
finding as to the fundamental possession issue,” imposing the enhancement
instead on its erroneous holding such a joint burglary caper included the theft of
the multiple firearms stolen. He suggests no evidence infers they knew the house
contained firearms, they were the object of the burglary, or that Mr. Jones
intended to steal or possess firearms. Instead, Mr. Jones argues, the record shows
he and Ms. Rust opposed having any guns in their home, which is why they took
the jewelry instead of the firearms. 1
We review a sentence for reasonableness, giving deference to the district
court under an abuse of discretion standard. See United States v. Smart, 518 F.3d
800, 802, 805 (10th Cir. 2008). Thus, we review “‘all sentences–whether inside,
just outside, or significantly outside the Guidelines range–under a deferential
abuse of discretion standard’” in which we afford substantial deference to the
district court. Id. at 806 (quoting Gall v. United States, 552 U.S. 38, 41 (2007)).
“Our appellate review for reasonableness includes both a procedural component,
... as well as a substantive component, which relates to the length of the resulting
1
While irrelevant to our disposition on appeal, Mr. Jones states evidence
shows he and Ms. Rust were “opposed to weapons following the death of a family
member” but fails to cite to the record in support of such “evidence,” nor has our
review of the record disclosed such evidence.
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sentence.” Id. at 803. Here, Mr. Jones appeals only the procedural component
based on his contention the district court impermissibly applied a two-level
enhancement under § 2K2.1(b)(1) without finding he constructively possessed the
firearms at issue.
“Procedural reasonableness addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, ... relied on clearly
erroneous facts, or failed to adequately explain the sentence.” United States v.
Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). In determining whether the
district court properly calculated a sentence, we review its legal conclusions de
novo and its factual findings for clear error. See United States v. Kristl, 437 F.3d
1050, 1054 (10th Cir. 2006) (per curiam). In reviewing sentencing
enhancements, including the district court’s factual findings, we “view the
evidence and inferences therefrom in the light most favorable to the district
court’s determination.” United States v. Mozee, 405 F.3d 1082, 1088 (10th Cir.
2005). “ A finding of fact is clearly erroneous only if it is without factual support
in the record or if the appellate court, after reviewing all of the evidence, is left
with a definite and firm conviction that a mistake has been made.” United States
v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011) (internal quotation marks
omitted). With regard to the explanation a district court provides, it must “‘state
in open court the reasons for its imposition of the particular sentence’” and satisfy
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us that it “has considered the parties’ arguments and has a reasoned basis for
exercising [its] own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007) (quoting 18 U.S.C. § 3553(c)). While a court must provide
at least a general statement of its reasons for the sentence imposed, it “‘need not
explicitly refer to either the § 3553(a) factors or respond to every argument for
leniency that it rejects in arriving at a reasonable sentence.’” United States v.
Lente, 647 F.3d 1021, 1034-35 (10th Cir. 2011) (quoting United States v.
Martinez-Barragan, 545 F.3d 894, 903 (10th Cir. 2008)).
In addition, we give due deference to the district court’s application of the
Guidelines to the facts. See Maestas, 642 F.3d at 1319. While we give the
district court deference when there is a “range of possible outcomes the facts and
law at issue can fairly support,” we also “will not hesitate to find abuse where a
decision is either based on a clearly erroneous finding of fact or an erroneous
conclusion of law or manifests a clear error of judgment.” United States v.
McComb, 519 F.3d 1049, 1053-54 (10th Cir. 2007) (internal quotation marks
omitted). Finally, the government bears the burden of proving facts in support of
a sentencing enhancement by a preponderance of the evidence, see United States
v. Keifer, 198 F.3d 798, 800 (10th Cir. 1999), including those pertaining to
relevant conduct. See United States v. Garcia, 411 F.3d 1173, 1177 (10th Cir.
2005).
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Section 2K2.1 of the Guidelines establishes the base offense level as well
as certain enhancements for offenses involving the “unlawful receipt, possession,
or transportation of firearms.” U.S.S.G. § 2K2.1(a) and (b). Section 2K2.1 also
recommends a two-level offense increase “[i]f the offense involved three or more
firearms.” U.S.S.G. § 2K2.1(b)(1)(A). Commentary to § 2K2.1 states, “[f]or
purposes of calculating the number of firearms under subsection (b)(1), count
only those firearms that were unlawfully sought to be obtained, unlawfully
possessed, or unlawfully distributed, including any firearm that a defendant
obtained or attempted to obtain by making a false statement to a licensed dealer.”
U.S.S.G. § 2K2.1(b)(1) cmt. n.5.
“A defendant is not only responsible for the firearms he personally and
unlawfully sought to obtain, possess, or distribute,” but “he is also responsible for
his relevant conduct” related to the offense. United States v. Damon, 595 F.3d
395, 401 (1st Cir. 2010). Accordingly, a district court, in deciding whether a two-
level enhancement applies under § 2K2.1(b)(1), may consider the defendant’s
“relevant conduct,” as outlined in U.S.S.G. § 1B1.3. 2 It provides the following
“shall be taken into account” when determining “relevant conduct”:
2
“An ‘offense,’ as defined by the Sentencing Guidelines, includes the
offense of conviction and all relevant conduct under § 1B1.3, unless a different
meaning is otherwise specified.” United States v. Tagore, 158 F.3d 1124, 1128
(10th Cir. 1998) (citing to U.S.S.G. § 1B1.3 cmt. n.1).
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(1)(A) all acts and omissions committed, aided, abetted, [or]
counseled, ... by the defendant; and
(B) in the case of a jointly undertaken criminal activity (a criminal
plan, scheme, endeavor, or enterprise undertaken by the defendant in
concert with others, whether or not charged as a conspiracy), all
reasonably foreseeable acts and omissions of others in furtherance of
the jointly undertaken criminal activity, that occurred during the
commission of the offense of conviction, [or] in preparation for that
offense ....
U.S.S.G. § 1B1.3(a)(1)(A) and (B). Commentary to § 1B1.3 states “a defendant
is accountable for the conduct (acts and omissions) of others that was both ... in
furtherance of the jointly undertaken criminal activity” and “reasonably
foreseeable in connection with that criminal activity.” U.S.S.G. § 1B1.3 cmt. n.2.
In making a relevant conduct assessment, we have held the district court may
consider the dismissed counts of an indictment. See United States v. Gay, 240
F.3d 1222, 1229 n.6 (10th Cir. 2001).
In this case, it is clear Mr. Jones, Ms. Rust, and Mr. John participated in a
jointly-undertaken criminal scheme, plan, or enterprise to commit burglary of the
home in question. While Mr. Jones and the others may not have known the exact
contents of the home they intended to burglarize, it is evident they intended to
steal and thereby illegally possess items of value and, in so doing, took jewelry,
coins, and the firearms identified in the indictment. It is also evident Mr. John
took the firearms in furtherance of their jointly-undertaken criminal activity, and
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by participating in the burglary, Mr. Jones not only aided and abetted him in the
taking of the firearms but could reasonably have foreseen Mr. John would obtain
or seek to obtain firearms as items of value. 3 Indeed, Mr. Jones knew at the time
the burglary was transpiring that Mr. John removed and had possession of at least
four firearms from the home.
These are the grounds on which the government’s argument was predicated.
By expressly agreeing with that argument and further explaining Mr. Jones, as a
willing participant, was responsible for the burglary caper, the district court
provided a sufficient explanation for the enhancement. Moreover, we give due
deference to the district court’s application of § 2K2.1(b)(1)(A) to the facts and
further conclude the facts and the law fairly support the district court’s conclusion
Mr. Jones is responsible for Mr. John’s unlawful taking and possession of at least
four firearms removed from the home, regardless of whether Mr. Jones knew in
advance those firearms were contained in the home or did not physically remove
them himself.
While this alone is sufficient for the two-level enhancement, we disagree
3
Arguably, while the commentary limiting § 2K2.1(b)(1) to “firearms that
were unlawfully sought to be obtained” is most likely directed to the illegal
purchase of firearms, the commentary also does not limit the enhancement to
exclude other conduct of unlawfully seeking to obtain firearms, such as through a
burglary.
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with Mr. Jones’s argument he did not “constructively possess” more than two
firearms. This is because Mr. Jones admitted to watching Mr. John take the
firearms from the home and place them inside the vehicle they used to flee the
scene of the burglary. As a result, he not only participated in furtherance of the
joint criminal activity of burglary in which Mr. John unlawfully took possession
of the firearms, but he had knowing constructive possession of four of the
firearms in the vehicle he jointly occupied. See United States v. Gambino-Zavala,
539 F.3d 1221, 1229 (10th Cir. 2008) (holding constructive possession in a joint
occupancy situation does not require a showing defendant intended to exercise
dominion or control over the firearms). Thus, regardless of his self-serving
assertion he did not want to have anything to do with the firearms, Mr. Jones
constructively possessed the four firearms placed in the car, which, together with
his actual possession of the one removed from the safe, is also sufficient to apply
a two-level enhancement under § 2K2.1(b)(1) for relevant conduct involving three
or more firearms.
For these reasons, the district court’s application of the two-level
enhancement under U.S.S.G. § 2K2.1(b)(1)(A) for relevant conduct involving
three or more firearms has factual support in the record, and we cannot say the
district court’s finding is clearly erroneous or that we are left with a definite and
firm conviction that a mistake has been made. Accordingly, the district court did
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not abuse its discretion or otherwise err in applying the two-level enhancement
under § 2K2.1(b)(1) for the purpose of calculating his sentence. As a result, Mr.
Jones’s sixty-month below-Guidelines sentence is procedurally reasonable.
IV. Conclusion
Accordingly, we AFFIRM Mr. Jones’s sentence.
Entered by the Court:
WADE BRORBY
United States Circuit Judge
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