United States v. Renaldo Cassinova Jones , 156 F. App'x 207 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 29, 2005
No. 04-14217
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-14006-CR-DMM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RENALDO CASSINOVA JONES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 29, 2005)
Before TJOFLAT, DUBINA and WILSON, Circuit Judges.
PER CURIAM:
Renaldo Cassinova Jones appeals his 235-month sentence for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. On
appeal, Jones argues that, under United States v. Booker, 543 U.S. ___, 125 S. Ct.
738, 160 L. Ed. 2d 621 (2005), the district court committed constitutional error by
enhancing his sentence under United States Sentencing Guidelines Manual §4B1.1
based upon judicially-found facts, specifically the facts surrounding his 1989 arrest
and subsequent guilty plea, stemming from a home invasion. Jones contends that,
in relation to the 1989 home invasion, he pled guilty to a misdemeanor battery, not
a sexual battery, as stated in the Presentence Investigation Report (“PSI”). He
asserts that the characterization of his conviction as a sexual battery led to the
PSI’s determination that he was a career offender, which resulted in a total offense
level of 34, rather than 26. Jones argues that, in light of Shepard v. United States,
___ U.S. ___, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), the district court erred in
determining the nature of his prior conviction based on an arrest affidavit. Jones
also asserts that the district court committed statutory Booker error by sentencing
him under a mandatory guidelines scheme, and that the government cannot show
that the error was harmless. Finally, Jones argues that his sentence was
unreasonable.
Because Jones did not raise a Booker challenge to the guidelines calculations
below, we review his claim only for plain error. United States v. Dowling, 403
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F.3d 1242, 1246-47 (11th Cir. 2005), cert. denied (U.S. Oct. 11, 2005) (No. 05-
6234). Under a plain error analysis, a defendant must show (1) an error, (2) that is
plain, and (3) that affects substantial rights. Id. at 1247 (internal quotation
omitted). If the defendant satisfies this burden, we may then exercise our
discretion to notice the error if the error “seriously affects the fairness, integrity, or
public reputation of judicial proceedings.” Id. (internal quotations and citations
omitted). In the context of Booker errors, the plain error test is satisfied only when
the defendant can show that “there is a reasonable probability of a different result.”
Id. (internal quotation omitted).
In Booker, the Supreme Court concluded that the mandatory nature of the
Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s
guarantee to the right to a jury trial. Booker, 543 U.S. at ___, 125 S. Ct. at 749-51.
There are two types of Booker errors: (1) a constitutional error, which occurs when
an individual’s sentence is enhanced based on judicial findings that go beyond the
facts admitted by the defendant or found by the jury; and (2) a statutory error,
which occurs when a defendant is sentenced under a mandatory guidelines system.
United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).
In this case, any constitutional error that the district court committed in
determining that Jones’s criminal history included a sexual battery as opposed to a
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simple battery is not reversible plain error because the career offender
enhancement still would have applied, even without inclusion of this conviction.
Furthermore, although the district court committed statutory Booker error by
sentencing him at the high end of the guideline range, Jones cannot show that his
substantial rights were affected. In fact, the district court referred to “the criminal
history as the reason for imposing a sentence at the high end of the guideline
range,” and emphasized Jones’s record of “serious crime,” including multiple drug
offenses, and his propensity to threaten violence and commit violent acts. Because
Jones cannot show a reasonable probability of a different result, the district court
did not commit reversible plain error when it sentenced him under the mandatory
guidelines scheme.
Jones next argues that, due to the facts of his case and the “lack of evidence
presented at sentencing,” his sentence was unreasonable. However, when a
defendant is sentenced pre-Booker and fails to preserve the issue below, we do not
review for reasonableness; rather, we review for plain error. See United States v.
Robles, 408 F.3d 1324, 1327-28 (11th Cir. 2005). Under such an analysis, as we
have already stated, Jones’s claim that the district court committed reversible error
in determining his sentence is without merit.
Upon review of the record and consideration of the parties’ briefs, we
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discern no reversible error. Accordingly, we affirm.
AFFIRMED.
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