United States v. Timothy Jones , 699 F. App'x 325 ( 2017 )

Case: 16-30956 Document: 00514201904 Page: 1 Date Filed: 10/19/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-30956
Fifth Circuit
FILED
Summary Calendar October 19, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
TIMOTHY JONES, also known as Lucci Jones, also known as King Lucci
Jones, also known as Lucci Loco Jones,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:15-CR-174-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Timothy Jones appeals his life sentence imposed following his jury trial
convictions for conspiracy to commit sex trafficking of children; sex trafficking
of minors; sex trafficking by use of force, fraud, or coercion; enticement of a
minor to travel to engage in prostitution through means of interstate
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 16-30956
commerce; and use of interstate facilities to promote prostitution and unlawful
activities.
Jones argues for the first time on appeal that the district court erred in
separating his conspiracy conviction into multiple “pseudo offenses,” which had
not been identified as objects of the conspiracy and were not found to be proved
beyond a reasonable doubt by the district court. He contends that there should
not have been a multi-level enhancement of his offense level because the
district court did not expressly or implicitly make the findings required under
U.S.S.G. § 1B1.2(d), comment. (n.4). Jones made only a general objection to
the manner in which counts were grouped for calculating the sentencing
guidelines range and, thus, review is for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007); Puckett v. United States, 556 U.S.
129, 135 (2009).
The district court must treat a count charging a conspiracy to commit
more than one offense as if the defendant was convicted on a separate count
for each underlying offense; however, in the absence of a verdict or plea on
those underlying “pseudo” offenses, an enhancement cannot be made unless a
reasonable trier of fact would find the defendant guilty of those underlying
offenses beyond a reasonable doubt. U.S.S.G. § 1B1.2(d); § 1B1.2, comment.
(n.4); United States v. Fisher, 22 F.3d 574, 577 (5th Cir. 1994). Evidence was
introduced at trial that Jones directed his victim to engage in commercial sex
acts on five specific dates as well as on other occasions. Further, the district
court concluded at sentencing that the evidence of Jones’s guilt was
overwhelming. On this record, we see no plain error. See Fisher, 22 F.3d at
576-77.
Jones also argues that the pseudo offenses should not have been
considered because they were not specifically alleged in the conspiracy charge.
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We have not addressed whether individual offenses must be alleged in an
indictment for purposes of Application note 4 to § 1B1.2, but other circuits have
rejected such a reading. See United States v. Ford, 761 F.3d 641, 659-60 (6th
Cir. 2014); United States v. Robles, 562 F.3d 451, 455 (2d Cir. 2009). Any error
was, therefore, not clear or obvious. See United States v. Salinas, 480 F.3d
750, 759 (5th Cir. 2007).
Second, Jones argues that the district court erred in enhancing his
offense level based on the victim suffering a “serious bodily injury” because any
injury suffered did not meet the definition of that term under the Guidelines.
Jones did not make this specific objection to the enhancement in the district
court so review again is for plain error. See Puckett 556 U.S. at 135.
Jones is correct that the district court could not rely on the criminal
sexual abuse taken into account in determining his base offense levels. See
U.S.S.G. § 2A3.1, comment. (n.1). But the preponderance of the evidence
showed that Jones inflicted serious bodily injury on the victim, aside from
subjecting her to criminal sexual abuse. The district court did not commit clear
or obvious error in applying the serious bodily injury enhancements under
§ 2A3.1(b)(4)(B). See United States v. Bell, 367 F.3d 452, 477 (5th Cir. 2004).
Finally, the district court did not plainly err in calculating Jones’s base
offense level on two of the sex trafficking offenses based on the wrong statute
of conviction. Jones’s argument is premised on the written judgment, which
states only that Jones was convicted under § 1591(b)(2). However, the
indictment alleged that Jones violated both 18 U.S.C. § 1591(b)(1) and (b)(2),
and the jury verdict shows that it found Jones guilty of violating both
subsections. Jones’s contention that there was an error in the base offense
level therefore is without merit. However, the omission of § 1591(b)(1) from
the judgment is a clerical error, and we remand this matter to the district court
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for the limited purpose of correcting it. See United States v. Johnson, 588 F.2d
961, 964 (5th Cir. 1979).
AFFIRMED; REMANDED FOR LIMITED PURPOSE OF
CORRECTING CLERICAL ERROR.
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