United States v. Jones ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 4, 2009
No. 08-30176
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TONY JONES, also known as Boochie
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:06-CR-269-4
Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
Tony Jones appeals the total 240-month sentence imposed following his
guilty plea conviction for conspiring to distribute 50 grams or more of cocaine
base and a quantity of cocaine hydrochloride and conspiring, during and in
relation to a drug trafficking crime, to use, carry, and possess firearms in
furtherance of the drug trafficking crime. Jones argues that the district court
erred by treating his 2003 state felony drug conviction as a “prior conviction” for
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-30176
purposes of enhancing his sentence pursuant to 21 U.S.C. § 841(b)(1)(A). He
argues that because he was convicted of the state felony drug offense during the
time period of the conspiracy alleged in the federal indictment, the state felony
drug conviction could not have been a “prior conviction” for purposes of
§ 841(b)(1)(A).
The issue is a question of law ordinarily subject to de novo review. See
United States v. Mankins, 135 F.3d 946, 949 (5th Cir. 1998). The Government
argues that review should be limited to plain error. We need not decide the
question of the appropriate standard of review because the district court did not
err.
The mandatory minimum term of imprisonment for § 841(a) offenses
increases to 20 years of imprisonment if the defendant “commits such a violation
after a prior conviction for a felony drug offense has become final.”
§ 841(b)(1)(A). Jones does not dispute that his state conviction was final or that
the conviction was for a felony drug offense. The issue for appeal is whether the
conviction constitutes a “prior conviction” for purposes of § 841(b)(1)(A). The
sentence enhancement was proper because Jones’s 2003 state felony drug
conviction was final well before the 2006 end of the conspiracy as alleged in the
federal indictment. See United States v. Green, 293 F.3d 886, 894 (5th Cir.
2002); United States v. Wheelock, No. 93-8433, 21 F.3d 1109, 1994 WL 171737
at *3 (5th Cir. Apr. 29, 1994) (unpublished); see also 5 TH C IR. R. 47.5.3
(unpublished opinions issued before January 1, 1996, are precedent); c.f. United
States v. Hass, 150 F.3d 443, 450 (5th Cir. 1998).
Accordingly, the judgment of the district court is AFFIRMED.
2