United States v. Jones , 135 F. App'x 651 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 27, 2005
Charles R. Fulbruge III
Clerk
No. 03-31163
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TYRONE JONES,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 02-CR-299-All-I
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Before JONES, BARKSDALE and PRADO, Circuit Judges.
PER CURIAM:*
Tyrone Jones appeals his jury conviction for being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)
and for possession of a firearm after entry of a domestic
violence restraining order in violation of 18 U.S.C. § 922(g)(8).
Jones argues that the district court abused its discretion in
allowing a police officer to describe the content of an anonymous
telephone tip that led them to Jones. Jones has not shown that
the district court abused its discretion in admitting this
*
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this opinion should not be published and is not precedent except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.
No. 03-31163
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evidence as the testimony was not admitted for the truth of the
matter asserted, but rather to explain what the officers did in
response to the call. See United States v. Gonzalez, 967 F.2d
1032, 1035 (5th Cir. 1992). Further, the anonymous tip did not
directly identify Jones and, therefore, it was not prejudicial
and was admissible. See United States v. Carrillo, 20 F.3d 617,
619 (5th Cir. 1994). Because admission of the testimony
concerning the anonymous tip was not an abuse of discretion,
Jones has not shown that the district court’s admission of
Officer Coleman’s testimony concerning the telephone tip or the
prosecutor’s reference to the tip in closing argument was plain
error. See United States v. Miranda, 248 F.3d 434, 443 (5th Cir.
2001).
Jones argues that the admission of the testimony concerning
the anonymous tip violated his rights under the Confrontation
Clause. Because the evidence was not admitted for the truth of
the matter asserted, the Confrontation Clause did not bar the
admission of the statement for purposes other than establishing
the truth of the matter asserted. See Crawford v. Washington,
541 U.S. 36, 59 n.9 (2004).
Jones argues that the district court abused its discretion
in allowing the Government to impeach Crystal Thomas with the
testimony of Officer Lejon Roberts concerning her prior
inconsistent statement. Thomas testified that she had never seen
Jones with a firearm. This testimony was clearly inconsistent
No. 03-31163
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with her prior statement to police that she had seen Jones with a
firearm on July 16, 2001. After the prosecutor questioned Thomas
about the prior inconsistent statement, the district court gave
Thomas an opportunity to explain or deny the statement under
FED. R. EVID. 613(b). Thomas testified that she made the prior
statement because the police threatened her. At that point,
Officer Roberts’s testimony was admissible to show that Thomas
voluntarily made this statement to him and that he did not
threatened or coerced her into making this statement. See United
States v. Lopez, 979 F.2d 1024, 1033-34 (5th Cir. 1992); see also
United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976). The
admission of the testimony thus was not prohibited by FED.
R. EVID. 608. See Lopez, 979 F.2d at 1024.
Jones argues that the district court abused its discretion
in admitting the testimony of Alcohol Tobacco and Firearms Agent
Charles Smith concerning Officer White’s prior statement to Smith
a few hours after Jones’s arrest regarding the anonymous
telephone tip. Jones has not shown that the district court
abused its discretion in admitting this testimony as he did not
specifically argue at trial that Officer White’s statement
postdated the motion to fabricate. However, any error in
admitting this testimony was harmless. See United States v.
Skipper, 74 F.3d 608, 612 (5th Cir. 1996). Defense counsel
brought out on cross-examination that Agent Smith did not
personally observe Jones’s arrest. Given that Officer Smith had
already testified concerning the anonymous tip, Agent Smith’s
No. 03-31163
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testimony regarding Officer Smith’s statement was cumulative
evidence that did not cause any further prejudice to Jones. See
id.
Jones argues that he was prejudiced by Agent Smith’s
testimony that firearms offenses are accepted for federal
prosecution only if the defendant has a serious prior felony
conviction. Jones has not shown that the admission of this
testimony was plain error. See Miranda, 248 F.3d at 443. Jones
testified that he had a prior conviction for simple burglary.
Therefore, the jury was aware of the nature of Jones’s prior
conviction. Further, the district court instructed the jury that
it should not consider Jones’s prior conviction as evidence that
he committed the offenses for which he was currently on trial.
Jurors are presumed to follow their instructions. United States
v. Wyly, 193 F.3d 289, 299 (5th Cir. 1999). Therefore, Jones has
not shown that admission of this testimony was clear or plain
error that affected his substantial rights. See Miranda,
248 F.3d at 443.
Jones argues that the trial court’s cumulative errors denied
him a fair trial. The cumulative error rule has no application
to the instant case because Jones has not identified any
individual instances of error. See United States v. Villarreal,
324 F.3d 319, 328 (5th Cir. 2003).
Jones argues that the sentencing enhancements and departure
made by the district court violated his Fifth and Sixth Amendment
rights, relying on Blakely v. Washington, 124 S. Ct. 2531 (2004).
No. 03-31163
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In the district court, Jones argued that his sentence should not
be enhanced under U.S.S.G. § 2K2.1(b)(5) based on his possession
of a firearm in connection with another felony offense,
possession of cocaine base, because he was acquitted by the jury
of possession of cocaine base. Although Jones did not expressly
argue that this enhancement violated his Sixth Amendment rights
or cite Apprendi v. New Jersey, 530 U.S. 466 (2000), or Blakely,
Jones’s argument was sufficient to preserve this issue for review
on appeal. See United States v. Akpan, ___ F.3d ___, No. 03-
20875, 2005 WL 852416 (5th Cir. Apr. 14, 2005). The Government
has not met its burden of proof to show that the district court’s
enhancement of Jones’s sentence pursuant to § 2K2.1(b)(5) was
harmless error. See id. Because Jones preserved his objection to
the sentencing enhancement under § 2K2.1(b)(5), we vacate Jones’s
sentence and remand for resentencing.**
**
Because we vacate and remand Jones’s entire sentence, we
need not and do not reach his other arguments of sentencing
errors; rather, we leave to the district court the decision
whether, in its discretion, it will impose the identical sentence
with the identical departures or enhancements, or both. If the
district court judge reimposes the same sentencing adjustments
upon resentencing, Jones may challenge them on appeal after
remand.