United States v. Jones ( 2021 )

Case: 20-50746 Document: 00515965544 Page: 1 Date Filed: 08/04/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2021
No. 20-50746 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Ortavius Victor Jones,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:19-CR-137-1
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Ortavius Victor Jones appeals the sentence imposed following his
conviction by a jury of possession of a firearm by a convicted felon and receipt
of a firearm by a convicted felon. He argues that the district court improperly
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-50746
applied a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6) and
that the sentence was procedurally and substantively unreasonable.
This court reviews the district court’s application of the Guidelines
de novo and its factual findings for clear error. United States v. Trujillo, 502
F.3d 353, 356 (5th Cir. 2007). When reviewing for clear error, district courts
may make reasonable inferences from the facts, and a fact finding is not
clearly erroneous if it is plausible in light of the record as a whole. United
States v. King, 773 F.3d 48, 52 (5th Cir. 2014).
Under § 2K2.1(b)(6)(B), a defendant’s base offense level is increased
four levels “[i]f the defendant . . . used or possessed any firearm . . . in
connection with another felony offense.” Application note 14(A) to § 2K2.1
instructs that subsection (b)(6)(B) should apply “if the firearm or
ammunition facilitated, or had the potential of facilitating, another felony
offense.” § 2K2.1, comment. (n.14(A)). Here, the felony offense was
aggravated assault with a deadly weapon.
The district court’s finding that Jones used the firearm during the
commission of the aggravated assault against his father is plausible in light of
the testimony provided by his father. King, 773 F.3d at 52. Therefore, the
district court’s factual finding was not clearly erroneous. See id. In light of
that finding, the district court properly applied the four-level enhancement.
See § 2K2.1, comment. (n.14(A)); Trujillo, 502 F.3d at 356.
Next, Jones argues that in choosing to impose consecutive upwardly
variant sentences, for a total of 144 months of imprisonment, the district
court disregarded 18 U.S.C. § 3553(a)(4). It is uncertain whether Jones
preserved this argument for appeal, but we need not decide this question
because Jones’s argument is unavailing even under the ordinary abuse of
discretion standard. The record reflects that, as required by § 3553(a)(4), the
district court considered the guidelines range of imprisonment when
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No. 20-50746
formulating the sentence. In crafting an individualized sentence, the district
court permissibly gave more weight to Jones’s history and characteristics
than to the other § 3553(a) factors. See § 3553(a); United States v. Douglas,
569 F.3d 523, 528 (5th Cir. 2009). The district court based this decision on
the determination that Jones committed perjury and suborned perjury at trial.
The district court was free to conclude, as it did, that consecutive upwardly
variant sentences would best achieve the sentencing goals set forth in
§ 3553(a). United States v. Conlan, 786 F.3d 380, 394 & n.46 (5th Cir. 2015).
Because Jones has not demonstrated that the district court failed to consider
the sentencing guidelines in imposing its upwardly variant sentence, he has
not shown any abuse of discretion by the district court in that regard. See
Douglas, 569 F.3d at 528; Conlan, 786 F.3d 380.
Finally, Jones argues that the sentence is substantively unreasonable
because the district court did not give appropriate weight to his difficult
relationship with his father or to the abuse he suffered when he was young.
This court reviews the substantive reasonableness of a sentence under a
deferential abuse-of-discretion standard. See Gall v. United States, 552 U.S.
38, 51 (2007). An above-guidelines sentence, like Jones’s, may be
unreasonable “if it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013) (internal
quotation marks and citation omitted). Additionally, when reviewing a non-
guidelines sentence for substantive reasonableness, this court considers “the
totality of the circumstances, including the extent of any variance from the
Guidelines range,” United States v. Brantley, 537 F.3d 347, 349 (5th Cir.
2008) (internal quotation marks and citation omitted), but “must give due
deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance,” United States v. Broussard, 669 F.3d
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537, 551 (5th Cir. 2012) (internal quotation marks and citation omitted). A
sentence is not unreasonable merely because a different sentence would also
have been appropriate. Gall, 552 U.S. at 51.
In this case, the advisory guidelines range of imprisonment was 51 to
63 months. The district court upwardly varied to 72-months of
imprisonment on each of Jones’s two count, with the sentences to run
consecutively.
Nothing in the record reflects that the district court failed to “account
for a factor that should have received significant weight,” or that it gave
“significant weight to an irrelevant or improper factor,” and the sentence
does not represent “a clear error of judgment in balancing the sentencing
factors.” United States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013). Jones’s
disagreement with the way the district court balanced the sentencing factors
is insufficient to show that the district court clearly erred in its determination.
See United States v. Powell, 732 F.3d 361, 382 (5th Cir. 2013). The district
court’s conclusion that the § 3553(a) factors justified the extent of the
deviation must be given due deference, and the fact that this court “might
reasonably have concluded that a different sentence was appropriate is
insufficient to justify reversal of the district court.” Gall, 552 U.S. at 51; see
Broussard, 669 F.3d at 551.
AFFIRMED.
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