United States v. Jones ( 2023 )

Case: 22-30270 Document: 00516838234 Page: 1 Date Filed: 07/28/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
July 28, 2023
No. 22-30270 Lyle W. Cayce
____________ Clerk
United States of America,
Plaintiff—Appellee,
versus
Brian Jones,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:19-CR-35-8
______________________________
Before Haynes and Engelhardt, Circuit Judges, and Saldaña,
District Judge. *
Kurt D. Engelhardt, Circuit Judge:
Without a plea agreement, Brian Jones pleaded guilty to, inter alia,
carjacking resulting in serious bodily injury and discharging a firearm in fur-
therance of a crime of violence or a drug trafficking crime. 1 The district court
_____________________
*
United States District Judge for the Southern District of Texas, sitting by
designation.
1
Jones was charged in state court with attempted first-degree murder and armed
robbery arising from the same conduct, which local prosecutors later dismissed.
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sentenced him to 30 years in prison. Now, Jones challenges the sufficiency
of the factual basis to which he pleaded guilty and the reasonableness of his
sentence. We AFFIRM.
I. Factual and Procedural Background:
According to the factual basis, on October 30, 2017, Jones asked the
carjacking victim to help him move from an apartment in Metairie, Louisiana
to an apartment in the Hollygrove neighborhood of New Orleans. The victim
agreed and helped Jones load his belongings into the victim’s mother’s car
(the “victim’s car”). At some point that evening, the victim received a
phone call from G.B., who had purchased heroin from Jones earlier that day.
That heroin, said G.B., was “fake or bad.” Because G.B. knew that the
victim was helping Jones move, he asked the victim to stop by K.B.’s house
with Jones. K.B. had also received Jones’s “fake or bad” heroin. When the
victim and Jones arrived at K.B.’s house, “G.B. approached Jones about
Jones selling G.B. fake/bad heroin.” The factual basis does not provide any
additional information regarding this confrontation.
Afterwards, Jones and the victim got back into the victim’s car, where
Jones “began to argue with [the victim] about G.B.’s conduct.” Jones then
directed the victim to the Hollygrove neighborhood. When they reached the
intersection of Pear and Leonidas Streets, Jones told the victim to pull over.
Both exited the car. As the victim opened the hatchback to unload Jones’s
belongings, he felt a strike to the back of his head and turned to see Jones
holding a firearm.
The victim turned to run, heard several gunshots, and fell into a ditch.
Jones approached the victim, pressed the gun into his back, and fired the gun
into his spine, paralyzing him. He then put the gun to the victim’s head and
pulled the trigger, but no round fired.
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Immediately after, Jones took the car keys out of the victim’s pants
pockets and told the victim, “Y’all pick[ed] the wrong day to f--k with me.”
He entered the victim’s car and started it. Then he “purposely drove the
vehicle over [the victim’s] legs and torso.” Next, Jones drove off in the
victim’s car, abandoned it, sprayed it with bleach, and attempted to burn it.
Officers later found the victim face down near the intersection suffering from
a gunshot wound to the back and other severe injuries. Surprisingly, the
victim survived but was critically injured.
At rearraignment, Jones confirmed under oath that he understood the
elements of the offenses and that he had reviewed and signed the written
factual basis. He represented to the district court that the facts set forth in
the factual basis were accurate and true and that he was pleading guilty to
those facts. At sentencing, the district court pronounced an above-guidelines
sentence of 360 months of imprisonment, followed by five years of supervised
release. The imposed sentence exceeded the applicable Guideline range by
approximately fifteen years.
Jones timely filed a notice of appeal.
II. Standards of Review:
Regarding Jones’s challenge to the sufficiency of the factual basis, the
parties agree that because Jones did not object to the sufficiency of the factual
basis at the district court, this Court’s review is for plain error. See United
States v. Ortiz, 927 F.3d 868, 872 (5th Cir. 2019). To prevail under the plain
error standard, Jones must show (1) an error (2) that is clear or obvious and
(3) that affected his substantial rights. Puckett v. United States, 556 U.S. 129,
135 (2009). If Jones makes these showings, this Court has discretion to cor-
rect the error if it “seriously affects the fairness, integrity or public reputation
of judicial proceedings.” Id. (internal quotation marks, brackets, and citation
omitted).
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Regarding Jones’s challenge to his 30-year sentence, “[t]his [C]ourt
reviews sentencing decisions for reasonableness.” United States v. Nguyen,
854 F.3d 276, 280 (5th Cir. 2017) (citations omitted). “Using a bifurcated
review process, [this Court] first examine[s] whether the district court com-
mitted any significant procedural error.” Id. (citing Gall v. United States, 552
U.S. 38, 51 (2007)). “If the district court’s decision is procedurally sound,
[this Court] then consider[s] the substantive reasonableness of the sen-
tence.” Id. (citing Gall, 552 U.S. at 51). When considering the procedural
unreasonableness of a sentence, this Court reviews the district court’s inter-
pretation and application of the Sentencing Guidelines de novo and its find-
ings of fact for clear error. Id. (citing United States v. Cisneros–Gutierrez, 517
F.3d 751, 764 (5th Cir. 2008)). When considering the substantive reasona-
bleness of a sentence, this Court applies the abuse-of-discretion standard.
Diehl, 775 F.3d at 724 (citations omitted).
III. The factual basis is sufficient.
Jones pleaded guilty to carjacking in violation of 18 U.S.C. § 2119,
which provides: “[w]hoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported . . . in interstate or for-
eign commerce from the person or presence of another by force and violence
or by intimidation, or attempts to do so,” shall, if serious bodily injury results,
be imprisoned up to 25 years. § 2119. He also pleaded guilty to discharging
a firearm in furtherance of a crime of violence or a drug trafficking crime in
violation of 18 U.S.C. § 924(c). Despite his guilty plea and his acknowledge-
ment of the elements of the offenses at his rearraignment, Jones argues that
he did not have the requisite intent to be guilty of carjacking, therefore the
factual basis for his guilty plea to that count is insufficient. The federal car-
jacking statute, says Jones, “requires specific intent to harm or kill a person
in connection with taking the person’s car.” But Jones contends that he merely
“attacked [the victim] for personal reasons unrelated to his car and, after the
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assault, drove away from the scene.” Accordingly, Jones argues that: (1) his
actions do not constitute a federal carjacking, so his conviction must be va-
cated; and (2) because his § 924(c) conviction is “necessarily predicated on
the purported carjacking,” it must be vacated, too. We disagree.
“Before entering a judgment on a guilty plea, the court must deter-
mine that there is a factual basis for the plea.” Fed. R. Crim. P. 11(b)(3).
This “requires a district court taking a guilty plea to make certain that the
factual conduct admitted by the defendant is sufficient as a matter of law to
establish a violation of the statute.” United States v. Trejo, 610 F.3d 308, 313
(5th Cir. 2010) (emphasis in original). “A guilty plea does not waive the right
of a defendant to appeal a district court’s finding of a factual basis for the plea
on the ground that the facts set forth in the record do not constitute a federal
crime.” United States v. Reasor, 418 F.3d 466, 470 (5th Cir. 2005).
In assessing factual sufficiency under the plain error standard, this
Court is permitted to “look beyond those facts admitted by the defendant
during the plea colloquy and scan the entire record for facts supporting his
conviction.” Ortiz, 927 F.3d at 872-73 (internal quotation marks and citation
omitted). The supporting facts may include “the factual findings relied upon
in the [presentence report], as well as fairly drawn inferences from the evi-
dence presented both post-plea and at the sentencing hearing.” Trejo, 610
F.3d at 317 (internal quotation marks and citations omitted). “An error is
plain, in this context, if it is clear or obvious what the government must prove
to establish the offense, and, notwithstanding that clarity, the district court
accept[ed] a defendant’s guilty plea without an adequate factual basis.”
United States v. Alvarado-Casas, 715 F.3d 945, 951 (5th Cir. 2013) (internal
quotation marks and citation omitted).
Section 2119’s intent requirement does not mandate that a defendant
intend to kill or cause serious injury in furtherance of taking a vehicle.
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According to the Supreme Court, “Congress intended to criminalize a
broader scope of conduct than attempts to assault or kill in the course of au-
tomobile robberies.” Holloway, 526 U.S. at 7. So, said the Court, “[t]he in-
tent requirement of § 2119 is satisfied when the Government proves that at
the moment the defendant demanded or took control over the driver’s auto-
mobile the defendant possessed the intent to seriously harm or kill the driver
if necessary to steal the car (or, alternatively, if unnecessary to steal the car).”
Id. at 12. In other words, the statute applies whether the defendant “had an
unconditional intent to kill or harm in all events” “even if not necessary to
complete a carjacking,” id. at 3, 8, or a conditional “intent to kill or harm if
necessary to effect a carjacking,” id. at 3.
Ignoring the statute’s all-encompassing unconditional intent dictate,
Jones contends that he did not have the requisite intent because “[t]here is
no evidence that [his] force was ‘used to get control of the car” or that, “‘at
the precise moment the car was taken,’ Mr. Jones intended to kill or harm
the victim ‘if necessary to steal the car.’” Jones relies on this Court’s
decision in United States v. Harris, which held that there was insufficient
evidence to support the defendant’s § 2119 carjacking conviction. 2 420 F.3d
_____________________2
In addition, Jones relies on the Third Circuit’s decision in United States v.
Applewhaite, which held the defendant did not have the requisite intent to establish a § 2119
violation when he “bludgeon[ed]” the victim, got in the victim’s car, and transported the
victim’s body away from the scene. 195 F.3d 679, 685-86 (3d Cir. 1999). There, the court
concluded that the defendant’s use of force “was employed in an attempt to harm [the
victim;] [i]t was not used to take his van.” Id. at 685. In other words, “the van was taken
as an afterthought,” said the court. Id. This Court in Harris referenced the Third Circuit’s
Applewhaite decision, but, contrary to Jones’s interpretation, never adopted it. See Harris,
420 F.3d at 471-74. Nowhere has this Court held, or adopted the Applewhaite reasoning to
hold, that evidence must prove that the defendant’s intent to kill was not only
contemporaneous with the taking of the car, but also conditional on that action being
necessary to, or for the purpose of, the taking of the car. Such a holding would be
inconsistent with the Supreme Court’s mandates that the carjacking statute must be
construed “to cover both the conditional and the unconditional species of wrongful
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467, 469 (5th Cir. 2005). In that case, the defendant was hitchhiking and got
into the victim’s car. Id. The pair “rode around, talking in a friendly manner,
drinking beer into the early morning hours” until, at some point, “they
parked in a secluded area” and the victim began asking the defendant
“suggestive questions.” Id. After the victim forced the defendant to perform
sex acts, the defendant grabbed the gun from the victim, shot and killed him
outside of the car, and covered the body with mesquite brush on the side of
the road. Id. at 468, 470. The defendant then found the victim’s car keys
and drove away in the victim’s car. Id. at 470.
“[L]ook[ing] to the evidence in the light most favorable to the
verdict,” this Court “ask[ed] whether it and reasonable inferences from it
demonstrate that, at the precise moment Harris took [the victim’s] Mustang,
Harris intended to cause death or serious bodily harm.” Id. at 473 (citation
omitted). Besides the defendant’s own testimony, this Court observed that
there was no evidence concerning: (1) “the precise circumstances
surrounding the moment in which the defendant demanded or took control
of the car”; (2) whether “the defendant threatened the victim at the moment
he demanded or took control of the car”; and (3) “when and how the
defendant came to be in the victim’s car.” Id. at 475. Concluding that “[t]he
jury had no evidence upon which to determine whether [the defendant]
possessed intent to kill or harm at the moment of the taking,” this Court
reversed the defendant’s conviction. Id. at 474, 478.
_____________________
intent.” Holloway, 526 U.S. at 9. Other circuits agree. See, e.g., United States v. Felder, 993
F.3d 57, 66 (2d Cir. 2021); United States v. Washington, 702 F.3d 886, 892 (6th Cir. 2012);
United States v. Castro-Davis, 612 F.3d 53, 62 (1st Cir. 2010); United States v. Perry, 381 F.
App’x 252, 254 (4th Cir. 2010). In any event, even if Applewhaite were applicable, it is
distinguishable in that Jones’s taking the car was not a mere “afterthought,” but as a basis
for his continued attacks.
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Harris is distinguishable, and therefore not controlling. First, as a pro-
cedural matter, Harris concerned whether evidence presented to the jury was
sufficient to sustain the carjacking conviction, Harris, 420 F.3d at 468. The
instant case concerns a guilty plea. Second, as a factual matter, the Harris
defendant shot and killed the victim and then drove away; Jones, on the other
hand: (1) shot the victim in his spine; (2) pulled the trigger to shoot the victim
in his head (but no bullet fired); (3) told the victim, “Y’all pick[ed] the wrong
day to f--k with me”; (4) took his keys, entered the car, started it; and then
(5) “purposely drove the vehicle over [the then-paralyzed victim’s] legs and
torso.” Only after that did Jones, like the defendant in Harris, drive away.
Third, as an evidentiary matter, unlike in Harris, the factual basis es-
tablishes “the precise circumstances surrounding the moment in which the
defendant demanded or took control of the car,” Harris, 420 F.3d at 475;
namely, that immediately before Jones entered the car, he shot at the victim
multiple times as he ran away, shot him in the spine as he laid in a ditch, at-
tempted to shoot the victim in the head (but no bullet fired), and threatened
him. Then, immediately after Jones entered the car, he “purposely drove the
vehicle” over the victim’s paralyzed body. Moreover, unlike in Harris, there
is sufficient evidence that “the defendant threatened the victim at the mo-
ment he demanded or took control of the car,” namely, that, after Jones
pointed the gun to the victim’s head and pulled the trigger, he said, “Y’all
pick[ed] the wrong day to f--k with me.” See id. at 475. Further, unlike in
Harris, there is sufficient evidence regarding “when and how the defendant
came to be in the victim’s car,” namely, that the victim was helping Jones
move, the victim brought Jones to a place where one of his heroin buyers con-
fronted him about “fake or bad” heroin, and sometime after the victim and
Jones got back into the car, the victim pulled over, helped unpack Jones’s
belongings, and then was violently attacked. See id. at 475. The differences
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between Harris and the instant case on a procedural, factual, and evidentiary
level vitiate Jones’s argument that Harris controls.
Most importantly, the factual basis sufficiently establishes that, at the
moment Jones took control of the car, Jones had intent to seriously harm or
kill the victim. In his appellate briefing, Jones even admits that “the facts in
this case clearly show that Mr. Jones intended to seriously harm or kill the
victim.” And, as Supreme Court precedent makes clear, “at the moment the
defendant … t[akes] control over the driver’s automobile[,] the defendant
[need only] possess[] the intent to seriously harm or kill the driver … [even]
if unnecessary to steal the car[.]” Holloway, 526 U.S. at 12. The strike to the
head, multiple gunshots fired as the victim ran away from the defendant, shot
to the spine as the victim lay in a ditch, attempted shot to the head, and threat
detailed in the factual basis sufficiently establish the intent requirement:
Jones “had an unconditional intent to kill or harm in all events” “even if not
necessary to complete a carjacking.” See id. at 3, 8. That intent is further
underscored by the fact that Jones “purposely” ran over the victim’s para-
lyzed body after he took control of the car. Accordingly, the factual basis is
sufficient to establish a violation of the federal carjacking statute. There is no
error, let alone one that is clear or obvious.
Jones also argues that “[b]ecause the record fails to establish a viola-
tion of the federal carjacking statute, there no longer is a valid ‘crime of vio-
lence’ predicate for his § 924(c) conviction.” The factual basis, however, is
sufficient to support his violation of the carjacking statute. “Every defendant
who violates § 2119 necessarily violates § 924(c).” Singleton, 16 F.3d at 1423.
So, Jones’s challenge to the sufficiency of the factual basis with respect to the
§ 924(c) violation fails. See Frye, 489 F.3d at 208-09.
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IV. The sentence is reasonable.
Jones argues that his 30-year sentence, which varied upward from the
applicable Guidelines range by approximately 15 years, “must be vacated be-
cause the district court’s sentencing determination was wholly detached
from the U.S. Sentencing Guidelines, making it both procedurally and sub-
stantively unreasonable.” Under our bifurcated-review process, Jones’s sen-
tence is reasonable.
A.
First, procedural reasonableness. Jones argues that his sentence is
procedurally unreasonable for two reasons. First, the district court failed to
“consider all of the § 3553(a) factors.” Second, it failed to “adequately
explain its significant upward variance.” His arguments lack merit.
If the district court committed a significant procedural error, this
Court must remand unless the error was harmless. Nguyen, 854 F.3d at 280
(citing United States v. Delgado–Martinez, 564 F.3d 750, 752-53 (5th Cir.
2009)). Significant procedural errors include:
(1) failing to calculate (or improperly calculating) the applica-
ble Guidelines range; (2) treating the Guidelines as mandatory;
(3) failing to consider the 18 U.S.C. § 3553(a) factors; 3 (4) de-
termining a sentence based on clearly erroneous facts; or (5)
failing to adequately explain the chosen sentence, including an
explanation for any deviation from the Guidelines range.
_____________________
3
These include (1) the nature and circumstances of the offense and the history and
characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of
the offense, deter criminal conduct, protect the public, and provide the defendant with
correctional treatment; (3) the kinds of sentences available; (4) the kinds of sentences and
sentencing range established for the applicable category of offense; (5) pertinent policy
statements; (6) the need to avoid unwarranted sentencing disparities; and (7) the need to
provide restitution to victims. 18 U.S.C. § 3553(a).
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United States v. Diehl, 775 F.3d 714, 722-23 (5th Cir. 2015) (citing United
States v. Scott, 654 F.3d 552, 555 (5th Cir. 2011)); see also Gall, 552 U.S. at 51.
When, as here, a district court “elects to give a non-Guideline sentence, [it]
should carefully articulate the reasons [it] concludes that the sentence [it] has
selected is appropriate for that defendant” in order “to permit this [C]ourt
to review the sentence for reasonableness.” Mares, 402 F.3d at 519. “The
sentencing judge should set forth enough to satisfy the appellate court that
he has considered the parties’ arguments and has a reasoned basis for exer-
cising his own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007).
Contrary to Jones’s position, the sentencing court “need not engage
in ‘robotic incantations that each statutory factor has been considered.’”
United States v. Smith, 440 F.3d 704, 707 (5th Cir. 2006) (quoting United
States v. Lamoreaux, 422 F.3d 750, 756 (8th Cir. 2005)) (citations omitted).
The court thoroughly and adequately articulated several § 3553(a) factors,
stating that the imposed sentence was necessary “in view of the history and
characteristics of the defendant and the extreme violent nature of this of-
fense,” see § 3553(a)(1), and that the sentence “reflect[ed] the seriousness of
the offense,” “promote[d] respect for the law,” “provide[d] just punish-
ment for the offense,” “afford[ed] adequate deterrence to criminal con-
duct,” and “protect[ed] the public from further crimes of the defendant.”
See § 3553(a)(2)(A)-(C). Jones’s disagreement with the district court’s
weighing of the § 3553(a) factors is not a sufficient ground for reversal.
United States v. Malone, 828 F.3d 331, 342 (5th Cir. 2016) (citations omitted);
see also United States v. Aldawsari, 740 F.3d 1015, 1021-22 (5th Cir. 2014)
(“Appellant cites no cases that would require this court ‘to reweigh the sec-
tion 3553(a) sentencing factors’ in Appellant’s favor.”) (citation omitted).
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Moreover, the sentencing court sufficiently explained its reasons for
imposing an above-the-Guidelines sentence. A review of the sentencing-pro-
ceeding transcript reveals the district court’s thorough consideration of sev-
eral of the § 3553(a) factors, the victim’s own statement of impact in court,
and “the extreme violent nature of this offense.” Said the court: “As I read
the factual basis, it was as violent as anything I have seen and shocking. The
Court believes that the extreme violent nature of this offense is not properly
accounted for in the guidelines. There is no doubt that Mr. Jones intended
to kill his victim.” The court also expressly addressed the parties’ arguments
and Jones’s motion for a downward variance or departure and “read clearly
what [defense counsel] presented to the Court in an attempt to provide con-
text to [the offenses].” Yet, explained the court, “[i]t was the violence,” the
§ 3553(a) factors, and the history and characteristics of the defendant that
warranted an upward variance.
Further, in its statement of reasons, the court explained that the up-
ward variance was based on: (1) “extreme conduct”; (2) “victim impact”;
(3) “extreme violence”; (4) “attempted murder not addressed in [G]uide-
line cross reference”; and that the sentence (5) reflected the seriousness of
the offense, promoted respect for the law, and provided just punishment for
the offense; (6) afforded adequate deterrence to criminal conduct; and (7)
protected the public from further crimes of the defendant. The court’s iden-
tification of over a half dozen reasons for the upward variance at the sentenc-
ing hearing and in its statement of reasons is more than adequate. See United
States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th Cir. 2009) (“The dis-
trict court must adequately explain the sentence ‘to allow for meaningful ap-
pellate review and to promote the perception of fair sentencing.’”) (citation
omitted). Accordingly, because the district court articulated the fact-specific
reasons in support of a non-Guidelines sentence, committed no legal error in
the procedure followed in arriving at the sentence, and gave appropriate
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reasons for its imposition, the sentencing court is owed “great deference.”
Mares, 402 F.3d at 519-20. Jones has not shown that his sentence is proce-
durally unreasonable.
B.
Second, substantive reasonableness. Jones argues that his 30-year
sentence is substantively unreasonable for two reasons. 4 First, the district
court did not “give significant weight to his applicable Guidelines range,”
“to the fact that Mr. Jones received a specific Guidelines enhancement to
account for the severe, permanent injury to [the victim],” or to “significant
mitigating circumstances.” Second, the district court erred when it assessed
the attempted murder Guideline range in connection with his charged
crimes. Neither argument has merit.
“To determine whether a sentence is substantively reasonable, a dis-
trict court should consider ‘the totality of the circumstances, including the
extent of any variance from the Guidelines range.’” United States v. Hudgens,
4 F.4th 352, 358 (5th Cir. 2021) (quoting Gall, 552 U.S. at 51). “A non-
Guideline sentence unreasonably fails to reflect the statutory sentencing fac-
tors [set forth in § 3553(a)] where it (1) does not account for a factor that
should have received significant weight, (2) gives significant weight to an ir-
relevant or improper factor, or (3) represents a clear error of judgment in bal-
ancing the sentencing factors.” Smith, 440 F.3d at 708. That this Court
“might reasonably have concluded that a different sentence was appropriate
is insufficient to justify reversal.” Gall, 552 U.S. at 51. Ultimately, this
Court’s “review for substantive reasonableness is ‘highly deferential,’
_____________________
4
Jones adds that the sentence is substantively unreasonable “[f]or similar reasons
to those discussed [in the procedurally unreasonable section].” For the reasons set forth
in the previous section, his argument fails.
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because the sentencing court is in a better position to find facts and judge
their import under the § 3553(a) factors with respect to a particular defend-
ant.” Diehl, 775 F.3d at 724 (quoting United States v. Hernandez, 633 F.3d
370, 375 (5th Cir. 2011)). “Even a significant variance from the Guidelines
does not constitute an abuse of discretion if it is ‘commensurate with the in-
dividualized, case-specific reasons provided by the district court.’” Id.(quoting United States v. McElwee, 646 F.3d 328, 338 (5th Cir. 2011)).
At sentencing, the district court stated that it conducted “an inde-
pendent assessment and review[ed] the facts and ma[d]e a determination
based on what [it] ha[d] seen the facts to be.” “This individualized assess-
ment ‘necessarily means that the sentencing court is free to conclude that the
applicable [G]uidelines range gives too much or too little weight to one or
more factors, either as applied in a particular case or as a matter of policy.’”
United States v. Campos-Maldonado, 531 F.3d 337, 339 (5th Cir. 2008) (quot-
ing United States v. Williams, 517 F.3d 801, 809 (5th Cir. 2008)). The court
plainly explained that it had assessed the applicable Guidelines range, but
that “the extreme violent nature of this offense [wa]s not properly accounted
for in the[G]uidelines” and, thus, warranted an upward variance.
The court concluded that such a variance was necessary even consid-
ering the special sentencing enhancement that accounted for the severe, per-
manent injury to the victim. The presentence report recommended a total
offense level of 25, which included the special sentencing enhancement. Nei-
ther party objected to it. The court adopted the report’s conclusions, includ-
ing its application of the special sentencing enhancement, as its own. Still,
after “consult[ing] the [G]uidelines,” which necessarily incorporated the
special sentencing enhancement, the court found it necessary to impose an
upward variance “in view of the history and characteristics of the defendant
and the extreme violent nature of this offense.” In addition, the court neces-
sarily considered proffered significant mitigating circumstances in coming to
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its decision, yet even those could not counterbalance the need for an upward
variance. It “read clearly” defense counsel’s “attempt to provide context to
[the offenses],” like the memorandum in support of motion for a variance or
downward departure, it adopted the presentence report, which included var-
ious facts about Jones’s personal and family data, mental and emotional
health, among other things, and it holistically considered the “history and
characteristics of the defendant” to impose a just sentence. These facts were
implicitly incorporated into the court’s weighing of the § 3553(a) factors. See
§ 3553(a)(1).
Moreover, the court was well within its discretion to consider the at-
tempted-murder Guidelines when sentencing Jones. In its statement of rea-
sons, the district court provided that one reason for a variance was “extreme
violence/attempted murder not addressed in [G]uideline cross reference.”
A sentencing court may vary from the Guidelines based solely on its disagree-
ments therewith “if the court feels that the guidelines sentence fails properly
to reflect § 3553(a) considerations.” Campos-Maldonado, 531 F.3d at 339 (ci-
tations omitted). The district court was free to disagree with the applicable
Guideline range and imposed a sentence that, in its view, properly reflected
the § 3553(a) considerations. Considering the extremely violent nature of the
offense, and the massive harm caused by it, the court did not abuse its discre-
tion in considering the attempted-murder Guidelines.
Against this backdrop, Jones has not shown that the court’s analysis
failed to take into account a factor that should have received significant
weight, gave weight to an irrelevant or improper factor, or represented a clear
error of judgment in balancing the sentencing factors and other relevant
considerations. See McElwee, 646 F.3d at 344-45; see also Gall, 552 U.S. at 51-
52 (2007) (“The sentencing judge has access to, and greater familiarity with,
the individual case and the individual defendant before him than the
Commission or the appeals court.”) (citation omitted). Applying a highly
15
Case: 22-30270 Document: 00516838234 Page: 16 Date Filed: 07/28/2023
No. 22-30270
deferential standard of review to the district court’s consideration of the
totality of the circumstances, as required, the court’s upward-variance
sentence was substantively reasonable. 5
V.
The factual basis supports Jones’s guilty plea and the district court’s
imposition of an upward variance was neither procedurally nor substantively
unreasonable. Accordingly, we AFFIRM Jones’s conviction and sentence
in all respects.
_____________________
5
This Court has affirmed much greater variances. See, e.g., United States v. Key,
599 F.3d 469, 475-76 (5th Cir. 2010) (upholding sentence of 216 months where Guidelines
maximum was 57 months); United States v. Smith, 417 F.3d 483, 492 (5th Cir. 2005)
(upholding sentence of 120 months where Guidelines maximum was 41 months); United
States v. Saldana, 427 F.3d 298, 312-13 (5th Cir. 2005) (upholding sentence four times the
Guidelines maximum despite “misgivings about the length of th[e] sentence”). The
district court’s reliance on significant factors not accounted for by Jones’s Guideline range,
see Smith, 440 F.3d at 709, was not an abuse of discretion.
16