United States v. Jones, Shawn W. ( 2002 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 01-1117
United States of America,
Plaintiff-Appellee,
v.
Shawn W. Jones,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of Illinois.
No. 00-CR-30016--Richard Mills, Judge.
Argued May 17, 2001--Decided January 28, 2002
Before Harlington Wood, Jr., Kanne, and
Rovner, Circuit Judges.
Kanne, Circuit Judge. Defendant Shawn W.
Jones pleaded guilty to three counts of
criminal contempt in violation of 18
U.S.C. sec. 401 on August 29, 2000. On
January 4, 2001, the district court
entered an order sentencing Jones to 76
months imprisonment, three years of
supervised release, and a $300 special
assessment. In imposing the imprisonment
term, the district court applied an
upward departure from the Sentencing
Guidelines because of Jones’ failure to
comply with a cooperation agreement that
he entered into with the government on
June 8, 1995. On appeal, Jones argues
that: 1) the district court’s grounds for
applying the upward departure were
improper and 2) the extent of the upward
departure in this case was unreasonable.
We affirm.
I. History
On March 3, 1995, Jones was convicted of
conspiracy to distribute cocaine and
marijuana in violation of 21 U.S.C. sec.
846 and of possession of cocaine and
marijuana with the intent to distribute
in violation of 21 U.S.C. sec. 841(a)(1)
("drug convictions"). Prior to sentencing
for the drug convictions, Jones entered
into a cooperation agreement
("Agreement") with the government on June
8, 1995. The Agreement stated, in
relevant part, that Jones would "provide
complete and truthful testimony to any
grand jury, trial jury, judge, or
magistrate in any proceeding in which he
may be called to testify by the
government." In exchange, the Agreement
provided, among other things, that the
government would recommend that the
district court apply a downward departure
to Jones’ sentence for the drug
convictions based on the "government’s
evaluation of the nature, extent, value
and timeliness of [Jones’] assistance."
Further, it provided that "[a]ny material
breach of any provision" of the Agreement
by Jones "would void [the Agreement] in
its entirety."
Pursuant to the Agreement, on December
27, 1995, Jones testified in front of a
grand jury investigating Robert Scott
about his and Scott’s involvement in the
activities that gave rise to the drug
convictions. As a result, on April 1,
1996, the government moved for a downward
departure to Jones’ drug sentence
pursuant to United States Sentencing
Guideline sec. 5K1.1./1 In that motion,
the government noted that the sentencing
range applicable to Jones’ drug
convictions was 188 to 235 months
imprisonment and asked the district court
to reduce Jones’ sentence to 162 months
imprisonment. The district court entered
an order granting the government’s
downward departure motion, stating that
"it accepted the Government’s sec. 5K1.1
motion proposing a downward departure to
162 months," but that it "concluded that
a sentence of 144 months was
appropriate."
In late 1998, the government requested
that Jones provide further grand jury
testimony about the activities underlying
the drug convictions. To that end, on
January 7, 1999, the government filed a
motion to obtain a grant of immunity for
Jones pursuant to 18 U.S.C. sec.sec.
6002-6003 and for an order compelling
Jones to testify before the grand jury.
The district court granted the
government’s motion in full and ordered
Jones to testify before the grand jury.
However, on January 7, 1999, when brought
before the grand jury, Jones refused to
take oath or to provide testimony.
Thereafter, Jones again refused to
testify before the grand jury, despite
being ordered by the district court to do
so. The government then filed a motion to
hold Jones in civil contempt, but the
district court deferred ruling on the
motion in order to provide Jones with
another opportunity to testify before the
grand jury. On February 3, 1999, Jones
appeared before the grand jury and for a
third time, refused to take oath or
testify. That same day, the district
court held Jones in civil contempt. In
June, 1999, thegovernment obtained an
indictment against Scott.
On December 1, 1999, the government
filed a motion to request a grant of
immunity for Jones and for an order
compelling him to testify at Scott’s
trial. After the district court granted
this motion, Jones refused to testify at
Scott’s trial and was held in civil
contempt for a second time. Scott’s trial
ended in a mistrial after the jury was
unable to reach a verdict. On April 3,
2000, the government filed a motion to
obtain a grant of immunity for Jones and
for an order compelling him to testify at
Scott’s second trial. After the district
court granted this motion, Jones refused
to testify at Scott’s second trial and
was held in civil contempt for a third
time. Eventually, Jones’ 1995 grand jury
testimony was read into the record at
Scott’s second trial, and Scott was
convicted.
On May 5, 2000, Jones was charged in a
superseding indictment with three counts
of criminal contempt pursuant to 18
U.S.C. sec. 401. Count 1 of the
indictment charged Jones with criminal
contempt due to his three refusals to
provide grand jury testimony. Count 2
charged Jones with criminal contempt due
to his refusal to testify at Scott’s
first trial, and Count 3 for his refusal
to testify at Scott’s second trial. On
August 29, 2000, Jones pleaded guilty to
all three counts of criminal contempt.
Thereafter, the probation office
determined that Jones should be sentenced
under Guideline sec. 2X3.1 (Accessory
After the Fact) rather than under the
more lenient Guideline sec. 2J1.5
(Failure to Appear by Material Witness),
and recommended a sentencing range of 57
to 71 months imprisonment.
At Jones’ sentencing hearing on January
2, 2001, the district court admonished
Jones for refusing to comply with the
Agreement, but found that because there
was no evidence that Jones intended to
obstruct justice, Guideline sec. 2X3.1
did not apply./2 Applying Guideline sec.
2J1.5, the district court determined that
Jones’ offense level was 7, resulting in
a sentencing range of 4 to 10 months
imprisonment.
The government then moved for an upward
departure pursuant to Guideline sec.
5K2.0./3 Under that Guideline, an upward
departure would be appropriate if Jones’
refusal to testify distinguished his
"case from the ’heartland’ cases covered
by" Guideline sec. 2J1.5. U.S.S.G. sec.
5K2.0. The government requested that the
district court apply a 17-level upward
departure and sentence Jones to 71 months
imprisonment. The district court granted
the government’s departure motion and
stated that its decision to apply an
upward departure to Jones’ sentence was
based on Jones’ repeated refusals to
testify and on this court’s decision in
United States v. Simmons, 215 F.3d 737,
743 (7th Cir. 2000) (upholding upward
departure based on Guideline sec. 5K2.0
for defendant’s failure to comply with
plea agreement requiring him to testify
in future proceedings).
On January 4, 2001, the district court
entered an order stating that as in
Simmons, 215 F.3d at 743, Jones’ actions
warranted an upward departure in the
amount necessary to take away the benefit
conferred upon Jones in 1996. The
district court calculated that the
benefit of the1996 downward departure was
66 months,/4 and it added this amount to
the 10 month sentence that was the upper
end of the applicable range. Thus, the
district court sentenced Jones to 76
months imprisonment on each of the three
criminal contempt counts, to be served
concurrently.
II. Analysis
A. Standard of Review
On appeal, Jones alleges that: 1) the
district court’s grounds for applying the
upward departure were improper and 2) the
extent of the upward departure in this
case was unreasonable. We review a
district court’s decision to depart from
the Sentencing Guidelines for abuse of
discretion and accept the findings of
fact underlying the departure unless they
are clearly erroneous. See id. at 741.
Jones does not contend that the district
court’s findings of fact were in error.
Further, we review the district court’s
determination of the extent of the
departure for abuse of discretion, and
"will uphold the extent of the departure
taken as long as it is reasonable and
adequately reflects the structure of the
Guidelines." Id. (quotation omitted).
B. Appropriateness of Grounds for
Departure
The Sentencing Guidelines direct
district courts to apply Guideline sec.
2X5.1 when sentencing defendants for
criminal contempt. See U.S.S.G. sec.
2J1.1. In turn, Guideline sec. 2X5.1
directs courts to apply the "most
analogous guideline," U.S.S.G. sec.
2X5.1, because "misconduct constituting
contempt varies significantly." U.S.S.G.
sec. 2J1.1. In this case, the district
court chose to sentence Jones under
Guideline sec. 2J1.5 (Failure to Appear
by Material Witness) because Jones’
criminal contempt consisted of failing to
testify before Scott’s grand jury and at
Scott’s trials, as he was required to do
under the Agreement. We conclude that the
district court correctly chose the most
analogous Guideline. See Simmons, 215
F.3d at 742 (stating that Guideline sec.
2J1.5 defines the "most closely analogous
[behavior] to [a] refusal to comply with
an order to testify"). The district court
then noted that the applicable sentencing
range under Guideline sec. 2J1.5 was 4 to
10 months imprisonment.
After choosing the applicable sentencing
range, the district court could apply an
upward departure if it found that Jones’
behavior was outside of the "heartland"
of conduct embodied by Guideline sec.
2J1.5. See Simmons, 215 F.3d at 742. In
other words, if Jones’ behavior was more
egregious than the behavior normally
punished under Guideline sec. 2J1.5, then
the district court was permitted to apply
an upward departure. See id. Here, the
district court applied an upward
departure because Jones’ refusals to tes
tify amounted to a breach of the
Agreement. Further, the benefit of the
Agreement had already been conferred to
Jones in the form of a downward departure
applied to his drug sentence.
We addressed the application of an
upward departure based on this exact type
of behavior in Simmons, 215 F.3d at 742-
43. In that case, the defendant pleaded
guilty to bank robbery pursuant to a plea
agreement with the government, which
required the defendant to testify at the
trial of Dwayne Reed. See id. at 739.
After the defendant testified at Reed’s
first trial, which ended in a mistrial,
the government moved for the application
of a downward departure for the
defendant’s bank robbery sentence, and
the district court granted the motion.
See id. At Reed’s second trial, however,
the defendant refused to testify, and the
district court found him guilty of
criminal contempt. See id. at 739-40. In
sentencing the defendant for criminal
contempt, the district court applied an
upward departure, justifying its decision
by stating that the defendant had
received a benefit from the plea
agreement in the form of a reduced bank
robbery sentence. See id. at 740.
Further, because the defendant had
breached that plea agreement by refusing
to testify at Reed’s second trial, the
upward departure would take away the
benefit conferred upon the defendant with
respect to his bank robbery sentence. See
id. at 742-43. On appeal, this court
upheld the application of the upward
departure on these grounds because the
defendant’s "outright refusal to testify,
coupled with his change of heart as to
his decision to testify, served to
distinguish [defendant’s] behavior from
other behavior within the heartland of
sec. 2J1.5." Id. at 742.
The facts in the present case are
strikingly similar, if not more
egregious. After his drug convictions,
Jones entered into an Agreement with the
government, under which he was obliged to
"provide complete and truthful testimony
to any grand jury, trial jury, judge, or
magistrate in any proceeding in which he
may be called to testify by the
government." (italicized emphasis added).
Jones testified in front of a grand jury
that was investigating Scott, and accord
ingly, the district court applied a
downward departure to Jones’ drug
sentence. Thereafter, Jones refused to
provide grand jury testimony three times
and refused to testify at both of Scott’s
trials. Because of these five refusals to
testify, Jones was convicted of criminal
contempt. The district court then applied
an upward departure to Jones’ criminal
contempt sentence, justifying its
decision by stating that it found Jones’
"refusal to testify [to be] outside of
the heartland of conduct contemplated by
the Sentencing Commission. As in Simmons,
[Jones] initially agreed to cooperate,
testified, received a benefit for his
cooperation, and then, refused to
testify." Further, the district court
stated that it wanted "to strip [Jones]
of the benefit of his sec. 5K1.1
reduction in his [drug] sentence."
Therefore, as in Simmons, 215 F.3d at
743, we hold that the district court did
not abuse its discretion by applying an
upward departure based on Jones’ refusals
to testify.
Jones’ arguments to the contrary are
unavailing. First, Jones’ reliance on
Guideline sec. 5K1.2, which states that a
"defendant’s refusal to assist
authorities in the investigation of other
persons may not be considered as an
aggravating sentencing factor," is
misguided. U.S.S.G. sec. 5K1.2. Jones has
cited no authority that suggests that
Guideline sec. 5K1.2 applies to a
situation where the defendant received a
benefit for agreeing to assist the
government and thereafter refused to
comply with that agreement. In fact,
there is precedent holding that this
exact kind of behavior does warrant an
upward departure. See Simmons, 215 F.3d
at 742-43.
Next, Jones contends that because
"generalized dissatisfaction with the
Guidelines . . . is not a reasonable
basis" for applying an upward departure,
his sentence should be reversed. United
States v. Scott, 914 F.2d 959, 964 (7th
Cir. 1990) (citations omitted). This
principle is not applicable to the case
at hand because the district court
specifically stated that it was applying
the upward departure because "[Jones]
initially agreed to cooperate, testified,
received a benefit for his cooperation,
and then, refused to testify." We reject
the contention that the district court
applied the upward departure because of
any dissatisfaction with the applicable
Guideline.
Finally, Jones contends for the first
time in his reply brief that he did not
breach the terms of the Agreement. Jones
bases this claim on the fact that on
January 7, 1999, when the government
sought Jones’ grand jury testimony, it
stated that it was not "calling [Jones]
before the Grand Jury in any way
connected with [the Agreement]." Jones
did not mention this argument in his
opening brief and did not adequately
develop it in his reply brief because he
discussed no legal authority addressing
how the government’s statement affected
the continuing validity of the Agreement.
See 330 West Hubbard Rest. Corp. v.
United States, 203 F.3d 990, 997 (7th
Cir. 2000) (stating that argument
inadequately developed when not bolstered
by legal authority). Therefore, without
passing judgment on the merits of this
contention, we hold that Jones has
forfeited this argument on appeal. See,
e.g., United States v. Guy, 174 F.3d 859,
862 n.1 (7th Cir. 1999).
C. Reasonableness of Sentence
Jones also argues that even if it was
reasonable for the district court to
apply an upward departure, the extent of
the departure in this case was
unreasonable. Sentencing courts need not
adhere to a mathematical approach in
determining the extent of the departure,
but rather need only "link the degree of
departure to the structure of the
Guidelines and justify the extent of the
departure taken." Simmons, 215 F.3d at
743 (quotation omitted). In Simmons, the
district court applied an 8-level upward
departure to the defendant’s criminal
contempt sentence, which took the
defendant up to an offense level of 23
and resulted in a sentence of 57 months
imprisonment. See id. We held that the
extent of this departure was reasonable
because it accounted for the 55 month
benefit that the defendant had received
as a result of the downward departure
applied to his bank robbery sentence. See
id. at 743.
In the present case, the district court
applied a 17-level upward departure to
Jones’ criminal contempt sentence,
resulting in an offense level of 24 and a
sentence of 76 months imprisonment.
Jones’ applicable range for the drug
convictions was 188 to 235 months
imprisonment, and the district court
stated that it would have sentenced Jones
to 210 months imprisonment had no
downward departure been applied to Jones’
drug sentence because it was its normal
practice to sentence defendants to the
middle of the applicable range. The
district court then added the 66 months
(210 months minus 144 months) to the 10
month sentence from the applicable range
under Guideline sec. 2J1.5. As Jones
concedes in his opening brief, "the 66
months [were] required to take back Mr.
Jones’ 5K1.1 departure." Therefore, the
extent of the upward departure in this
case was reasonable "because it took away
the benefit conferred upon" Jones by the
downward departure applied to his drug
sentence. Simmons, 215 F.3d at 743(quotation omitted).
On appeal, Jones proffers several
arguments urging us to overturn Simmons,
which we decline to do. Jones also argues
that even under Simmons, the 17-level
departure in this case was unreasonable
because it increased Jones’ offense level
by over twice as many levels as the 8-
level departure in Simmons, 215 F.3d at
743, did. This argument is also
unavailing. We found Simmons’s upward
departure, which resulted in his offense
level being 23, to be reasonable. See id.In this case, Jones’ upward departure
resulted in his offense level being 24.
Further, Jones’ conduct was more
egregious than Simmons’s because Jones
refused to testify five times, whereas
Simmons only refused to testify once.
III. Conclusion
For the foregoing reasons, we AFFIRM
Jones’ sentence.
FOOTNOTES
/1 Guideline sec. 5K1.1 provides that, "[u]pon
motion of the government stating that the defen-
dant has provided substantial assistance in the
investigation or prosecution of another person
who has committed an offense, the court may
depart from the guidelines."
/2 Judge Mills presided over Jones’ trial for the
drug convictions, entered Jones’ drug sentence,
presided over Scott’s trials, and presided over
Jones’ criminal contempt case and sentencing.
/3 Guideline sec. 5K2.0 provides that "the sentenc-
ing court may impose a sentence outside the range
established by the applicable guidelines, if the
court finds ’that there exists an aggravating or
mitigating circumstance of a kind, or to a de-
gree, not adequately taken into consideration by
the Sentencing Commission in formulating the
guidelines that should result in a sentence
different from that described.’"
/4 The district court calculated the 66 month bene-
fit by subtracting the 144 month sentence actual-
ly imposed on Jones from 210 months--the middle
of the applicable range of 188 to 235 months
imprisonment.