United States v. Jones

Appellate Case: 20-6017 Document: 010110656451 Date Filed: 03/14/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 14, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-6017
(D.C. No. 5:19-CR-00041-R-1)
DAMON DIABLO JONES, (W.D. Okla.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, KELLY, and EID, Circuit Judges.
_________________________________
Damon Diablo Jones, a federal inmate, was convicted of indecent exposure and
sentenced to fifteen months’ imprisonment to run consecutively to the term he was
already serving. Jones appeals his sentence as substantively and procedurally
unreasonable. We find the district court’s sentence to be substantively reasonable under
18 U.S.C. § 3553(a). We also find that Jones fails to show plain error on his procedural-
unreasonableness claim. Thus, we affirm.
I.
At the time of the offense underlying this appeal, Jones was serving a 387-month
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appellate Case: 20-6017 Document: 010110656451 Date Filed: 03/14/2022 Page: 2
sentence at the Federal Transfer Center in Oklahoma City for armed robberies and related
firearm offenses. He had a history of sexual misconduct. Of the seventy-three occasions
where the Bureau of Prisons disciplined him, twenty-eight were for engaging in sexual
acts, four were for making sexual proposals or threats, and three were for indecent
exposure.
On the morning of November 30, 2018, a nurse practitioner was discussing
medication with another inmate when she observed Jones’s “right hand was holding the
front of his shirt up nearly to his neck, and [he] had his penis exposed masturbating with
his left hand.” R. Vol. II at 9. A correctional officer witnessed it too. The officer
escorted Jones into the hallway and asked Jones what he was doing. Jones responded:
“Man, I wasn’t jacking on that lady, I just showed her my chest, alright?” Id. The officer
told the defendant he could still see his erect penis through his pants and escorted him to
the Special Housing Unit.
Jones was indicted and pled guilty to performing an act of indecent exposure
under 18 U.S.C. § 13(a), assimilating the Oklahoma offense of indecent exposure,
Okl. Stat. tit. 21 § 1021(A). See United States v. Harris, 10 F.4th 1005, 1010 (10th
Cir. 2021) (stating § 13 provides for application of certain state criminal laws on
federal enclaves). At sentencing, Jones sought a concurrent sentence that would not
increase his remaining time in prison. The government asked the court to impose “a
meaningful sentence” that would run “consecutive to the underlying conviction.” R.
Vol. III at 33.
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Under Oklahoma law, indecent exposure carries a mandatory thirty-day
minimum and a ten-year maximum. Okl. Stat. tit. 21 § 1021(A). Because this is an
assimilative offense with no sufficiently analogous federal guideline, Jones’s
sentence must be determined based on the factors set forth in 18 U.S.C. § 3553(a). See
U.S.S.G. § 2X5.1. Those factors include:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment
for the offense; to afford adequate deterrence to criminal conduct; to
protect the public from further crimes of the defendant; and to provide
the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner;
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established for the
applicable category of offense committed by the applicable category of
defendant as set forth in the guidelines . . .
(5) any pertinent policy statement issued by the Sentencing
Commission . . .
(6) the need to avoid unwarranted sentence disparities among defendants
with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a). “[I]f a term of imprisonment is imposed on a defendant who is
already subject to an undischarged term of imprisonment, the terms may run concurrently
or consecutively.” Id. § 3584(a). Under this determination, the court “shall consider, as
to each offense for which a term of imprisonment is being imposed, the factors set forth
in section 3553(a).” Id. § 3584(b). However, the Guidelines recommend imposing a
consecutive sentence. U.S.S.G. § 5G1.3(a).
In its determination of Jones’s sentence, the district court considered the § 3553(a)
factors, the arguments from counsel, and the presentence report (“PSR”). Ultimately, the
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court sentenced Jones to fifteen months’ imprisonment, running consecutively to his
undischarged term. The court also recommended that Jones participate in a sex offender
treatment program while incarcerated. The court explained:
I’m sympathetic with your childhood and background, but I can’t overlook
what you did. You’re not here today not knowing right from wrong. You
know right from wrong, and I’m satisfied when you did what you did that
you knew what you were doing was wrong. And I have got to consider the
victim, I have got to consider punishment for you for what you did, and I
also got to consider what other people might perceive when they see a
sentence imposed for doing what you did.
So all of those factors go into it. And I -- as I said, I carefully considered
all the sentencing factors in 18 U.S. Code 3553, but there does have to be a
consequence, and to me a concurrent sentence would not -- would not be of
consequence. And if I were the victim and I saw that kind of a sentence, I
would be very offended by it.
R. Vol. III at 35–36. Jones filed a timely notice of appeal.
II.
Jones contends that sentence is substantively unreasonable. “[S]ubstantive
reasonableness addresses whether the length of the sentence is reasonable given all
the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) (internal quotation
marks omitted). The district court need not afford equal weight to each § 3553(a)
factor, and this court defers to both the district court’s factual findings and the weight
it gives those findings. United States v. Cookson, 922 F.3d 1079, 1094 (10th Cir.
2019). We review challenges to the substantive reasonableness of a sentence for an
abuse of discretion. See United States v. Smart, 518 F.3d 800, 805 (10th Cir. 2008).
And we will reverse a sentence determination only if the district court “exceeded the
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bounds of permissible choice.” United States v. McComb, 519 F.3d 1049, 1053 (10th
Cir. 2007) (internal quotation marks omitted).
Before sentencing Jones, the district court reviewed the PSR, which contained
information relevant to the § 3553(a) factors. The PSR included the nurse’s report
that she was having residual effects from the incident, “much like Post-Traumatic
Stress Disorder in that she has had difficulty suppressing the mental image of what
occurred.” R. Vol. II at 10. The PSR also noted that Jones had prior convictions
resulting in a category III criminal history. Benefitting Jones, the PSR explained that
Jones timely entered a guilty plea and accepted responsibility. It also contained
information about Jones’s personal and family history, including reports of his
growing up with a single, alcoholic mother and prolonged sexual abuse by a female
relative. Finally, the PSR identified two other cases in which offenders were
sentenced recently for similar conduct: one received twelve months and a day in
prison, and the other received twenty-four months in prison.
Jones argues that the district court “erroneously placed improper emphasis on
its consideration of the victim and the public’s perception of the sentence imposed”
to the exclusion of “other factors such as the nature and circumstances of the offense,
the history and characteristics of the defendant, the seriousness of the offense,
promoting respect for the law and providing just punishment.” Aplt. Br. at 21.
While it is true that the district court mentioned it was “consider[ing] the victim” and
“what other people might perceive when they see a sentence imposed for doing what
[Jones] did,” R. Vol. III at 36, these were appropriate factors for the district court to
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consider. The impact of an offense on the victim goes directly to the seriousness of
the offense. See United States v. Sample, 901 F.3d 1196, 1200 (10th Cir. 2018)
(considering the harm inflicted upon a victim as part of the crime’s “seriousness”).
Similarly, general deterrence—which focuses on the sentence’s impact on public
perception—is a “key purpose[] of sentencing.” United States v. Walker, 844 F.3d
1253, 1257 (10th Cir. 2017) (internal quotation marks omitted). These were not the
only factors the district court considered. In its determination, weighing the totality
of the circumstances, the court expressly considered Jones’s history, the need for the
punishment to reflect what Jones did, and the value of providing Jones consequences
for his actions. It even expressed its “sympath[y] with [Jones’s] childhood and
background.” R. Vol. III at 35. The court did not improperly focus on only two
factors.
Jones also claims that the district court excluded from consideration the need
to provide “educational or vocational training, medical care, or other correctional
treatment in the most effective manner and avoiding unwarranted sentencing
disparities.” Aplt. Br. at 21. But nothing in the record suggests that the court
disregarded this factor in its sentencing determination. In fact, the district court
specifically included participation in a sex offender treatment program, which
implies that it did consider this as a factor in its determination.
Overall, the district court imposed a sentence at the low end of the applicable
sentencing range. See 18 U.S.C. § 13(a); Okla. Stat. tit. 21, § 1021(A) (placing the
sentencing range between 30 days and 10 years). It also imposed a sentence in line
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with the only comparable cases that the parties presented to the court—one defendant
was sentenced to twelve months and a day for similar but lesser conduct, and the
other was sentenced to twenty-four months for more aggravated conduct. Both
defendants, like Jones, had no prior history of sexual offenses out of custody but had
multiple disciplinary infractions for similar sexual misconduct while in custody.
Thus, the court’s sentence was well within the “bounds of permissible choice.”
McComb, 519 F.3d at 1053 (internal quotation marks omitted). We decline to reverse
Jones’s sentence on the grounds of substantive unreasonableness.
III.
Jones also asserts that the district court inadequately explained his sentence.
District courts have a statutory duty to explain the reasons for the sentences they
impose. 18 U.S.C. § 3553(c). A sentencing court commits procedural error by
“failing to adequately explain the chosen sentence—including an explanation for any
deviation from the Guidelines range.” Gall v. United States, 552 U.S. 38, 51 (2007).
The Supreme Court has explained that “[t]he sentencing judge should set forth
enough to satisfy the appellate court that he has considered the parties’ arguments
and has a reasoned basis for exercising his own legal decisionmaking authority.”
Rita v. United States, 551 U.S. 338, 356 (2007). That means “a district court must
describe the salient facts of the individual case, including particular features of the
defendant or of his crime, and must explain for the record how these facts relate to
the § 3553(a) factors.” United States v. Mendoza, 543 F.3d 1186, 1192 (10th Cir.
2008). It cannot merely recite the § 3553(a) factors. Id.
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Since Jones did not contemporaneously object at trial to the district court’s
failure to explain the reasoning for his sentence, we review for plain error. United
States v. Clark, 981 F.3d 1154, 1161 (10th Cir. 2020). “To show plain error, a party
must establish the presence of (1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Richison v. Ernest Grp., Inc., 634 F.3d 1123, 1128 (10th Cir.
2011). Even if the district court’s explanation of Jones’s sentence was deficient,
Jones’s argument would fail at the third prong of plain-error review. To show his
substantial rights were affected, a defendant must demonstrate that “the result of the
proceeding would have been different” without the procedural error. United States v.
Hasan, 526 F.3d 653, 665 (10th Cir. 2008) (internal quotation marks omitted). Jones
fails to advance any argument on this prong, “and we will not supply such an
argument for him.” United States v. Romero, 491 F.3d 1173, 1179 (10th Cir. 2007)
(holding a defendant’s procedural unreasonableness claim could not survive plain-
error review because he failed to explain how his sentence affected his substantial
rights). We therefore decline to reverse Jones’s sentence on the ground of procedural
unreasonableness.
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IV.
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
Entered for the Court
Allison H. Eid
Circuit Judge
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