United States v. David Emanul Jones

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 08-12436 ELEVENTH CIRCUIT
December 2, 2008
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 07-00009-CR-T-27-TGW
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID EMANUL JONES,
a.k.a. David Emanuel Jones,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 2, 2008)
Before BLACK, BARKETT and WILSON, Circuit Judges.
PER CURIAM:
David Emanul Jones appeals his 780-month sentence imposed for (1)
conspiracy to obstruct commerce by robbery, 18 U.S.C. § 1951; (2) Hobbs Act
robbery, 18 U.S.C. § 1951; (3) using or carrying a firearm during and in relation to
a crime of violence resulting in death, 18 U.S.C. §§ 924(c)(1)(A), 924(j); (4)
conspiracy to distribute cocaine, 21 U.S.C. §§ 846, 841(b)(1)(b); (5) possession
with intent to distribute cocaine and marijuana, 21 U.S.C. §§ 846, 841(b)(1)(C),
841 (b)(1)(D); (6) using or carrying a firearm during and in relation to a drug
trafficking offense resulting in death, 18 U.S.C. §§ 924(c)(1)(A), 924(j); and (7)
possession of a firearm by a convicted felon, 18 U.S.C. § 922(g).
On appeal, Jones argues that the district court erred by not awarding a two-
level reduction for his minor participation in the offense. He claims that he was
only assisting in the robbery, had no supervisory authority, did not have a gun or
participate in the murder, and was not the mastermind or organizer of the
conspiracy. Finding no clear error, we affirm.
We review a district court’s determination of a defendant’s role in the
offense for clear error. United States v. Rodriguez De Varon, 175 F.3d 930, 937
(11th Cir. 1999) (en banc). We have explained that
a trial court’s choice between “two permissible views of the evidence”
is the very essence of the clear error standard of review. So long as
the basis of the trial court’s decision is supported by the record and
does not involve a misapplication of a rule of law, we believe that it
will be rare for an appellate court to conclude that the sentencing
court’s determination is clearly erroneous.
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Id. at 945 (internal citation and footnote omitted). “The proponent of the
downward adjustment . . . always bears the burden of proving a mitigating role in
the offense by a preponderance of the evidence.” Id. at 939. A district court may
decrease a defendant’s offense level by two levels if it finds that the defendant was
a “minor participant.” U.S. S ENTENCING G UIDELINES M ANUAL § 3B1.2(b) (2007).
A “minor participant” is a defendant “who is less culpable than most other
participants, but whose role could not be described as minimal.” § 3B1.2 cmt. n.5.
In determining whether a minor-role adjustment applies, the district court
should consider two principles: “first, the defendant’s role in the relevant conduct
for which [he] has been held accountable at sentencing, and, second, [his] role as
compared to that of other participants in [his] relevant conduct.” Rodriguez De
Varon, 175 F.3d at 940. As to the first prong, “[o]nly if the defendant can establish
that [he] played a relatively minor role in the conduct for which [he] has already
been held accountable – not a minor role in any larger criminal conspiracy – should
the district court grant a downward adjustment for minor role in the offense.” Id.
at 944. As to the second prong, a district court should look at other participants
only to the extent that they (1) “are identifiable or discernable from the evidence”
and (2) “were involved in the relevant conduct attributed to the defendant.” Id.
The first prong may, in many cases, be dispositive. Id. at 945.
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Jones knew of both the robbery plans and the use of guns to complete the
robbery at Carlton Potts’ residence. He also actively assisted in that robbery. He
has not shown that he played a minor role in the relevant conduct for which he was
held accountable.
The district court’s decision is also supported under the second prong. Jones
argues that he was only assisting in a robbery and was not the supervisor,
mastermind, or organizer of the conspiracy. But Jones, along with the other
participants, beat the victims after forcing them to lie on the floor, searched the
house, and stole drugs and money. And, according to the victims and his
codefendant Jermaine Julian, he carried a gun into the robbery.
Even if Jones were less culpable than Julian, who shot and killed Potts
during the robbery, the district court did not clearly err in denying Jones a minor
role reduction. See id. at 944 (stating that “[t]he fact that a defendant’s role may be
less than that of other participants engaged in the relevant conduct may not be
dispositive of role in the offense, since it is possible that none are minor or
minimal participants”). The district court’s findings are supported by the record,
and the court properly applied the two-prong Rodriguez De Varon analysis. The
court’s judgment is therefore
AFFIRMED.
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