United States v. George Jones

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1923
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UNITED STATES OF AMERICA
v.
GEORGE E. JONES,
Appellant
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On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 1:09-cr-183-01)
District Judge: Honorable James M. Munley
______
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 5, 2011
Before: HARDIMAN, BARRY, and VAN ANTWERPEN, Circuit Judges.
(Filed: December 6, 2011)
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OPINION OF THE COURT
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VAN ANTWERPEN, Circuit Judge.
George E. Jones appeals from the District Court‘s imposition of a 151 month
sentence following his guilty plea. Jones argues that the District Court imposed an
unreasonable sentence by committing both procedural and substantive error.
Procedurally, Jones argues that the District Court erred by (1) failing to adequately
address colorable mitigation arguments made in support of a downward variance, (2)
relying on ―questionable and/or inappropriate‖ considerations, and (3) limiting defense
counsel‘s opportunity to present argument during the sentencing hearing. Substantively,
Jones argues that the Court erred by both failing to give adequate weight to the factors
under 18 U.S.C. § 3553(a) and by incorrectly concluding that all of the drugs attributed to
him were for distribution, rather than personal use.1 For the reasons that follow, we will
affirm the sentence imposed by the District Court.
I.
Because we write solely for the parties, we recount the facts and proceedings only
to the extent required for resolution of this appeal. On January 27, 2009 and March 16,
2009, Jones was contacted by two separate confidential informants seeking to purchase
crack cocaine. Jones sold $40 worth of crack cocaine to the first informant and $60
worth of crack cocaine to the second. Following these two transactions, local law
enforcement officers obtained a search warrant for Jones and the car from which he made
the transactions. Upon executing the warrant, officers recovered 100 baggies of crack
cocaine with a total weight of 28.2 grams, as well as a digital scale, police scanner,
1
Jones also argues that the District Court abused its discretion by refusing to grant a
downward departure under U.S.S.G. § 5k2.13. However, as this Court has repeatedly
recognized, a district court‘s discretionary denial of a departure motion is not subject to
appellate review. See United States v. Jackson, 467 F.3d 834, 839 (3d Cir. 2006).
2
unused baggies, and 284.9 grams of marijuana. On January 26, 2010, Jones entered a
guilty plea to distribution of cocaine base, in violation of 21 U.S.C. § 841(a).
After Jones entered his guilty plea, the probation department prepared a
presentence report (―PSR‖) in which it determined that Jones had a Category VI criminal
history based on his eighteen criminal history points.2 The PSR determined that Jones‘s
Total Offense Level was 29, which reflected both a six-point enhancement for Jones‘s
career offender status under U.S.S.G. § 4B1.1,3 and a three-point reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(a) and (b). Jones‘s combined
criminal history and offense level yielded a recommended imprisonment range of 151 to
188 months. Jones did not dispute this determination.
Jones‘s sentencing hearing was on March 29, 2011. Prior to the hearing, Jones
filed three detailed sentencing memorandums wherein he requested downward departures
under both U.S.S.G. §§ 4A1.3(b)(3) and 5K2.13. Jones argued for a departure under
U.S.S.G. § 4A1.3(b)(3) on the grounds that the Guidelines overrepresented the
seriousness of his criminal history. Jones stressed that the vast majority of his prior
convictions occurred nine to ten years prior to the instant offense, when he was just a
teenager; that the quantity of drugs involved in the prior offenses was very small; and that
2
Jones received fifteen points for five convictions (including two for possession with
intent to deliver cocaine) occurring between July 1999 and August 2000, two points for a
2004 conviction, and one point for a 2008 conviction.
3
Jones‘s career offender status was based on his two prior convictions for possession
with intent to distribute cocaine.
3
approximately ninety percent of the 29.14 grams of crack cocaine attributed to him in the
instant offense was for personal use, not distribution. Based on these circumstances,
Jones argued that his situation was very similar4 to the defendant in United States v.
Merced, No. 2:08-cr-000725, 2010 WL 3118393 (D.N.J. Aug. 4, 2010), where the court
issued a sentence well below the Guidelines.
Jones argued for a downward departure under U.S.S.G. § 5K2.13 based on the
conclusion of a forensic psychiatrist that Jones‘s crack addiction, which began at the age
of thirteen due to a drug-infested home environment, significantly diminished his
capacity to control his actions with respect to the possession of crack cocaine.
Jones also requested a downward variance based on the factors set forth in 18
U.S.C. § 3553(a).5 In particular, Jones argued that the nature, circumstances, and
4
―[T]he thrust of Jones‘s sentencing arguments‖ was that he ―was similarly situated to
the Merced defendant, who received a variance that led to a sentence far below what the
career offender guidelines called for [92 months instead of the recommended range of
188 to 235 months].‖ Appellant‘s Reply Br. at 2. Jones argued that ―both Merced and
Jones were street level dealers as opposed to drug kingpins who moved very large
quantities of drugs and engaged in violence,‖ and that, ―[i]f anything,‖ he was ―even
more deserving of a substantial variance than Merced was.‖ Id. at 3. Jones noted, for
example, that whereas Merced distributed 49.1 grams of crack cocaine in a ―single
transaction,‖ Jones‘s two transactions to the informants comprised a total of just 0.94
grams. Id. Jones argued, therefore, that a sentence of 151 months would create an
unwarranted sentencing disparity between him and the Merced defendant.
5
The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
defendant‘s history; (2) the need to reflect the seriousness of the crime, adequately deter
criminal conduct, protect the public, and provide training or medical care; (3) the types of
sentences that could be imposed; (4) the established sentencing range; (5) any pertinent
sentencing policies; (6) the need to avoid sentencing disparities; and (7) the need to
provide restitution to victims. 18 U.S.C. § 3553(a)(1)–(7).
4
seriousness of his offense closely matched the situation addressed by the district court in
Merced, and that a disparity in the sentence between he and the Merced defendant would
be unwarranted under § 3553(a)(6). Based on these requested departures and variances,
Jones argued for a sentence between 27 and 37 months.
At the sentencing hearing, the District Court denied Jones‘s requested departures
and variance, but imposed the minimum sentence (151 months) recommended under the
Guidelines. Thereafter, Jones timely appealed.
II.
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction
under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
―Our responsibility on appellate review of a criminal sentence is limited yet
important: we are to ensure that a substantively reasonable sentence has been imposed in
a procedurally fair way.‖ United States v. Levinson, 543 F.3d 190, 195 (3d Cir. 2008).
―At both stages of our review, the party challenging the sentence has the burden of
demonstrating unreasonableness.‖ United States v. Tomko, 562 F.3d 558, 567 (3d Cir.
2009) (en banc). The abuse of discretion standard applies to both inquiries. Id.
Appellate review of a criminal sentence proceeds in two stages. United States v.
Merced, 603 F.3d 203, 214 (3d Cir. 2010) (citing Gall v. United States, 552 U.S. 38, 46
(2007)). First, we determine whether the District Court committed a ―significant
procedural error.‖ Gall, 552 U.S. at 51. One such error, relevant to the case at hand, is a
failure ―to consider the § 3553(a) factors . . . or failing to adequately explain the chosen
5
sentence.‖ Id. We must, therefore, determine that a district court gave ―meaningful
consideration‖ of any ―sentencing argument which has colorable legal merit and a
factual basis.‖ United States v. Ashburn, 502 F.3d 313, 329 (3d Cir. 2007). While the
―fact-bound nature of each sentencing decision‖ precludes development of a ―uniform
threshold‖ for making this determination, Tomko, 562 F.3d at 567, we have stated that a
―rote statement of the § 3553(a) factors‖ will not suffice. United States v. Sevilla, 541
F.3d 226, 232 (3d Cir. 2008) (quoting United States v. Cooper, 437 F.3d 324, 329 (3d
Cir. 2006), abrogated on other grounds by Kimbrough v. United States, 552 U.S. 85
(2007)). ―A sentencing court need not,‖ however, ―make findings as to each factor if the
record otherwise makes clear that the court took the factors into account.‖ United States
v. Lessner, 498 F.3d 185, 203 (3d Cir. 2007).
If the District Court‘s decision is procedurally sound, we then consider the
substantive reasonableness of the sentence. Gall, 552 U.S. at 51. In reviewing
substantive reasonableness, ―[w]e may not reverse the district court simply because we
would have imposed a different sentence.‖ United States v. Wise, 515 F.3d 207, 218 (3d.
Cir. 2008). As this Court has repeatedly recognized, ―‗reasonableness is a range, not a
point,‘‖ and ―[a]s long as a sentence falls within the broad range of possible sentences
that can be considered reasonable in light of the § 3553(a) factors, we must affirm.‖ Id.
(quoting Cooper, 437 F.3d at 332 n.11). Accordingly, so long as a sentence is
procedurally sound, we will affirm ―unless no reasonable sentencing court would have
6
imposed the same sentence on that particular defendant for the reasons the district court
provided.‖ Tomko, 562 F.3d at 568.
III.
(A) PROCEDURAL ERROR
Jones argues that the District Court committed three procedural errors. He argues
that the Court (1) failed to meaningfully consider his arguments for a downward variance
under § 3553(a), (2) relied upon inappropriate considerations in reaching its decision, and
(3) limited his opportunity to respond to the Government‘s argument during the
sentencing hearing. We address each argument in turn.
(1) Meaningful Consideration
Jones argues that the District Court failed to meaningfully consider several of his
key arguments, including the remoteness in time of his prior convictions, the small
quantity of drugs involved in his current and prior offenses, and the similarity between
his situation and that of the defendant in Merced, 2010 WL 3118393. We disagree.
Based on the considerations for assessing meaningful consideration set forth by the
Supreme Court and this Court, we have no doubt that the District Court meaningfully
considered each of Jones‘s arguments. We begin with a brief discussion of these
decisions, and then turn to the facts at hand.
In Rita v. United States, 551 U.S. 338 (2007), the Supreme Court made it clear that
the brevity or length of a sentencing court‘s decision, and the specificity with which a
court addresses a party‘s arguments, is largely a matter of the ―judge‘s own professional
7
judgment.‖ 551 U.S. at 356. The district court in Rita ruled that the Guidelines‘
recommendation was not ―inappropriate,‖ but did not specifically address the defendant‘s
three arguments for a downward variance. Id. at 358–59. While the district court‘s
reasoning was notably brief, the Court found no procedural error since it was clear from
the record that the sentencing judge had ―listened to,‖ was ―fully aware of,‖
―understood,‖ and ―considered‖ Rita‘s three arguments. Id. at 358. While the Court
―acknowledge[d] that the judge might have said more,‖ it found that ―[w]here a matter is
as conceptually simple as in the case at hand and the record makes clear that the
sentencing judge considered the evidence and arguments, we do not believe the law
requires the judge to write more extensively.‖ Id. at 359.
This Court faced a similar scenario in United States v. Tomko, 562 F.3d 558 (3d
Cir. 2009). There, the Government ―exhaustively asserted‖ that a failure to incarcerate
the defendant would undermine the deterrent value of the law at issue. Tomko, 562 F.3d
at 568. While the district court never specifically addressed this deterrence argument, it
stated ―immediately after the Government made [its deterrence argument]‖ that a
sentence without incarceration would address ―the sentencing goals of punishment,
deterrence and rehabilitation.‖ Id. at 569 (emphases added). Since the record made clear
that the sentencing judge ―heard the Government‘s impassioned plea‖ and ―considered
general deterrence‖ prior to handing down its sentence, we found no error. Id.
Of particular relevance to the case at bar is our decision in United States v.
Jackson, 467 F.3d 834 (3d Cir. 2006). There, it was alleged that the district court failed
8
to meaningfully consider the defendant‘s argument that the Guidelines overrepresented
his criminal history. Jackson, 467 F.3d at 842. We rejected this contention since the
sentencing court justified its sentence based on the defendant‘s ―seven prior adult
convictions‖ and the fact that two of the offenses involved violence. Id. While the judge
did not specifically reference the defendant‘s argument that his criminal history was
overrepresented by the Guidelines, we reasoned that reference to the defendant‘s seven
prior adult convictions and the acts of violence ―indicate[d] that the Judge did not believe
Jackson‘s criminal history to be over-represented in the Guidelines calculation.‖ Id.; see
also Lessner, 498 F.3d at 203 (finding meaningful consideration despite ―scant‖
discussion of § 3553(a) factors where sentencing judge engaged in ―extensive and
thoughtful questioning . . . over two days of hearings‖).
Finally, it is instructive to consider the circumstances where we have found a lack
of meaningful consideration. In United States v. Grier, 475 F.3d 556 (3d Cir. 2007), we
found a lack of meaningful consideration because ―[t]he only explanation‖ that the
sentencing court provided was that its sentence was ―reasonable in view of the
considerations of section 3553(a).‖ Grier, 475 F.3d at 571 (emphasis added). Similarly,
in United States v. Sevilla, 541 F.3d 226 (3d Cir. 2008), the sentencing judge never
addressed Sevilla‘s nonfrivolous arguments ―other than to say that it had ‗considered all
of the [§] 3553(a) factors.‘‖ Sevilla, 541 F.3d at 232.
With these prior decisions as our calculus, we proceed to discuss Jones‘s
arguments. First, Jones asserts that the District Court failed to meaningfully consider his
9
argument that the Category VI criminal history score overrepresents the seriousness of
his criminal history since ―15 of the 18 criminal history points‖ accrued nine to ten years
prior to the instant offense—when Jones was just a teenager. Appellant‘s Br. at 15.
According to Jones, the District Court ―entirely ignored‖ this mitigating circumstance.
Id. The record, however, proves otherwise. After acknowledging that ―we talked a lot
about the overrepresentation of the Defendant‘s criminal record,‖ the Court stated its
concern that Jones ―not only has two qualifying offenses, he also has eight juvenile
adjudications and seven adult criminal convictions,‖ including one for ―punching
somebody in the face twice for no stated reason.‖ App. 130–31, 140. Even if it did not
expressly reference Jones‘s remoteness-in-time argument, the record makes it obvious
that the Court found the quantity of Jones‘s offenses, and their drug-related nature, to be
more important than their relative remoteness. In light of Rita, Tomko, Jackson, Grier,
and Sevilla, this is sufficient to demonstrate the Court‘s meaningful consideration of the
remoteness argument.
Jones also argues that the District Court failed to consider his argument regarding
the small quantity of drugs involved in his prior offenses. In his memoranda, and at the
sentencing hearing, Jones argued that the small quantity of drugs in his prior and instant
offenses highlights that he is not a ―kingpin‖ dealer, but just a street-level dealer ravaged
by an uncontrollable drug addiction. Appellant‘s Reply Br. at 3–6. While Jones faults
the District Court for not expressly discussing the small quantity of drugs in his prior
offenses, it is clear that the District Court found the high quantity of drugs in the instant
10
offense to warrant greater weight in its determination and to run counter to Jones‘s claim
of being primarily an addict. As the District Court noted, ―it is the Court‘s experience
that hardcore crack cocaine users generally do not possess large quantities of drugs,
which in this case had a value of $2,000.‖ App. 130. The District Court also expressed
incredulity regarding Jones‘s claim that the twenty-eight grams of crack cocaine in the
instant offense, which Jones had ―in a hundred different baggies,‖ was for personal use.
See id. at 129–30. Moreover, while the Court clearly recognized that Jones developed a
severe drug addiction as a young child,6 it expressed concern that Jones was ―blaming his
criminal activities on his substance abuse,‖ and stated that this reflected a ―failure to take
responsibility for his past offenses.‖ Id. 124. Accordingly, we find the record sufficient
to demonstrate that the District Court meaningfully considered Jones‘s argument.
Finally, Jones argues that the District Court‘s ―complete silence‖ regarding his
argument that he was similarly situated to the defendant in Merced proves a lack of
meaningful consideration. Appellant‘s Br. at 16. According to Jones, the sentencing
court ―did not so much as mention the name ‗Merced,‘‖ and made ―no attempt to
reconcile or distinguish‖ the Merced court‘s grant of a downward variance under
circumstances very similar to Jones‘s. Id. Again, we disagree.
6
After defense counsel pointed out that Jones‘s drug addiction was more severe than
most ―because of it occurring at such an early stage and being continuing throughout,‖
the Court noted, ―[i]t is terrible. I mean, he was a child when all of this began.‖ App.
138.
11
As our precedent makes clear, there was no requirement for the District Court to
specifically mention the Merced decision by name so long as the record and context make
clear that it considered Jones‘s argument. See Rita, 551 U.S. at 358–59; Tomko, 562 F.3d
at 568–69. Here, Jones argued the Merced case at length, and it is clear that the judge
―listened to,‖ ―considered,‖ and ―was fully aware of‖ the argument. Indeed, after Jones‘s
attorney finished a lengthy discussion of Merced, the Court asked: ―So what is the point?
I understand the case.‖ App. 119 (emphasis added). Jones‘s counsel responded by
clarifying that ―the point‖ is that the Merced court‘s reasoning ―appl[ies] equally, if not
with more force, to my client, because all of those things can be said about my client.‖
Id. Not only was the court fully aware of the Merced argument, it addressed the
underlying issue of sentencing disparities in its explanation. Whereas Jones‘s attorney
had argued that a refusal to grant a downward variance would create a sentencing
disparity between Jones and the Merced defendant, the Court was ultimately more
concerned that permitting the variance would create an unwarranted sentencing disparity
between Jones and other defendants. As the Court noted, ―[m]any of the Defendants who
qualify as career offenders have far fewer criminal history points [than Jones] and still
receive the significant sentences contemplated by Congress.‖ Id. at 141. While Jones
clearly disagrees with the logic and brevity of the Court‘s reasoning, the record is more
than sufficient to demonstrate meaningful consideration.
(2) Allegedly Inappropriate Considerations
12
We now turn our attention to Jones‘s argument that the District Court committed
procedural error by relying on ―questionable and/or inappropriate factors.‖ Appellant‘s
Br. at 19. Jones argues—without citation to legal authority—that the Court
impermissibly relied on his juvenile offenses as a factor supporting the seriousness of his
criminal history. Jones reasons that, because the Guidelines do not count his juvenile
offenses towards his criminal history score, the District Court erred by relying on them as
a justification for not permitting a downward variance. This argument, however, is at
odds with this Court‘s decision in United States v. Thomas, 961 F.2d 1110 (3d Cir. 1992).
In Thomas, we accepted the proposition that a district court could support an upward
departure on the basis of non-countable juvenile offenses that were similar in nature to
the offense at issue. 961 F.2d at 1117. There is, therefore, no per se bar on considering
non-countable juvenile offenses. Moreover, it stands to reason that if non-countable
juvenile offenses can be used to increase a defendant‘s sentence above the Guidelines‘
recommended range, a district court can consider non-countable juvenile offenses to
justify a sentence within the Guidelines‘ recommended range. Accordingly, we cannot
say that the District Court committed procedural error by considering Jones‘s juvenile
offenses.
Jones also argues that the Court erred by relying on the Government‘s
characterization of his prior offenses as demonstrating a ―history of violence.‖ Jones
argues that this was an error because none of his prior offenses meet what he argues to be
the requisite threshold for ―crime[s] of violence.‖ Appellant‘s Br. at 21. We disagree.
13
The District Court‘s agreement with the Government that Jones‘s criminal history
included violent acts that reflected the defendant‘s character was a factual finding within
the Court‘s expertise and discretion.
(3) Jones’s Opportunity to Present at Hearing
Jones argues that the District Court committed a third procedural error by limiting
his attorney‘s opportunity to respond to the Government during the hearing. We
disagree. The only concrete example7 that Jones points to is the Court‘s instruction to
Jones‘s attorney to limit to two minutes his response to one of the Government‘s
arguments. Since the Government itself only took two minutes in making its argument,
the Court‘s request was reasonable. Moreover, as the Government correctly states in its
brief, Jones had already filed ―three extensive sentencing memoranda‖ prior to the
hearing and his attorney had already had an ―unlimited opportunity to argue his position‖
at the hearing. Appellee‘s Br. at 23.
(B) SUBSTANTIVE ERROR
We now turn to Jones‘s claim that the District Court committed substantive error
by failing to give adequate weight to the section 3553(a) factors. The thrust of Jones‘s
argument is that the Court failed to consider the nature, circumstances, and seriousness of
Jones‘s offense in the context of the similarly situated defendant in Merced, and, as a
7
While Jones raises several other purported examples of the Court ―attempting to limit‖
his argument at the hearing, see Appellant‘s Reply Br. at 11–12, the examples merely
reflect instances where the Court was sufficiently aware of the argument at hand to not
warrant further discussion, or the Court disagreed with Jones‘s characterization of the
evidence.
14
result, gave insufficient attention to the need to avoid sentencing disparities under §
3553(a)(6). While we have no doubt that a district court could reasonably agree with
Jones‘s sentencing argument concerning Merced, it does not follow that the District
Court‘s position was unreasonable. As we have recognized, ―‗reasonableness is a range,
not a point,‘‖ and if the sentence ―falls within the broad range of possible sentences that
can be considered reasonable in light of the § 3553(a) factors, we must affirm.‖ Wise,
515 F.3d at 218 (quoting Cooper, 437 F.3d at 332 n.11).
Here, the District Court imposed the minimum sentence recommended under the
Guidelines for a defendant in Jones‘s position. While Jones disagrees with the Court‘s
rejection of his argument about avoiding an unwarranted disparity with the Merced
defendant, the Court‘s reasoning on this factor was clear, logical, and well within the
broad range of reasonableness. The Court observed that Jones‘s eighteen criminal history
points put him well above the thirteen-point threshold for Category VI and that ―[m]any
of the Defendants who qualify as career offenders have far fewer criminal history points
and still receive the significant sentences contemplated by Congress.‖ App. 141. The
Court thus concluded that granting Jones a downward variance would create sentencing
disparities with ―other Defendants who have been found guilty of similar conduct.‖ Id.
Accordingly, because we cannot agree that ―no reasonable sentencing court would have
imposed the same sentence,‖ Tomko, 562 F.3d at 568, we will affirm.
Jones also argues that the District Court substantively erred by concluding that all
of the drugs found on Jones were for distribution, rather than personal use. We have no
15
trouble, however, concluding that the Court did not err8 in discrediting Jones‘s argument
that over ninety percent of the crack cocaine was for personal use. The fact that Jones
was found with $2,000 worth of crack cocaine packaged in 100 baggies as well as tools
used for drug distribution (e.g., a digital scale) is more than sufficient to justify the
Court‘s finding.
V.
Having found no procedural or substantive error, we will affirm the District
Court‘s judgment of sentence.
8
When it comes to factual matters, we will only find an abuse of discretion where the
sentencing court‘s finding was ―clearly erroneous.‖ Wise, 515 F.3d at 217.
16