United States v. Jerel Evans

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 15-2060
__________
UNITED STATES OF AMERICA
v.
JEREL EVANS, a/k/a Gigante
Jerel Evans,
Appellant
__________
On Appeal from the United States District Court
for the District of New Jersey
(Crim. No. 3-14-cr-00307-001)
District Judge: Mary L. Cooper
Submitted Under Third Circuit LAR 34.1(a)
March 14, 2016
Before: FUENTES,* CHAGARES, and RESTREPO, Circuit Judges
(Filed: September 1, 2016)
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OPINION**
__________
*
Honorable Julio M. Fuentes assumed Senior Status on July 18, 2016.
**
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
FUENTES, Circuit Judge:
Jerel Evans appeals his sentence to 60 months’ imprisonment stemming from his
conviction of conspiring with others to distribute 500 grams or more of cocaine. For the
reasons that follow, we will affirm the sentence imposed by the District Court.
I. BACKGROUND1
Evans was involved in a conspiracy with Roberto Rentas-Negron and others to
distribute cocaine in the Elizabeth, New Jersey area. In 2012, Evans and Rentas-Negron
were involved in number of phone conversations, monitored by federal authorities,
during which they discussed preparing the drugs for distribution. Based on an
investigation, the government was also led to believe that the conspiracy stretched
beyond New Jersey to Pennsylvania, Connecticut, and Maryland.
In 2014, Evans and fourteen other individuals were arrested and charged with
knowingly and intentionally conspiring and agreeing to distribute and possess with intent
to distribute 500 grams or more of a mixture and substance containing a detectable
amount of cocaine, in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B) and 21 U.S.C. §
846. Soon after, Evans entered into a plea agreement with the government under which
he agreed to plead guilty to one count of conspiracy to distribute 500 grams or more of
cocaine. The parties stipulated to an offense level of 21 if Evans qualified for a 2-level
safety valve reduction under U.S.S.G. § 2D1.1(b)(16) at sentencing, but an alternative
offense level of 23 if he did not qualify for the safety valve. The government, moreover,
1
The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over
this matter under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
also agreed to a two-level downward variance in anticipation of certain amendments to
the Guidelines. The parties also agreed that, among other things, they would reserve the
right to appeal the sentencing court’s determination of the criminal history category.
During his sentencing hearing, which was adjourned and re-adjourned, the District
Court first calculated the advisory Guidelines and the parties agreed that the total offense
level was 21. The parties then presented argument regarding Evans’ three prior territorial
and state-law misdemeanor convictions in Puerto Rico and New Jersey. After thorough
consideration of the contentions provided by both sides, as well as the U.S. Probation
Office’s Presentence Investigation Report, the court then assigned three criminal history
points to Evans’ sentence based on those convictions pursuant to U.S.S.G. § 4A1.2(c)(1)
and (2). The first two points were added as a result of Evans’ 2005 larceny conviction
and his 2008 receipt of stolen goods conviction. Evans committed both of these offenses
in Puerto Rico at the ages of 18 and 21, respectively. The third criminal history point
resulted from Evans’ 2011 marijuana possession conviction in New Jersey. With the
resulting three criminal history points based on these misdemeanor offenses, the court
imposed a mandatory minimum sentence of 60 months’ imprisonment. Evans was also
ineligible for the safety-valve provision under the Sentencing Guidelines.2 This appeal
followed.
2
See U.S.S.G. § 5C1.2(a)(1) (eligibility for relief from mandatory minimum sentence
limited to those defendants who do “not have more than 1 criminal history point”).
3
II. DISCUSSION
Evans first contends that the District Court erred by considering his two prior
convictions in Puerto Rico because they were both petty offenses.3 The first offense
occurred three months after Evans’ eighteenth birthday, when Evans was charged with
larceny under Puerto Rican law. The second, a conviction for receipt, disposal, and
transfer of stolen goods under Puerto Rican law, occurred when Evans was 21. Neither
offense resulted in a prison term.
The Sentencing Guidelines state that “misdemeanor and petty offenses are
counted” as criminal history points unless they are offenses expressly listed in (c)(1) or
(c)(2) or similar to the offenses listed in (c)(1) or (c)(2). 4 The lists of offenses under
(c)(1) and (c)(2) include:
Careless or reckless driving
Contempt of court
Disorderly conduct or disturbing the peace
Driving without a license or with a revoked or suspended license
False information to a police officer
Gambling
Hindering or failure to obey a police officer
Insufficient funds check
Leaving the scene of an accident
Non-support
Prostitution
3
“We exercise plenary review over the District Court’s interpretation and application of
the Guidelines, we review determinations of fact for clear error, and we ‘give due
deference to the district court’s application of the guidelines to the facts.’” United States
v. Zabielski, 711 F.3d 381, 386 (3d Cir. 2013) (internal citations omitted). We review
purely legal questions de novo. United States v. Blair, 734 F.3d 218, 211 n.3 (3d Cir.
2013).
4
U.S.S.G. § 4A1.2(c).
4
Resisting arrest
Trespassing
...
Fish and game violations
Hitchhiking
Juvenile status offenses and truancy
Local ordinance violations (except those violations that are also violations under
state criminal law)
Loitering
Minor traffic infractions (e.g., speeding)
Public intoxication
Vagrancy.
In other words, unless Evans’ offenses were specifically identified in these lists or
are similar to these offenses, the District Court had no choice but to include the offenses
when calculating Evans’ sentence. None of Evans’ offenses are listed in Section
4A1.2(c). As to whether Evans’ offenses are “similar” to a listed offense, we apply:
a common sense approach that includes consideration of
relevant factors such as (i) a comparison of punishments
imposed for the listed and unlisted offenses; (ii) the perceived
seriousness of the offense as indicated by the level of
punishment; (iii) the elements of the offense; (iv) the level of
culpability involved; and (v) the degree to which the
commission of the offense indicates a likelihood of recurring
criminal conduct.5
We have applied the common sense approach required by the Guidelines and
conclude that neither of Evans’ convictions are remotely similar to any of the listed under
the statute. Therefore, because the District Court was required to add three criminal
5
U.S.S.G. § 4A1.2, cmt. n.12(A); see also United States v. Hines, 628 F.3d 101, 110 (3d
Cir. 2010).
5
history points to Evans’ sentence, we conclude that it committed no error by imposing a
mandatory minimum sentence of 60 months’ imprisonment.6
Evans also argues that the 60-month sentence was both substantively and
procedurally unreasonable, given his minimal criminal history and the need to avoid
unwarranted sentencing disparities. We reject these contentions. The District Court had
no authority to sentence Evans to anything less than a mandatory minimum of 60 months’
imprisonment, and therefore any arguments regarding the authority or discretion of the
District Court to sentence otherwise are rendered moot.7
III. CONCLUSION
For substantially the same reasons set forth in the record, we affirm the sentence
imposed by the District Court.
6
See U.S.S.G. 5G1.1(b). We further reject Evans’ additional argument that the District
Court failed to consider his objections to the criminal history calculation. The record
reveals that the court fully considered the arguments presented by his counsel and the
government and, after careful consideration, imposed one point for each conviction.
7
United States v. Winebarger, 664 F.3d 388, 392 (3d Cir. 2011).
6