United States v. Kofie Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4792
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KOFIE AKIEM JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Clarksburg. Frederick P. Stamp,
Jr., Senior District Judge. (1:03-cr-00047-FPS-JSK-1)
Submitted: March 19, 2013 Decided: April 2, 2013
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
E. Ryan Kennedy, ROBINSON & MCELWEE, Clarksburg, West Virginia,
for Appellant. Robert H. McWilliams, Jr., Assistant United
States Attorney, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kofie Akiem Jones appeals his sentence at the low end
of his Guidelines range imposed in resentencing after the
district court granted his motion to vacate his mandatory life
sentence under 18 U.S.C. § 3559(c)(7) (2006). On appeal, Jones
contends that the district court abused its discretion by not
sentencing him below his Guidelines range, erred in finding
brandishing of a firearm on count six as a result of a special
interrogatory to the jury, and erred in applying an organizer or
leader enhancement and not a role reduction. We affirm.
We review a sentence under a deferential abuse-of-
discretion standard. See Gall v. United States, 552 U.S. 38, 51
(2007). The first step in this review requires us to ensure
that the district court committed no significant procedural
error, such as improperly calculating the Guidelines range,
failing to consider the 18 U.S.C. § 3553(a) (2006) factors, or
failing to adequately explain the sentence. United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009). If the sentence is
procedurally reasonable, we then consider the substantive
reasonableness of the sentence imposed, taking into account the
totality of the circumstances. Gall, 552 U.S. at 51. We
presume that a sentence within or below a properly calculated
Guidelines range is substantively reasonable. United States v.
Susi, 674 F.3d 278, 289 (4th Cir. 2012).
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In determining whether the district court properly
applied the Guidelines, we review the court’s legal conclusions
de novo and its factual findings for clear error. United States
v. Layton, 564 F.3d 330, 334 (4th Cir. 2009). Procedural
sentencing errors and other specific claims of error raised for
the first time on appeal are reviewed for plain error. United
States v. Hargrove, 625 F.3d 170, 184 (4th Cir. 2010); United
States v. Lynn, 592 F.3d 572, 577 (4th Cir. 2010). Preserved
claims are reviewed for abuse of discretion, and if we find
abuse, reversal is required unless the error was harmless.
Lynn, 592 F.3d at 576. Substantive reasonableness is reviewed
under an abuse-of-discretion standard. Carter, 564 F.3d at 328.
We have reviewed the record and conclude that Jones’s
sentence is both procedurally and substantively reasonable. The
district court did not clearly err in applying a two-level
enhancement for his role as organizer or leader in the criminal
activities or in denying a role reduction. The court correctly
calculated his Guidelines range and reasonably determined that a
sentence within the range was appropriate in this case. In
making this determination, the district court considered Jones’s
arguments and his post-original sentencing rehabilitation.
We further conclude that the district court did not
err in resentencing Jones on count six to a consecutive prison
term of twenty-five years under 18 U.S.C. § 924(c)(1)(C)(i)
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(2006). To the extent that Jones challenges his twenty-five
year sentence based on the jury’s finding that a firearm was
brandished, we conclude that the sentence was not dependent on
the finding and any error would necessarily be harmless. To the
extent that he challenges his conviction or otherwise challenges
the district court’s actions at trial, we conclude that Jones
waived this challenge by not raising it in his first appeal.
See United States v. Pileggi, 703 F.3d 675, 680 (4th Cir. 2013).
We therefore affirm the district court’s judgment. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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