United States v. Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4401
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
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.,
District Judge. (CR-03-47)
Submitted: January 19, 2005 Decided: February 9, 2005
Before WILKINSON, NIEMEYER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Brian A. Glasser, Leah P. Macia, BAILEY & GLASSER, L.L.P.,
Charleston, West Virginia, for Appellant. Thomas E. Johnston,
United States Attorney, Robert H. McWilliams, Jr., Michael D.
Stein, Assistant United States Attorneys, Wheeling, West Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Kofie Akiem Jones (“Jones”) appeals the final judgment of
the district court sentencing him to six concurrent life sentences.
Following a jury trial, the district court concluded that Jones was
a “Three Strikes” offender pursuant to 18 U.S.C. § 3559(c)(1)
(2000). This determination was made during Jones’ sentencing
hearing, in which the district court conducted a special inquiry
and determined that Jones was convicted of at least two prior
offenses that qualify as “serious violent felonies” under
§ 3559(c)(2)(F).
On appeal, Jones challenges the use of a 1996 conviction
for a 1994 robbery as a “strike” under the statute. Jones argues
that his 1994 robbery was a “non-qualifying felony” under
§ 3559(c)(1) because Jones and his accomplice (1) never brandished
a weapon or (2) threatened to use a weapon.
Based on our thorough review of the record, we find that
statements made by Jones and his accomplice to the victim, combined
with the appearance of large, protruding objects under the robbers’
pants, conveyed a threat that the victim might be assaulted with
those objects. As a result, we find that Jones has failed to
prove, by clear and convincing evidence, that no “threat of use” of
a firearm or dangerous weapon was involved in the 1994 robbery.
See United States v. Kaluna, 192 F.3d 1188, 1193-94 (9th Cir. 1999)
(stating that if a defendant asserts that a prior offense is a
"nonqualifying felony" under § 3559(c)(3)(A), the burden shifts to
the defendant to prove this affirmative defense by clear and
convincing evidence).
Accordingly, we affirm on the reasoning of the district
court. See United States v. Jones, 319 F. Supp. 2d 703 (N.D.W. Va.
2004). We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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