United States v. Jones, Anthony L.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 12, 2005
Decided August 3, 2005
Before
Hon. KENNETH F. RIPPLE, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 04-2429 & 04-2579
UNITED STATES OF AMERICA, Appeals from the United States
Plaintiff-Appellee, District Court for the
Eastern District of Wisconsin.
v.
No. 02 CR 144
ANTHONY L. JONES and
MICHAEL HUDSON, Charles N. Clevert, Jr.,
Defendants-Appellants. Judge.
ORDER
Anthony Jones and Michael Hudson pleaded guilty to involvement in a cocaine
distribution conspiracy. In this consolidated appeal both appellants challenge the
sentences imposed by the district court. Jones argues that the district court should
have reduced his offense level by two levels for acceptance of responsibility. See
U.S.S.G. § 3E1.1. Hudson argues that his sentence violates United States v. Booker,
125 S. Ct. 738 (2005), in that the district court treated the Sentencing Guidelines as
mandatory rather than advisory. We reject Jones’s argument and order a limited
remand in Hudson’s case pursuant to the procedure established in United States v.
Paladino, 401 F.3d 471, 483 (7th Cir. 2005), to determine whether the district court’s
Booker error affected his sentence.
Nos. 04-2429 & 04-2579 Page 2
Jones argues that the district judge should have credited him with a reduced
offense level for acceptance of responsibility. Under the Sentencing Guidelines if a
defendant clearly demonstrates acceptance of responsibility for his offense, he may be
entitled to a reduction of two (or, in some cases, three) levels. See U.S.S.G. § 3E1.1.
Jones entered his guilty pleas on January 29, 2004, and was allowed to remain on bond
pending sentencing on May 6, 2004. In the interim, however, Jones was arrested and
charged with reckless homicide for shooting and killing Robert Holt. Jones and Holt
had been neighborhood adversaries for some time, owing to Holt’s suspicion that Jones
was cooperating with law enforcement; two months before the homicide, Holt had shot
Jones in the arm after calling him a “snitch.”
Given the homicide charge, the recommendation in the presentence report was that
Jones should not receive a reduction in his offense level for acceptance of responsibility.
However, the district court expressed some reluctance to factor the homicide into
Jones’s sentence because Jones had not yet been convicted of the charge and was
asserting that the shooting was in self-defense. Instead, the court focused on the fact
that Jones, who was a twice-convicted felon, had purchased and carried a firearm,
which was a violation of the terms of his release bond and federal law. Jones’s counsel
argued that Jones had acquired the gun solely to protect himself from Holt, but the
court rejected this argument: “Self defense, if that is indeed what your client is
claiming, doesn’t excuse your client from possessing a firearm as a convicted felon.” In
denying Jones’s request for a two-point reduction for acceptance of responsibility, the
court concluded: “I’m not going to say today that I will overlook what [Jones] did and
in effect reward him by finding that he has accepted responsibility in this case wherein
early on he was told he could not violate federal, state or local law.”
We review a sentencing court’s determination of acceptance of responsibility for
clear error. United States v. Messino, 382 F.3d 704, 709 (7th Cir. 2004); United States
v. Beith, 407 F.3d 881, 891 (7th Cir. 2005) (findings under the Sentencing Guidelines
continue to be reviewed for clear error after Booker). Generally—though not always—a
defendant’s entry of a guilty plea prior to trial and truthful admission of the offense
conduct “will constitute significant evidence of acceptance of responsibility.” U.S.S.G.
§ 3E1.1, cmt. n.3. “However, this evidence may be outweighed by conduct of the
defendant that is inconsistent with such acceptance of responsibility.” Id. Application
Note 1(b) to § 3E1.1 specifies that an appropriate factor in the acceptance-of-
responsibility determination is the defendant’s “voluntary termination or withdrawal
from criminal conduct or associations.”
The question then is whether the district court properly found that Jones’s illegal
possession of a firearm was conduct inconsistent with acceptance of responsibility for
his cocaine charge. Jones argues that his possession of a gun was essentially unrelated
to his cocaine offense and therefore was not inconsistent with his acceptance of
responsibility for the drug crime. That is, he argues that it is possible for a criminal
defendant to accept responsibility for one crime even while committing others, as long
Nos. 04-2429 & 04-2579 Page 3
as the newly committed crimes do not reprise the original offense.
It is true that “[o]ur cases in which the [acceptance of responsibility] reduction was
denied generally involve similar criminal conduct to the charged offense.” See United
States v. McDonald, 22 F.3d 139, 141 (7th Cir. 1994). But we have held that “the broad
language of [Application] Note 1(b) indicates that the criminal conduct or associations
referred to relate not only to the charged offense, but also to criminal conduct or
associations generally.” Id. at 144. Ongoing criminal conduct unrelated to the crime
of conviction can indeed “reflect[] the defendant's lack of remorse and is inconsistent
with an acceptance of responsibility.” Id. The district court found that Jones’s gun
possession was inconsistent with acceptance of responsibility for his drug offense;
although the two offenses are dissimilar, we find no clear error in the court’s conclusion
that the illegal possession of a gun was sufficiently serious to undermine Jones’s
claimed acceptance of responsibility for his involvement in the cocaine conspiracy.1
Hudson argues that the district court erred under Booker in treating the
Sentencing Guidelines as mandatory. Because he did not make this objection at
sentencing, our review is for plain error. The government concedes that a limited
remand pursuant to the procedure established in Paladino is warranted so the district
court may state whether Hudson’s sentence would have been different had the court
applied the Guidelines as advisory at the time of sentencing.
Accordingly, we AFFIRM Jones’s conviction and sentence and order a limited
REMAND of Hudson’s sentence consistent with our opinion in Paladino; we will retain
jurisdiction over Hudson’s appeal pending the outcome of the remand.
1
Jones has not raised an argument under United States v. Booker, 125 S. Ct. 738(2005), and his counsel confirmed twice at oral argument that Jones is not requesting
a limited remand pursuant to United States v. Paladino, 401 F.3d 471, 483 (7th Cir.
2005).