United States v. Willie Jones

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 11-3830
___________________________
United States of America
lllllllllllllllllllllAppellee
v.
Willie V. Jones
lllllllllllllllllllllAppellant
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: April 19, 2012
Filed: November 6, 2012
____________
Before LOKEN and SHEPHERD, Circuit Judges, and GERRARD,1 District Judge.
____________
SHEPHERD, Circuit Judge.
Willie V. Jones pled guilty to possession with intent to distribute heroin, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and possession of a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). After
1
The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska, sitting by designation.
entering his plea, Jones moved to withdraw the plea, arguing his counsel had given
him inadequate information about the Sentencing Guidelines. The district court2
denied the motion to withdraw. Over Jones’s objections, the court applied the career
offender provisions of the Sentencing Guidelines and sentenced Jones to consecutive
terms of 200 months for the drug charge and 60 months for the firearm charge,
resulting in a 260-month total sentence. Jones now appeals his sentence. In a pro se
supplemental brief, he also challenges the district court’s denial of his motion to
withdraw his plea. We affirm.
I.
While investigating an unrelated crime in 1997, the Federal Bureau of
Investigation learned through a confidential informant that Jones admitted to his
involvement in a July 25, 1997 robbery and shooting at a rock quarry in Johnson
County, Kansas. In September 1997, the same informant contacted FBI agents and
told them that Jones was selling rifles and silencers. The informant participated in a
controlled buy of a rifle and silencer from Jones on September 30, 1997.
On December 1, 1997, Jones was arrested and charged in Johnson County,
Kansas District Court with two counts of robbery and one count of aggravated assault
for the rock quarry incident. On April 2, 1998, he was arrested and charged in the
Western District of Missouri with several federal firearms violations related to the
possession and sale of the rifle and silencer to the confidential informant.
On August 27, 1998, a Missouri federal jury convicted Jones of all
firearms-related counts. The district court sentenced him to 41 months imprisonment.
In March 2000, Jones faced trial in Kansas state court for the robbery and shooting
2
The Honorable Dean Whipple, United States District Judge for the Western
District of Missouri.
-2-
charges. After a jury convicted him of all counts, the state court sentenced him to 77,
55, and 13 months to be served concurrently to each other but consecutive to his
federal sentence. Jones was incarcerated on and off from August 1998 through
November 2009. During this time, he would occasionally be released from custody
on bond or supervised release but would later have the bond or supervised release
revoked due to violations.
In October 19, 2010, the United States charged Jones with two counts of
firearm violations and three counts of drug violations. Jones entered a guilty plea to
two of the counts—possession with intent to distribute heroin and possession of a
firearm in furtherance of a drug trafficking crime. The probation office prepared a
presentence report (PSR). The PSR recommended that Jones be sentenced as a career
offender under United States Sentencing Commission, Guidelines Manual,
§4B1.1(c)(2) because he had two prior crimes of violence—the federal firearms
conviction and the state robbery and shooting convictions. Jones objected, arguing
that the two crimes should be counted as a single offense for criminal history and
enhancement purposes. The district court overruled this objection, holding that the
career offender enhancement was applicable. With the career offender enhancement,
Jones’s Guidelines range was 262 to 327 months imprisonment. The court varied
downward slightly, imposing consecutive terms of 200 months for the heroin
conviction and 60 months for the firearm conviction, for a total sentence of 260
months imprisonment.
Jones appeals his sentence, arguing that the district court should not have
applied the career offender enhancement and that his sentence is substantively
unreasonable. Jones has also submitted pro se filings arguing he should have been
permitted to withdraw his plea.
-3-
II.
First, we address the district court’s imposition of the career offender
enhancement, an issue we review de novo. See United States v. Eason, 643 F.3d 622,
623 (8th Cir. 2011), cert. denied, 132 S. Ct. 1053 (2012). Persons who are convicted
of a crime of violence or a controlled substance offense and who have two prior felony
convictions for such crimes are sentenced as “career offenders.” U.S.S.G. §4B1.1.
Prior felony convictions are always counted separately for career offender purposes
if sentences were imposed for offenses that were separated by an intervening arrest;
if there was no intervening arrest, prior sentences are nonetheless counted separately
unless the sentences “resulted from offenses contained in the same charging
instrument” or “were imposed on the same day.” U.S.S.G. §4A1.2(a)(2); see United
States v. Crippen, 627 F.3d 1056, 1066 (8th Cir. 2010), cert. denied, 131 S. Ct. 2914(2011). The government concedes that there was no intervening arrest between the
two prior offenses. Therefore, we consider whether Jones’s prior sentences “resulted
from offenses contained in the same charging instrument” or “were imposed on the
same day.”
Jones argues that although his two prior convictions were prosecuted in
different jurisdictions—Kansas state court and Missouri federal court—and although
he was sentenced on different days, the district court should have considered the
offenses as a single sentence because the offenses were “inextricably intertwined” and
part of a single, ongoing offense. Essentially, Jones contends that this court should
ignore the fact that the two prior offenses were charged in different jurisdictions, and
thus brought in separate charging instruments, and the fact that the prior sentences
were imposed on separate days. Such an approach would ignore the clear instruction
from section 4A1.2(a)(2). Accordingly, the district court properly determined that the
prior sentences were “separate” for purposes of section 4B1.1.
-4-
Next, Jones argues that his 260-month sentence, which included a two-month
downward variance from his Sentencing Guidelines range, was substantively
unreasonable. We review the substantive reasonableness of a sentence under a
“deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). “‘A district court abuses its discretion when it (1) fails to consider a relevant
factor that should have received significant weight, (2) gives significant weight to an
improper or irrelevant factor, or (3) considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.’” United States v. Shakal,
644 F.3d 642, 645 (8th Cir. 2011) (quoting United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009) (en banc)).
Jones argues his sentence is substantively unreasonable because (1) application
of the career offender enhancement resulted in a sentence that was disproportionate
to Jones’s history and characteristics; (2) although Jones pled guilty to a firearm
offense, he was never observed handling a firearm or otherwise involved in any
violent activity; (3) a lower sentence, in line with what his Guidelines range would
have been absent the career offender enhancement, would reflect the seriousness of
the offense, promote respect for the law, and serve as a deterrent; and (4) at the age
of 47, Jones would be unlikely to commit further crimes if released in seven to eight
years, therefore making the over-20-years sentence he received excessive.
Jones does not argue that the district court weighed an irrelevant factor or failed
to consider a relevant factor. Instead, he argues that the court “commit[ted] a clear
error in judgment” when weighing the sentencing factors. At sentencing, Jones
argued these same issues to the district court. After hearing Jones’s arguments, the
district court determined that, under 18 U.S.C. § 3553(a), only a two-month downward
variance was warranted. The court conducted a thorough review of Jones’s criminal
activities and various periods of imprisonment, explaining that the Category VI
criminal history “is not out of line for this individual” and noting that “[t]wo and a
half years is about his best run before he gets in trouble again.” We read Jones’s
-5-
arguments on appeal to be that the downward variance was not substantial enough.
When the district court varies downward and imposes a below-Guidelines sentence,
as it did in this case, “it is nearly inconceivable that the court abused its discretion in
not varying downward still further.” United States v. Lazarski, 560 F.3d 731, 733 (8th
Cir. 2009). We do not find the two-month downward variance in this case to be an
abuse of the district court’s discretion.
Finally, Jones has submitted several pro se supplemental filings for
consideration by this panel. In addition to the issues discussed above, Jones argues
in his pro se filings that he should have been permitted to withdraw his guilty plea
because, at the time he entered the plea, his attorney failed to explain the possible
impact of the career criminal enhancement or that Jones could receive a separate 60-
month sentence for the possession of a firearm. Generally, it is Eighth Circuit policy
not to address issues raised by a defendant in pro se filings with this Court when he
is represented by counsel. United States v. Halverson, 973 F.2d 1415, 1417 (8th Cir.
1992) (per curiam). Nevertheless, we have examined his pro se supplemental brief
and other pro se filings, and we find his additional arguments meritless. At the
change-of-plea hearing, the government stated that the possession with intent to
distribute heroin charge carried a maximum sentence of 20 years and that the firearm
possession charge had a range of not less than 5 years and not more than life
imprisonment. The district court specifically asked Jones if he understood those
possible sentences, and Jones answered affirmatively before entering his guilty plea.
Accordingly, Jones has failed to show that his counsel’s performance was deficient,
and the district court did not abuse its discretion in denying Jones’s request to
withdraw his plea. See United States v. Cruz, 643 F.3d 639, 641-42 (8th Cir. 2011).
III.
We affirm Jones’s conviction and sentence.
______________________________
-6-