UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4645
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SYLVESTER D. JONES, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:06-cr-00036-F-2)
Submitted: August 27, 2009 Decided: September 11, 2009
Before MICHAEL, MOTZ, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
J. Michael McGuinness, THE MCGUINNESS LAW FIRM, Elizabethtown,
North Carolina, for Appellant. Anne Margaret Hayes, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sylvester D. Jones, Jr., was charged in 2007 with:
(1) attempting to kill a witness, by discharging a firearm with
the intent to prevent said witness from testifying in an
official proceeding (“Count Six”); (2) attempting to kill a
witness, by discharging a firearm with the intent to prevent the
witness from communicating to a federal judge information
relating to the commission of federal offenses (“Count Seven”);
(3) knowingly using physical force against a person with the
intention of preventing their testimony in an official
proceeding, all in violation of 18 U.S.C. §§ 1512(a)(1)(A) and
(2) (2006) (“Count Eight”); and (4) use of a firearm during and
in relation to crimes of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and (2) (“Count Nine”).
Jones initially pled not guilty to all charges and
proceeded to a jury trial. During the second day of the trial,
Jones decided to plead guilty to Count Nine, and the Government
agreed to dismiss Counts Six, Seven, and Eight pursuant to a
plea agreement. Pursuant to § 924(c) and the advisory
sentencing guidelines, Jones faced a guidelines sentence of ten
years’ imprisonment.
The Government filed a motion for upward departure
based upon: (1) physical injury, pursuant to U.S. Sentencing
Guidelines Manual (“USSG”) § 5K2.2; (2) extreme psychological
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injury, pursuant to USSG § 5K2.3; (3) criminal purpose, pursuant
to USSG § 5K2.9; and (4) dismissed and uncharged conduct,
pursuant to USSG § 5K2.21. The Government sought a sentence of
255 months’ imprisonment. The district court granted the motion
for upward departure, found that the facts of the case justified
a greater departure than the Government requested, and sentenced
Jones to 300 months’ imprisonment. The court found that the
following factors were not taken into adequate consideration by
the guidelines: (1) the intentionally inflicted, severe physical
injuries suffered by one of Jones’s victims; (2) the damage to
the victims’ personal property; (3) the criminal purpose of
concealing the commission of another offense or retribution
against a potential witness that was behind Jones’s actions;
(4) the premeditated nature of the crime; (5) the fact that the
crime was carried out for money; (6) the dismissal of Counts
Six, Seven, and Eight pursuant to the plea agreement; and
(7) Jones’s reckless endangerment of others and obstruction of
justice during his flight from the crime scene. The court found
that the guidelines sentence of 120 months did not adequately
take into consideration the extent and seriousness of Jones’s
conduct.
Jones’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that in his
view, there are no meritorious issues for appeal. Counsel,
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however, asks this court to review the validity of Jones’s
guilty plea, the reasonableness of his sentence, and whether
ineffective assistance of counsel appears conclusively on the
face of the record. Jones filed a pro se supplemental brief in
which he argues that the district court erred in granting the
Government’s motion for upward departure, as well as conclusory
arguments regarding his conviction. The Government has not
filed a brief.
Under Rule 11(b)(1), the district court must address
the defendant in open court and inform him of the following: the
nature of the charge; any mandatory minimum sentence and the
maximum possible sentence; the applicability of the Sentencing
Guidelines; the court’s obligation to impose a special
assessment; the defendant’s right to an attorney; his right to
plead not guilty and be tried by a jury with the assistance of
counsel; his right to confront and cross-examine witnesses; his
right against self-incrimination; and his right to testify,
present evidence, and compel the attendance of witnesses. The
defendant also must be told that a guilty plea waives any
further trial and that his answers at the proceeding may be used
against him in a prosecution for perjury. Under Rule 11(b)(2),
the court must address the defendant to determine that the plea
is voluntary. The court must require disclosure of any plea
agreement under Rule 11(c)(2) and determine a factual basis for
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the plea under Rule 11(b)(3). The record reflects that the
district court conducted the plea colloquy in compliance with
Rule 11, and that Jones’s guilty plea was knowing and voluntary.
We review departure sentences, “whether inside, just
outside, or significantly outside the Guidelines range” under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 591 (2007); United States v. Evans, 526
F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008).
A district court “may reject a sentence within the advisory
Guidelines range because ‘the case at hand falls outside the
“heartland”’ to which the individual Guidelines apply or because
a sentence within the Guidelines fails to reflect the other
§ 3553(a) factors or ‘because the case warrants a different
sentence regardless.’” Evans, 526 F.3d at 161 (quoting Rita v.
United States, 127 S. Ct. 2456, 2465 (2007)). The district
court is obligated to state in open court the particular reasons
supporting its chosen sentence, 18 U.S.C. § 3553(c) (2006), and
to “make an individualized assessment based on the facts
presented.” Gall, 128 S. Ct. at 597.
Jones’s sentence is reasonable. The parties do not
dispute that the district court properly calculated Jones’s
guidelines range. However, as the district court stated on the
record, the guidelines calculation did not take into account
many aspects of Jones’s offense conduct, including the extensive
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injuries he inflicted, the financial and criminal motivation for
his actions, and the overall extreme nature of his conduct. The
district court adequately stated its reasons for the sentence
and did not abuse its discretion.
This court may address on direct appeal a claim that
counsel was ineffective only if the ineffectiveness appears
conclusively on the face of the record. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). There is no
evidence on the face of the record that Jones’s counsel was
ineffective. Accordingly, we decline to address this claim.
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny
Jones’s motion to relieve counsel. This court requires that
counsel inform Jones, in writing, of the right to petition the
Supreme Court of the United States for further review. If Jones
requests that a petition be filed, but counsel believes that
such a petition would be frivolous, then counsel may move in
this court for leave to withdraw from representation. Counsel’s
motion must state that a copy thereof was served on Jones.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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