United States v. Jones

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-4645

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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