United States v. Jones

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
July 25, 2013
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 12-3261
v.
(D.C. No. 6:11-CR-10131-MLB-1)
(D. Kan.)
JASON JONES, a/k/a Peek-A-Boo,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, GORSUCH, and HOLMES, Circuit Judges.

Defendant-Appellant Jason Jones entered a guilty plea, without a plea

agreement, to being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1). Mr. Jones’s Presentence Investigation Report (“PSR”) noted that his

criminal history included four prior burglary convictions. Three of the

convictions were for burglaries Mr. Jones committed when he was seventeen

years old. Based on these convictions, the PSR stated that Mr. Jones was subject

*
This order and judgment is not binding precedent except under the doctrines
of law of the case, res judicata and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth
Circuit Rule 32.1.
to an enhanced sentence under the Armed Career Criminal Act (the “ACCA”), 18

U.S.C. § 924(e)(1), warranting a base offense level of thirty-three under the

United States Sentencing Guidelines (“the Guidelines” or “U.S.S.G.”) § 4B1.4 1

and a mandatory minimum fifteen-year sentence. Prior to being sentenced, Mr.

Jones lodged multiple objections to the application of the ACCA’s fifteen-year

mandatory minimum to his case, all of which were rejected by the district court

during Mr. Jones’s sentencing hearing. The district court sentenced Mr. Jones to

a term of 180 months’ imprisonment to be followed by a term of five years’

supervised release. On appeal, Mr. Jones raises the same issues he raised before

the district court. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In November 2010, the Bureau of Alcohol, Tobacco, Firearms and

Explosives (“ATF”) began conducting an undercover storefront operation in

Wichita, Kansas. The purpose of the operation “was for undercover ATF agents

to purchase and/or trade controlled substances, firearms, and stolen property from

various individuals in the Wichita, Kansas area.” R., Vol. 2, at 7 (PSR, filed July

24, 2012). On May 7, 2011, Mr. Jones entered the undercover storefront and sold

a Browning 12-gauge shotgun to undercover ATF agents. During the transaction,

Mr. Jones indicated that he had access to other firearms. After the sale, agents

1
In preparing the PSR, the U.S. Probation Office relied on the 2011 edition
of the Guidelines. We do the same.

2
traced the shotgun to its purchaser, who informed the agents that the shotgun had

been stolen from his home during a burglary that occurred on August 12, 2009.

Mr. Jones had previously been convicted of this burglary. Mr. Jones was

subsequently arrested on September 21, 2011.

On May 14, 2012, Mr. Jones pleaded guilty, without a plea agreement, to

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

The PSR revealed that Mr. Jones’s criminal history included four prior burglary

convictions: (1) a 1999 conviction for second degree burglary in Springfield,

Missouri; (2) a 2000 conviction for second degree burglary in Springfield,

Missouri; (3) another 2000 conviction for second degree burglary in Springfield,

Missouri; and (4) a 2009 conviction for burglary in Wichita, Kansas. Based on

these prior convictions, Mr. Jones qualified as an Armed Career Criminal within

the meaning of U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e), warranting a base

offense level of thirty-three under U.S.S.G. § 4B1.4 and a mandatory minimum

fifteen-year sentence.

Mr. Jones’s base offense level was reduced to thirty due to his acceptance

of responsibility. This offense level, combined with Mr. Jones’s criminal history

category of V, resulted in an advisory Guidelines sentencing range of 151 to 188

months’ imprisonment. However, because Mr. Jones was deemed an Armed

Career Criminal subject to 18 U.S.C. § 924(e)’s mandatory fifteen-year minimum

sentence, the PSR determined his Guidelines range to be 180 to 188 months’

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imprisonment.

Prior to being sentenced, Mr. Jones filed a Sentencing Memorandum, along

with numerous supplemental memoranda, in which he raised each of the claims

that are before us on appeal. Mr. Jones urged the district court to disregard the

ACCA and sentence him to a term of sixty-three months’ imprisonment based

solely on the sentencing factors under 18 U.S.C. § 3553(a). The district court

rejected each of Mr. Jones’s objections, and held that Mr. Jones was subject to the

mandatory minimum sentence under the ACCA. Accordingly, on September 24,

2012, the district court sentenced Mr. Jones to a term of 180 months’

imprisonment to be followed by a term of five years’ supervised release. Mr.

Jones timely appealed.

II

Where a defendant “adequately objects to the introduction of a prior

conviction because . . . the defendant was pardoned or has had civil rights

restored, we will review de novo the district court’s legal decision as to the

admissibility of such prior conviction and we will review the court’s underlying

factual findings for clear error.” United States v. Flower, 29 F.3d 530, 536 (10th

Cir. 1994) (applying this standard in the context of 18 U.S.C. § 922(g)).

“We review a sentence enhancement imposed under the ACCA de novo.”

United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012); see United

States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990) (“We will review de novo

4
the trial court’s interpretation and application of the ACCA.”). Whether a

defendant’s “juvenile adjudication qualifies as a violent felony conviction under

the ACCA is a legal question that we review de novo.” United States v.

Washington, 706 F.3d 1215, 1217 (10th Cir. 2012). Similarly, “[w]e review

constitutional challenges to a sentence de novo,” United States v. Angelos, 433

F.3d 738, 754 (10th Cir. 2006), including whether a criminal sentence violates the

Eighth Amendment’s prohibition against cruel and unusual punishment, see

United States v. Yeley-Davis, 632 F.3d 673, 682 (10th Cir. 2011).

We turn first to Mr. Jones’s argument that the restoration of his civil rights

as to his three prior burglary convictions was sufficient to trigger operation of 18

U.S.C. § 921(a)(20), which excludes convictions “for which a person has been

pardoned or has had civil rights restored.” 18 U.S.C. § 921(a)(20). We then turn

to Mr. Jones’s remaining arguments, none of which are successful. Most are

squarely foreclosed by controlling precedent; the rest are otherwise wholly

without merit.

A

Mr. Jones argues that his three prior burglary convictions “should not count

as convictions under § 921(a)(20) because [he] ‘has had civil rights restored’ as to

those convictions.” Aplt. Opening Br. at 10. The ACCA enhances a sentence to a

fifteen-year mandatory minimum for a felon convicted of possession of a firearm

with “three previous convictions . . . for a violent felony or a serious drug

5
offense.” 18 U.S.C. § 924(e)(1). However, “[a]ny conviction . . . for which a

person has been pardoned or has had civil rights restored shall not be considered

a conviction for purposes of this chapter.” Id. § 921(a)(20) (emphasis added).

Mr. Jones was discharged from his sentence for the three Missouri burglary

convictions in 2005, at which time his rights to vote and hold office were

automatically restored under Missouri law. Based on this discharge and

restoration of rights, Mr. Jones argues that his “three burglaries should not count

as convictions under § 921(a)(20) because [he] has had civil rights restored as to

those convictions.” Aplt. Opening Br. at 10 (internal quotation marks omitted).

Mr. Jones concedes that not all of his civil rights were restored upon his

2005 discharge. Notably, his right to sit on a jury was not restored. However,

Mr. Jones argues that the restoration of his rights to vote and hold office were

sufficient to render his three Missouri burglary convictions non-qualifying

predicate convictions under 18 U.S.C. § 921(a)(20).

“[W]e look to the whole of state law, rather than only at a certificate of

restoration of civil rights upon release from parole or imprisonment, in

determining whether a defendant’s civil rights have been restored.” United States

v. Hoyle, 697 F.3d 1158, 1166 (10th Cir. 2012). Under § 921(a)(20), Missouri

law applies. See 18 U.S.C. 921(a)(20) (“What constitutes a conviction of such a

crime shall be determined in accordance with the law of the jurisdiction in which

the proceedings were held.”). The Eighth Circuit, which is arguably the circuit in

6
the best position to decide issues of Missouri law, rejected a claim analogous to

that made by Mr. Jones in United States v. Akens, 602 F.3d 904 (8th Cir. 2010).

Specifically, the Eighth Circuit in Akens held that Missouri’s restoration of the

defendant’s right to vote and hold office was insufficient to qualify as a

restoration of civil rights under § 921(a)(20):

Missouri automatically restores some civil rights, such as voting
(upon release from confinement) and holding office (upon
completion of sentence). See Mo. Rev. Stat. §§ 561.016,
561.026(1), 561.021.2. However, felons may not serve as jurors,
sheriffs, highway patrol officers, state fire investigators or
employees, state lottery licensees or employees, or manage,
conduct or operate bingo games. See Mo. Rev. Stat.
§§ 494.425(4), 540.045(1), 561.026(3), 57.010.1, 43.060.1,
320.210, 313.245, 313.255.6(2), 313.035.1(1); Mo. Const. Art.
III, § 39(a)(3)(e). Moreover, felons face statutory hurdles to
being licensed in many occupations and professions.

Because Missouri withholds substantial civil rights, [the
defendant] has not been restored to sufficient civil rights in order
to invoke section 921(a)(20).

602 F.3d at 908 (emphasis added) (citation omitted) (quoting United States v.

Brown, 408 F.3d 1016, 1017 (8th Cir. 2005)) (internal quotation marks omitted).

Under the reasoning in Akens, the restoration of Mr. Jones’s rights to vote

and hold public office did not sufficiently restore his civil rights in order to

invoke § 921(a)(20). This is consistent with our own case law. Specifically, “we

have held that the rights to vote, serve on a jury, and hold public office, as well

as the right to possess firearms, must all be restored under § 921(a)(20) before a

prior conviction may be excluded on the basis of restoration of civil rights.”

7
Flower, 29 F.3d at 536; see also id. (“The acknowledgment that [the defendant]

has not had restored his right to sit on a jury is an acknowledgment that his civil

rights have not adequately been restored to disqualify the use of those convictions

as predicate convictions for the § 922(g)(1) charge.”); United States v. Maines, 20

F.3d 1102, 1104 (10th Cir. 1994) (holding that “in order for a conviction to fall

outside the scope of § 924(e)(1) enhancement” there must be a restoration of the

following civil rights: (1) the right to vote, (2) the right to seek and hold public

office, (3) the right to serve on a jury, and (4) the right to possess firearms). As

noted, Mr. Jones’s right to serve on a jury was not restored. Thus, consistent with

these holdings, we conclude that Mr. Jones’s civil rights were not sufficiently

restored to invoke § 921(a)(20), and therefore his convictions qualified as

predicate felonies for purposes of applying the provisions of the ACCA.

B

We turn now to Mr. Jones’s remaining arguments. Mr. Jones raises seven

additional challenges to his sentence, all of which were raised before the district

court. Specifically, Mr. Jones asserts the following: (1) his three burglary

convictions were part of a common episode and should not be treated as different

from one another under the ACCA; (2) Missouri law establishing the age of

adulthood at seventeen for criminal law purposes violates the Due Process and

Equal Protection Clauses; (3) a fifteen-year sentence based upon an act committed

by a juvenile constitutes cruel and unusual punishment under the Eighth

8
Amendment; (4) the ACCA unconstitutionally infringes on the district court’s

sentencing power by limiting its authority to apply the sentencing factors under

18 U.S.C. § 3553; (5) a mandatory minimum sentence of fifteen-years’

imprisonment constitutes cruel and unusual punishment because it is grossly

disproportionate; (6) Mr. Jones is entitled to a jury finding as to the elements of

the ACCA under the Fifth and Sixth Amendments; and (7) the ACCA and

inherent charging power violate the separation of powers doctrine. Because we

conclude that these arguments are either squarely foreclosed by controlling

precedent or otherwise patently meritless, we may resolve the remainder of this

appeal in relatively short order.

Mr. Jones first argues that his three burglaries were part of a common

episode and should not be treated as different from one another under the ACCA. 1

We reject this argument. Specifically, our case law makes clear that where, as

here, a defendant burglarizes different businesses on different dates, the

burglaries are committed on “occasions different from one another” for purposes

of applying 18 U.S.C. § 924(e) and the ACCA. Tisdale, 921 F.2d at 1098–99

(finding that three burglaries that occurred on the same night, in the same mall,

and were prosecuted together, constituted three “separate criminal episode[s]” for

purposes of the ACCA); see United States v. Michel, 446 F.3d 1122, 1133–35

1
In order for a defendant to be subject to the fifteen-year mandatory
minimum under the ACCA, he must have three prior convictions of violent felonies
“committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

9
(10th Cir. 2006) (finding three separate criminal episodes even though the

defendant committed all of the offenses in the same night); see also United States

v. Riggs, 302 F. App’x 805, 810 (10th Cir. 2008) (rejecting defendant’s argument

that a “robbery spree” was a single criminal episode under the ACCA where the

second robbery was committed two days after the first robbery (internal quotation

marks omitted)).

Mr. Jones next argues that Missouri’s law establishing the age of adulthood

at age seventeen for criminal law purposes violates the Due Process and Equal

Protection Clauses of the Constitution. As Mr. Jones himself concedes, this

argument is foreclosed by circuit precedent. See United States v. Johnson, 630

F.3d 970, 976 (10th Cir. 2010) (holding that under the definition of conviction in

18 U.S.C. § 921(a)(20), the court must defer to Missouri law’s definition of

juvenile and treat defendant’s convictions at age seventeen as qualifying predicate

felony offenses under the ACCA); see also United States v. Cole-Jackson, 414 F.

App’x 108, 111 (10th Cir. 2011) (“The conclusion in Johnson that the ACCA

embraces prior felony convictions in which the defendant was treated as an adult,

even if the defendant was a juvenile at the time of the commission of the crime, is

binding on this panel and fully resolves [the defendant’s] arguments on appeal.”).

Accordingly, we need not address this argument further.

Mr. Jones similarly concedes that his third argument—that a fifteen-year

sentence based upon an act of juvenile delinquency is cruel and unusual

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punishment under the Eight Amendment—has been “addressed by the Tenth

Circuit and rejected.” Aplt. Opening Br. at 18. The case Mr. Jones cites in

recognition of this proposition—Cole-Jackson—is, in fact, unpublished and

therefore not binding on this panel. See Cole-Jackson, 414 F. App’x at 111

(rejecting a virtually identical Eighth Amendment challenge where the defendant

was sentenced to a fifteen-year mandatory minimum sentence under the ACCA

where the defendant had committed one of the qualifying predicate offenses when

he was a juvenile). That being said, we agree with the panel’s reasoning in Cole-

Jackson and its recognition that “other courts have uniformly rejected the notion

that use of an adult conviction . . . in reaching a sentencing determination

implicates the Eighth Amendment.” Id.; see, e.g., United States v. Graham, 622

F.3d 445, 461–64 (6th Cir. 2010) (holding that mandatory life sentence for

conspiracy to distribute cocaine did not violate the Eighth Amendment even

though one of the defendant’s predicate felony drug convictions was committed

when he was a juvenile); United States v. Jones, 574 F.3d 546, 553 (8th Cir.

2009) (“[T]he Eighth Amendment does not prohibit using an adult conviction

based on juvenile conduct to increase a sentence under the ACCA.”); United

States v. Salahuddin, 509 F.3d 858, 863–64 (7th Cir. 2007) (“[T]he Eighth

Amendment does not prohibit using a conviction based on juvenile conduct to

increase a sentence under the armed career criminal provisions.”). For these

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reasons, we reject Mr. Jones’s argument.

In his next argument, Mr. Jones contends that the ACCA

“unconstitutionally infringe[s] on the [district court’s] sentencing power” by

limiting the court’s authority to apply the sentencing factors under 18 U.S.C.

§ 3553. 2 Aplt. Opening Br. at 18. This argument is unpersuasive. Specifically,

in United States v. Hatch, 925 F.2d 362 (10th Cir. 1991), we rejected the

argument that a mandatory minimum sentence violated the defendant’s

constitutional rights by removing the judge’s sentencing discretion. See 925 F.2d

at 363. As we noted in Hatch, “[t]he Supreme Court has clearly indicated that a

mandatory minimum sentence which dictates the precise weight a particular factor

must be given is not unconstitutional.” Id.; see also Riggs, 302 F. App’x at 812

(applying the reasoning from Hatch to a mandatory minimum sentence imposed

under § 924(e)).

Moreover, contrary to Mr. Jones’s suggestions, there is no conflict between

18 U.S.C. § 3553(a) and 18 U.S.C. § 924(e)’s mandatory minimum. Section

3553(a) must be viewed in light of another provision of the statute, § 3553(e).

2
To the extent that Mr. Jones argues he is entitled to an individualized
sentence, we disagree. Our case law makes clear that “there is no constitutional right to
an individualized sentence.” Straley v. Utah Bd. of Pardons, 582 F.3d 1208, 1213 (10th
Cir. 2009); United States v. Horn, 946 F.2d 738, 746 (10th Cir. 1991) (“We have rejected
the notion that a defendant has a due process right to a discretionary, individualized
sentence in a noncapital case . . . .”).

12
That provision tacitly recognizes the generally binding operation of mandatory

minimum sentencing schemes, such as found in § 924(e), by electing to provide

limited power to district courts to sentence below mandatory minimums only “so

as to reflect a defendant’s substantial assistance in the investigation or

prosecution of another person who has committed an offense.” 18 U.S.C.

§ 3553(e); see United States v. A.B., 529 F.3d 1275, 1281–82 (10th Cir. 2008)

(agreeing that the district court’s authority to reduce a mandatory minimum

sentence was limited to consideration of substantial assistance factors under

§ 3553(e) and that the district court was not permitted to “reduce the sentence

further based on factors, other than assistance, set forth in 18 U.S.C. § 3553(a)”

(quoting United States v. Williams, 474 F.3d 1130, 1130 (8th Cir. 2007)) (internal

quotation marks omitted)); United States v. Huskey, 502 F.3d 1196, 1200 (10th

Cir. 2007) (rejecting claim that § 3553(a) conflicted with statute imposing

mandatory minimum sentence because “[s]ection 3553(a) simply does not apply

to mandatory sentences”).

Finally, we reject Mr. Jones’s implication that the Supreme Court’s

decision in United States v. Booker, 543 U.S. 220 (2005), confers discretion upon

a district court to disregard either § 3553(e) or the ACCA’s mandatory minimum.

As we have previously made clear, Booker does not affect statutory mandatory

minimum sentences. See A.B., 529 F.3d at 1281–83 (agreeing that Booker does

13
not expand the authority of the district court to sentence a defendant below a

statutory minimum). For these reasons, we reject Mr. Jones’s argument.

Mr. Jones next argues that his mandatory minimum sentence of fifteen-

years’ imprisonment is “unjust and cruel” because it is grossly disproportionate to

his crime and criminal history. Aplt. Opening Br. at 24–25. We have

consistently held that sentences such as Mr. Jones’s do not violate the Eighth

Amendment, and accordingly we reject this argument. See Angelos, 433 F.3d at

750–53 (rejecting Eighth Amendment challenge to a mandatory sentence under 18

U.S.C. § 924(c) of fifty-five years for drug and firearm offenses where the

defendant had no significant adult criminal history); see also United States v.

James, 303 F. App’x 632, 639–40 (10th Cir. 2008) (applying a proportionality

analysis and concluding that a fifteen-year sentence imposed under the ACCA

was not disproportionate given that the defendant was caught with a firearm and

had three prior burglary convictions).

Mr. Jones concedes that his sixth argument—that he was entitled to jury

findings as to the elements of the ACCA under the Fifth and Sixth

Amendments—is foreclosed by our precedent and Supreme Court case law

regarding prior convictions in the sentencing context. See, e.g., United States v.

Harris, 447 F.3d 1300, 1303 (10th Cir. 2006) (“Applying [the Supreme Court’s

decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Booker], we have

14
recently held that all three elements of the ACCA are properly assessed by the

sentencing court.”); see also Booker, 543 U.S. at 244 (“Any fact (other than a

prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict

must be admitted by the defendant or proved to a jury beyond a reasonable

doubt.” (emphasis added)); United States v. Apperson, 441 F.3d 1162, 1213 (10th

Cir. 2006) (“[T]he Supreme Court has consistently held, and recently reaffirmed

in Booker, that a prior felony conviction is a sentencing factor and thus does not

need to be pled in the indictment or be decided by a jury.”). Accordingly, we

need not consider this issue further.

In his final argument, Mr. Jones contends that the ACCA and inherent

charging power violate the separation of powers doctrine. Mr. Jones’s argument

is entirely unpersuasive. As the government points out: “[A]pplication of the

ACCA is mandatory, irrespective of whether the prosecutor seeks its application.

The statute does not provide either the government or a district court with any

discretion to avoid its application.” Aplee. Br. at 29. Moreover, Mr. Jones’s

argument is foreclosed by precedent. See, e.g., United States v. Gurule, 461 F.3d

1238, 1246 (10th Cir. 2006) (“Congress has the power . . . to determine

punishments, and in the exercise of that power Congress may choose to give the

judicial branch no sentencing discretion whatsoever.”); United States v. Johnson,

15
973 F.2d 857, 860 (10th Cir. 1992) (holding that § 924(e)(1) “does not require

government action to trigger its application nor does it vest discretion in the

sentencing court not to apply its mandate”); see also United States v. Nolan, 342

F. App’x 368, 371 (10th Cir. 2009) (holding that “[t]he court’s application of the

mandatory fifteen-year sentence prescribed by Congress [under the ACCA] did

not violate the ‘separation of powers’ doctrine” and recognizing that “[a] federal

court does not violate the ‘separation of powers’ doctrine by implementing a

mandatory sentence imposed by Congress”). Accordingly, this argument also

fails.

III

For the foregoing reasons, we affirm the judgment of the district court.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

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