F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAR 4 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 96-1193
v. (D.C. No. 95-CR-424-S)
(D. Colo.)
KEVIN JONES,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before BRORBY, EBEL and KELLY, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Kevin Jones (Mr. Jones) appeals his sentence entered following his plea of
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
guilty to possession with intent to distribute approximately two grams of cocaine
base, in violation of 21 U.S.C. §§ 841(a)(1) (1994) and 841(b)(1)(C)(iii) (1994).
On appeal, Mr. Jones contends (1) the district court abused its discretion by
refusing to depart downward from a criminal history category of VI by sentencing
him to the maximum sentence within the applicable guideline range, and in
sentencing him consecutively to his undischarged state sentence, and (2) it was
plain error for the district court to enhance his offense level two points for
possession of a firearm.
Initially, Mr. Jones argues the district court erred in failing to depart
downward in setting his criminal history category. In his objections to the
presentence report, Mr. Jones asked the court to consider a downward departure
from a criminal history category of VI on the grounds that his criminal history
was "significantly less serious than that of most defendants in the same criminal
history category." However, "[a] discretionary refusal to depart downward is not
reviewable by this court unless it appears from the record the sentencing court
erroneously believed the Guidelines did not permit a downward departure."
United States v. Nelson, 54 F.3d 1540, 1544 (10th Cir. 1995). "If the record is
ambiguous concerning the district court's awareness of its discretion to depart
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downward, we presume the court was aware of its authority." Id. The record
indicates Mr. Jones asked the court to consider a downward departure or, in the
alternative, to sentence him at the low end of the guideline range, which would
have been approximately equivalent to the midpoint of the applicable guideline
range if Mr. Jones' criminal history category had been V rather than VI. Upon
review of the record, we presume the court knew of its authority to depart
downward; thus we lack jurisdiction to consider this allegation of error.
Mr. Jones also contends the district court abused its discretion in
sentencing him to 96 months imprisonment, the maximum sentence under the
applicable guideline range of 77-96 months. Although he acknowledges "the
Level VI Criminal History Category technically and linguistically applies" to him,
he argues the district court impermissibly relied upon his criminal history by
sentencing him to the maximum applicable sentence. However, unless the
sentencing range exceeds twenty-four months, the district court need not
explicitly state its reasons for imposing sentence at a particular point within the
applicable guideline range. 18 U.S.C. § 3553(c) (1994); United States v. Garcia,
919 F.2d 1478, 1482 (10th Cir. 1990). Therefore, we will not review the reasons
underlying a district court’s decision to impose a sentence at a particular point
within the proper guideline range unless it implicates 18 U.S.C. § 3742(a)(1) or
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(2) as illegal or an improper application of the sentencing guidelines,
respectively. 1 Garcia, 919 F.2d at 1482. Mr. Jones does not contend his sentence
at the high end of the guideline range was in violation of the law or an incorrect
application of the sentencing guidelines. Therefore, we decline to review this
claim.
Next, Mr. Jones asserts the district court abused its discretion in setting his
sentence to run consecutively to his undischarged state sentence. 2 At sentencing,
the district court mistakenly believed Mr. Jones' federal sentence must run
consecutively to his undischarged term in Colorado pursuant to U.S.S.G.
18 U.S.C. § 3742(a) governs a defendant's right to appeal a sentence
1
imposed by a federal court. Garcia, 919 F.2d at 1470. It provides that a
defendant may appeal a sentence only if it:
(1) was imposed in violation of law;
(2) was imposed as a result of an incorrect application of the
sentencing guidelines; or
(3) is greater than the sentence specified in the applicable
guideline range ...; or
(4) was imposed for an offense for which there is no
sentencing guideline ....
18 U.S.C. § 3742(a) (1994). Only subsections (1) and (2) apply to sentences
falling within the guidelines.
On October 30, 1995, Mr. Jones was sentenced to four years in the
2
custody of Colorado Department of Corrections on unrelated drug charges. On
November 5, 1995, he was arrested on the present charges.
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§ 5G1.3(a) (1995). 3 Although § 5G1.3(a) mandates consecutive sentences in this
case, 18 U.S.C. § 3584(a) (1994) provides "the terms may run concurrently or
consecutively." We previously recognized this conflict between the sentencing
guidelines and the statute in United States v. Shewmaker, 936 F.2d 1124 (10th
Cir. 1991), cert. denied, 502 U.S. 1037 (1992). "In Shewmaker, we held that the
guideline is 'reconcilable with 18 U.S.C. § 3584(a) because § 5G1.3 does not
preclude a court from departing from the Guidelines and sentencing
concurrently.'" United States v. Mihaly, 67 F.3d 894, 896 (10th Cir. 1995)
(quoting Shewmaker, 936 F.2d at 1127). Thus, the district court possessed
discretion to sentence Mr. Jones to concurrent sentences and the court's
statements to the contrary were clear error. However, the error was harmless and
no remand for resentencing is necessary, because the court made it clear it did not
believe in "twofers" and would sentence Mr. Jones consecutively in any event.
See United States v. Medina-Estrada, 81 F.3d 981, 987 (10th Cir. 1996) (no
remand necessary when court made it clear at sentencing that sentence would be
the same regardless of the error). The district court stated the state crime "was a
totally separate and distinct criminal incident to the one here involved.... He was
3
U.S.S.G. § 5G1.3(a) provides: "If the instant offense was committed ...
after sentencing for, but before commencing service of, [an undischarged] term of
imprisonment, the sentence for the instant offense shall be imposed to run
consecutively to the undischarged term of imprisonment."
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sentenced for that [state] crime. I see no reason whatsoever that he should be
given a concurrent sentence for that and this." Any other result in this situation
would be a waste of judicial resources.
Finally, Mr. Jones argues the district court erred in enhancing his offense
level for possession of a firearm by two points, pursuant to U.S.S.G.
§ 2D1.1(b)(1). Mr. Jones admits he failed to object to the enhancement in the
district court. Therefore, we review solely for plain error. United States v.
Richardson, 86 F.3d 1537, 1554 (10th Cir.), cert. denied, 117 S. Ct. 588 (1996).
Whether Mr. Jones possessed a firearm within the meaning of § 2D1.1(b)(1) is a
question of fact. See United States v. Earls, 42 F.3d 1321, 1326 (10th Cir. 1994)
(district court’s factual finding defendant possessed a firearm within the meaning
of § 2D1.1(b)(1) not clearly erroneous), cert. denied, 115 S. Ct. 1800 (1995).
"'[f]actual disputes do not rise to the level of plain error.'" Richardson, 86 F.3d at
1554 (quoting United States v. Deninno, 29 F.3d 572, 580 (10th Cir. 1994), cert.
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denied, 115 S. Ct. 1117 (1995)). Therefore, Mr. Jones' argument must fail. 4
AFFIRMED.
Entered for the Court
WADE BRORBY
United States Circuit Judge
4
We note that in his plea agreement, Mr. Jones stipulated the passenger in
the vehicle with him at the time of his arrest had a firearm in his possession
which the passenger placed under the seat of the car when the law enforcement
officers stopped them, and that the officers found a .38 caliber pistol in the trunk
of the vehicle. In addition, Mr. Jones stipulated to the two-level enhancement
pursuant to § 2D1.1(b)(1).
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