United States v. Jones

FILED
United States Court of Appeals
Tenth Circuit

November 7, 2007
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
Nos. 05-1329 & 06-1105
v. D. Colo.
ROBERT JEROME JONES, (D.C. No. 03-CR-493-WM)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before MURPHY, ANDERSON, and O’BRIEN, Circuit Judges.

After an altercation with two prison guards at the federal prison in

Florence, Colorado, Robert Jerome Jones was indicted on two counts of assault

resulting in bodily injury in violation of 18 U.S.C. § 111(a)1 & (b). 1 A jury

*
This order and judgment is not binding precedent except under the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 Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

1
Section 111 states in relevant part:

(a) In general.--Whoever--

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes
with any person designated in section 1114 of this title while engaged in
returned a verdict of guilty on one count of assault causing bodily injury

(§ 111(b)) and one count of the lesser included offense, assault which did not

cause bodily injury (§ 111(a)). On July 1, 2005, Jones was sentenced on both

counts to a total of thirty-six months imprisonment which were to run consecutive

to the sentence he was serving at the time of the altercation. He appeals alleging

error in the trial court’s denial of his motion to dismiss the charges, two

instructions to the jury, the sufficiency of the evidence, the district court’s denial

of his second motion for a new trial and, finally, the reasonableness of the

sentence imposed. We AFFIRM.

I. BACKGROUND

To a point in time, the facts are uncontested. 2 Robert Jones was an inmate

or on account of the performance of official duties;
...

shall, where the acts in violation of this section constitute only simple
assault, be fined under this title or imprisoned not more than one year, or
both, and in all other cases, be fined under this title or imprisoned not
more than 8 years, or both.

(b) Enhanced penalty.--Whoever, in the commission of any acts
described in subsection (a), uses a deadly or dangerous weapon (including
a weapon intended to cause death or danger but that fails to do so by
reason of a defective component) or inflicts bodily injury, shall be fined
under this title or imprisoned not more than 20 years, or both.

18 U.S.C. § 111 (2002).
2
Appellant’s Opening Brief and Supplemental Opening brief fail to
contain appropriate references to the record. See Fed. R. App. P. 28(a)(7), (e).
His brief was not helpful in parsing the record.

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at the Bureau of Prison’s Administrative Maximum (ADX) facility in Florence,

Colorado. He was serving a 260-month sentence imposed after he pled guilty to

second degree murder, use of a firearm in commission of a crime of violence and

perjury. On July 15, 2003, Jones was scheduled to be examined by medical

personnel at the prison. Officers Brian Eichers and Ronald Stevens were sent to

Jones’s cell to escort him to his appointment. Eichers was the unit officer in

charge and Stevens was the baton-coverage officer providing protection to the

officer in charge. The escort procedure required Eichers to search Jones, apply

restraints (including handcuffs) and move him while maintaining contact with the

chain between the handcuffs. Normally, an inmate’s hands would be handcuffed

behind him, but the medical staff had requested Jones’s hands be restrained in

front to facilitate the medical procedures. Officer Eichers, 5' 5" tall and 140

pounds, front-cuffed Jones, 5'10" tall and 180 pounds, and led Jones out of the

cell.

Subsequent events are the subject of contradicting testimony. Eichers

testified that before securing Jones with a belly chain around his waist as

required, he could feel Jones staring into his eyes and noticed Jones appeared

“angry and agitated.” (R. Vol. XI at 45.) Stevens testified Jones was looking at

Eichers with a “dead, cold stare” he had not seen between inmates and staff

before. (R. Vol. XIII at 500.) However, when Stevens had observed such a stare

between inmates, it meant “[t]hey’re going to fight, in most cases.” (Id. at 502.)

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 Eichers testified he asked Jones what was wrong, to which Jones gave no

reply. When Eichers repeated the question, Jones stated, “You guys got the

f*****g problem.” (R. Vol. XI at 45.) Eichers determined Jones was too agitated

to be moved and decided to terminate the escort. He told Jones to return to his

cell. Jones did not respond. Eichers repeated the order two more times to which

Jones replied he was not returning to his cell. Jones then stepped back and

Eichers attempted to place his hand on Jones’s shoulder to physically “turn him

and walk him back in[to]” the cell while continuing his hold on the handcuffs’

chain. (Id. at 54.) At this point, Jones began to wrench the handcuffs together,

placing sufficient pressure to cause a “pretty good cut on [Eichers’s] left thumb.”

(Id. at 56.) Jones continued to wrench the handcuffs and then pulled his hands

towards his chest and above his head in an attempt to break away from Eichers.

Eichers tried to move Jones against the wall to regain control. At this point,

Stevens entered the fray to assist Eichers in subduing Jones. Stevens tried to use

his baton to help pin Jones against the wall, but Jones grabbed it and the two

struggled for the baton. During one point in the struggle, Jones was in a sitting

position on the floor with Eichers on his back. Nonetheless, Jones stood up.

Stevens was able to regain control of the baton and struck Jones several times “as

hard as [he] could” but Jones did not react. (R. Vol. XIII at 514.) Jones again

grabbed the baton and Eichers eventually brought him to the floor and got Jones

in a headlock. Stevens and Jones were still struggling for the baton with Stevens

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“kind of leaned back up against the wall and kind of on top of Officer Eichers.”

(Id. at 521.). Jones kicked at Stevens twice, once hitting him in the chest and

narrowly missing his head.

Officer Todd Lillard, who was working in the control center, observed

Jones exit the cell with an aggressive stance and an agitated facial expression.

Based on this observation, Lillard turned on the intercom and heard Eichers tell

Jones to step back into his cell. He saw Jones abruptly pull back from Eichers

and when the melee began, he activated an alarm to call staff to assist the

officers. Several officers responded and eventually secured Jones.

In contrast, Jones testified the officers provoked his reaction. He stated

when Eichers and Stevens arrived at his cell, he was in an aroused state from

writing a sexually explicit letter to a female. Jones maintained Eichers strip-

searched him which caused Jones embarrassment. Jones stated Eichers asked him

why he “was looking at him real hard for.” (Id. at 711.) Eichers then asked Jones

three times whether Jones thought it was funny that Eichers saw him in that

condition. Jones testified he answered “no” and then laughed at Eichers. (Id.)

At that point, Eichers grabbed him and the struggle ensued when Jones tried to

pull away. According to Jones, when he saw Stevens coming at him with the

baton, he reacted to protect himself. Jones denied trying to twist his handcuffs

and stated he was not trying to take the baton from Stevens. He testified he was

not trying to hurt Stevens when he kicked out but was merely trying to get

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Eichers to let him go.

Jones and the officers were taken to the medical unit for examination.

Paramedic Michael Carr examined Jones and applied a steri-strip band-aid to an

inch long cut on Jones’s left elbow and noted minor scrapes to a finger, a wrist

and his middle back. Physician Assistant Anthony Osagie examined Eichers and

Stevens. Eichers was treated for an injury to his left thumb and Osagie noted

multiple minor scrapes on Stevens. Osagie also took Stevens’s vital signs

because Stevens was in a terrified emotional state.

The struggle was captured by a camera located at the end of the hall near

Jones’s cell. There is no audio component and the videotape is not of high

quality. It is difficult to discern the participants’ detailed movements and Jones

has his back to the camera prior to the fight. Consequently, the tape’s value is

limited.

Jones was charged with two counts of assault on a federal officer resulting

in bodily injury in violation of 18 U.S.C. § 111(b). Prior to trial, Jones filed a

motion to dismiss the indictment alleging the government violated the Interstate

Agreement on Detainers Act (IADA or the Act). He claimed the violation

occurred when he was transferred back to Florence after being housed in federal

facilities in Denver, Colorado. The court heard arguments at the pretrial

conference and denied the motion on the first day of trial.

The jury convicted Jones of an assault on Stevens resulting in bodily injury.

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The jury also found him guilty of the lesser included offense of assault with

physical contact on Eichers. Jones filed two motions for a new trial. The district

court denied the first motion, while the second motion remained pending. The

court sentenced Jones to a total of thirty-six months, consecutive to the 260-

month sentence he was serving at the time of the assaults. Jones appealed

(Appeal No. 05-1329). We granted a limited remand to allow the district court to

consider Jones’s second motion for a new trial. After the court denied that

motion, Jones filed a second appeal (Appeal No. 06-1105) from that ruling. We

consolidated the appeals.

II. DISCUSSION

Jones raises several issues. Regarding pre-trial matters, Jones argues the

trial court erred in denying his motion to dismiss the indictment. He claims the

government was estopped from arguing the IADA did not apply. His alleged trial

errors include a challenge to two jury instructions (instructions on self-defense

and the use of prior felony convictions) and insufficient evidence to support his

conviction. Finally, Jones sets forth two post-trial complaints: (1) the court’s

sentence lacks adequate explanation and is procedurally and substantively

unreasonable and (2) the trial court wrongly denied his second motion for a new

trial.

A. Pre-trial Error

The IADA is a compact “among 48 states, the United States and the District

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of Columbia.” United States v. Coffman, 905 F.2d 330, 331 (10th Cir. 1990). It

provides procedures by which one correctional jurisdiction (such as Colorado

state court) with charges pending against a prisoner housed in another

correctional jurisdiction (for example, New Mexico state court) can arrange for

transfer of the prisoner. 18 U.S.C. App. 2, § 2, Art. IV. Its purpose is to afford

the prisoner a speedy trial on pending charges. 18 U.S.C. App. 2, § 2, Art. I. The

IADA has a provision prohibiting the transfer of a prisoner back to the original

jurisdiction prior to trial, i.e. the anti-shuffling provision. If such transfer occurs,

the “indictment, information, or complaint shall not be of any further force or

effect, and the court shall enter an order dismissing the same with prejudice.” 18

U.S.C. App. 2, § 2, Art. IV(e).

After Jones was initially indicted, the United States Marshal’s Service

lodged a detainer with the Florence facility, a copy of which was sent to Jones. It

contained instructions for securing his right to a speedy trial under the IADA.

Jones complied with these instructions and government officials processed the

request as if the Act applied. However, after he made his request, the government

filed a petition for a writ of habeas corpus ad prosequendum to bring Jones to

Denver, where he made his initial appearance on January 22, 2004. While the

case was pending, Jones was transferred back to the Florence facility. As a result,

Jones filed a motion to dismiss his case claiming his transfer back to Florence

prior to trial violated the Act’s anti-shuffling provisions.

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 Jones concedes the IADA considers the federal correctional system a single

jurisdiction and, under normal circumstances, it would not apply to Jones’s case.

See United States v. Walling, 974 F.2d 140, 141 (10th Cir. 1992) (For the

purposes of the IADA, the federal government “is considered a single state.”).

Nonetheless, because the government treated his case as if the IADA applied, it is

estopped by its actions and may not argue otherwise. The district court disagreed,

stating the Act “speaks for itself and is reasonably plain that its applicability does

not attach in these facts, regardless of what the Bureau of Prisons or the U.S.

Attorney[’s] office may conclude.” (R. Vol. XI at 9.) We agree.

Jones cites to Double J. Land & Cattle Co. v. United States Dep’t of

Interior (Double J), for the proposition that the doctrine of estoppel against the

government has vitality and is applicable here. 91 F.3d 1378, 1381 (10th Cir.

1996). [Appellant’s Opening Br. at 15-16] However, Jones fails to address two

basic requirements for estoppel against the government to apply. Because

“[e]stoppel against the government is disfavored,” we will not apply the estoppel

doctrine against the government if doing so would “[1]‘frustrate the purpose of

the statutes expressing the will of Congress or [2] unduly undermine the

enforcement of the public laws.’” Id. at 1381 (quoting Fed. Deposit Ins. Corp. v.

Hulsey, 22 F.3d 1472, 1489 (10th Cir. 1994)). As in Double J, the estoppel

requested in this case falls within both of these exceptions.

The IADA clearly states a Congressional intent that it not apply to transfers

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between federal facilities. 18 U.S.C. App. 2, § 2, Art. II(a). Its application here

would undermine the enforcement of public laws by having a defendant’s criminal

charges declared null and void. And, since Jones does not argue how he was

prejudiced by his transfer or that it impeded the prosecution of his case, his

attempt to procedurally extricate himself from a criminal indictment is

particularly unavailing. The court did not err in denying Jones’s motion to

dismiss.

B. Trial Errors

1. Jury Instructions

“We review a district court’s decision to give a particular jury instruction

for an abuse of discretion and consider the instructions as a whole de novo to

determine whether they accurately informed the jury of the governing law.”

United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.) (quotations omitted),

cert. denied, 127 S.Ct. 2928 (2007). “We reverse only if we have a substantial

doubt the jury instructions properly guided the jury in its deliberations and we

find prejudice.” United States v. Haslip, 160 F.3d 649, 654 (10th Cir. 1998).

a. Self-Defense Instruction

Jones asserts the court erred in instructing the jury on his affirmative

defense of self-defense. Instruction No. 23 stated:

Defendant asserts that the acts for which he is charged in counts 1
and 2 of the indictment were taken in self-defense against the
excessive use of force by a corrections officer.

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 An inmate has the right to self-defense against use of excessive
force by a corrections officer when that excessive force causes or
threatens to cause serious bodily injury to the inmate. A corrections
officer may use that amount of force reasonably necessary under the
circumstances to compel an inmate to comply with the officer’s
lawful orders. Use of greater force than reasonably necessary under
the circumstances is excessive and entitles the inmate to use
reasonable force to defend himself against such excessive force, but
the inmate may not use more force than is reasonably necessary to
defend himself.
Remembering that the burden of proof beyond a reasonable doubt
remains at all times on the government, you must find beyond a
reasonable doubt that the government has satisfied its burden of
proving that defendant did not act in self-defense against excessive
force. Therefore, if you have a reasonable doubt whether or not
defendant acted in self-defense, your verdict must be not guilty.

(R. Vol. I, Doc. 171, Instruction 23 (emphasis added).) Jones objected at trial to

the requirement that the officer’s force must threaten to cause serious bodily

injury. 3 He maintains the “unlawful or excessive use of force by prison guards

gives the prisoner the right to resist that force consistent with ordinary rules of

self-defense.” (Appellant’s Br. at 9.) In other words, he claims he could respond

with reasonable force if he believed it was necessary “to repel any excessive force

used by federal law enforcement officers.” United States v. Span, 970 F.2d 573,

578 (9th Cir. 1992) (Span I) (emphasis added).

3
On appeal, he also argues the instruction erroneously precludes acquittal
should the jury believe Jones reasonably believed excessive force was being used.
Finally, Jones contends the explanation of excessive force renders the instruction
internally inconsistent. Neither of these objections were presented to the trial
court and Jones does not argue the trial court’s instruction was plain error.
Further, Jones approved another instruction containing these same flaws. Thus,
pursuant to Fed. R. Crim. P. 30(d), these arguments will not be considered.

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 We have not had occasion to address the application of self-defense to a

charge under 18 U.S.C. § 111 involving a fight between guards and a prisoner, let

alone the parameters of such a defense. As an initial observation, we note the

statute does not supply an affirmative defense. As the Supreme Court has stated,

“it is an open question whether federal courts ever have authority to recognize a

[common law] defense not provided by statute.” United States v. Oakland

Cannabis Buyers’ Coop., 532 U.S. 483, 491 (2001) (addressing whether a

necessity defense inferred in Controlled Substances Act). “Whether, as a policy

matter, an exemption should be created is a question for legislative judgment, not

judicial inference.” Id. (quoting United States v. Rutherford, 442 U.S. 544, 559

(1979)). Nonetheless, both the Supreme Court and this Court have discussed the

possibility of self-defense as justification for a charge under § 111, presumably

because “Congress legislates against a background of Anglo-Saxon common law.”

Id. at n.3 (quoting United States v. Bailey, 444 U.S. 394, 415 n.11 (1980)).

For instance, in United States v. Feola, the Supreme Court concluded § 111

did not require knowledge that the victim of the assault was a federal officer as an

element of the crime. 420 U.S. 671, 684 (1975). Even so, the Court stated that

the defendant’s knowledge of the identity of the victim may play a part “where an

officer fails to identify himself or his purpose [and] his conduct . . . might

reasonably be interpreted as the unlawful use of force directed either at the

defendant or his property.” Id. at 686. “In a situation of that kind, one might be

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justified in exerting an element of resistance, and an honest mistake of fact would

not be consistent with criminal intent.” Id.

We have referred to self-defense as an affirmative defense to a § 111

charge in two cases. In United States v. Williams, we determined sufficient

evidence was presented to uphold the defendant’s conviction for a violation of

§ 111, despite his claim of self-defense. 440 F.2d 1300, 1302 (10th Cir. 1971).

In United States v. Montoya, we observed “[a] defendant who assaults a federal

law officer, unaware of the latter’s status and reasonably believing himself to be

acting in a protective posture, may be entitled to a self defense instruction.” 676

F.2d 428, 431 (10th Cir. 1982). However neither Montoya nor Williams were

asked to consider whether the statute “might be unable to bear any necessity

defense at all.” Oakland Cannabis Buyers’ Coop., 532 U.S. at 491 n.3. And the

argument is not raised here. Therefore, we merely assume without deciding that

such a defense exists. See United States v. Patton, 451 F.3d 615, 637 (10th Cir.

2006) (assuming a necessity defense applies to a felon in possession of body

armor).

Assuming the defense exists, we must decide the parameters of that

defense, in particular whether ordinary rules of self-defense apply to a charge of

assault on a federal officer within the prison environment. This is a matter of

first impression. We begin by examining the Congressional purpose in passing 18

U.S.C. § 111 and the contours of the common law. We then apply that discussion

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to the specific circumstances of this offense – the location of the assault (prison)

and the identity of the participants (inmate and guards). In the end, we conclude

Jones, a prisoner, does not have the right to respond with force to any force he

believes is excessive.

In passing 18 U.S.C. § 111, Congress intended to accomplish dual

purposes; “to protect both federal officers and federal functions.” Feola, 420 at

679. “[I]ndeed, furtherance of the one policy advances the other.” Id. “Congress

clearly was concerned with the safety of federal officers insofar as it was tied to

the efficacy of law enforcement activities.” Id. at 681.

Generally, under the common law, a claim of self-defense as justification

for the commission of a crime was described as follows:

Another species of compulsion or necessity is what our law calls
duress per minas (by threats); or threats or menaces, which induce a
fear of death or other bodily harm, and which take away for that
reason the guilt of many crimes and misdemeanors; at least before
the human tribunal. But then that fear, which compels a man to do
an unwarrantable action, ought to be just and well-grounded; such . .
. as might seize a courageous man not timid or fearful . . . .

W ILLIAM B LACKSTONE , 2 C OMMENTARIES *30 (quotations omitted). In other

words, “one who is unlawfully attacked by another, and who has no opportunity

to resort to the law for his defense, should be able to take reasonable steps to

defend himself from physical harm.” 2 W AYNE R. L A F AVE , S UBSTANTIVE C RIM .

L AW , § 10.4(a) at 143 (2d ed. 2003). However, self-defense is only available

when “the adversary’s force be, or at least that the defendant reasonably believes

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it to be, ‘unlawful’ force – meaning, in general, that it be a crime or tort

(generally assault and battery) for the adversary to use the force.” Id. at 144.

The common law does not specifically address a prisoner’s claim of self-defense

against prison guards.

Jones recognizes his defense is available only in response to “excessive

force” by the prison officials, but insists the defense is viable when there is a

reasonable fear of any bodily injury, not serious bodily injury. Thus, we look to

the contours of “excessive force” for the proper elements for Jones’s affirmative

defense. Jones would have us adopt his reading of the Ninth Circuit’s position

under (Span I), 970 F.2d 573, and United States v. Span, 75 F.3d 1383 (9th Cir.

1996) (Span II). He claims these cases stand for the proposition that the ordinary

rules of self-defense apply to resistance to the unlawful or excessive use of force

by prison guards. He is incorrect on several levels.

First, in Span I and Span II two federal agents were involved in a physical

conflict with Jerry and Darlene Span while investigating the location of a

fugitive. Thus, the case did not concern excessive force in a prison setting

(Eighth Amendment – cruel and unusual punishment) but excessive force outside

the prison setting (Fourth Amendment – reasonable search and seizure), 4 Span I,

970 F.2d at 577 n.3. (citing Graham v. Connor, 490 U.S. 386, 394-96 (1989)).

4
We express no opinion here on the appropriate self-defense instructions
in a non-prison setting.

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 Second, the Ninth Circuit specifically recognized a distinction between a

general self-defense instruction and an instruction on self-defense in the context

of excessive force. Id. at 578 n.5 (“The elements of a general right of

self-defense do overlap with those of a more narrowly-defined right of

self-defense against excessive force, but they also differ in important ways.”).

Indeed, the court based its conclusion that the Spans’ claims failed because, inter

alia, “the general self-defense instruction offered by the Spans does not amount to

a proposed instruction on the right to offer reasonable resistance to repel any

excessive force used by federal law enforcement officers.” Id. at 578. Span II

merely determined trial counsel was ineffective because he had failed to offer the

proper instruction, again noting the distinction between a general self-defense

claim and an excessive force claim. Span II, 75 F.3d 1388-90. As a result,

neither Span I nor Span II is applicable to the circumstances of this case. 5

In a prison setting, the use of excessive force against a prisoner is analyzed

5
Jones’s reliance on United States v. Loman, fails for the same reasons.
551 F.2d 164 (7th Cir. 1977). There, a postal worker was involved in an
altercation with residents on her route. The court determined an instruction
informing “the jury that Hilda Loman had a right to defend herself against any
unlawful attack but that if she acted in self-defense, excessive force was not
permissible” adequately apprised the jury of the law of self-defense. Id. at 168.
What Jones fails to recognize is that a proper instruction on self-defense does not
arise solely from the general charge, a violation of § 111, but from the specific
circumstances in which the offense occurred.

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under the Eighth Amendment prohibiting “cruel and unusual” punishment. 6 See

Whitley v. Albers, 475 U.S. 312, 319-20 (1986). “The infliction of pain in the

course of a prison security measure . . . does not amount to cruel and unusual

punishment simply because it may appear in retrospect that the degree of force

authorized or applied for security purposes was unreasonable, and hence

unnecessary in the strict sense.” Id. at 319. Rather, “[i]t is obduracy and

wantonness, not inadvertence or error in good faith, that characterize the conduct

prohibited by the Cruel and Unusual Punishments Clause, whether that conduct

occurs in connection with establishing conditions of confinement, supplying

medical needs, or restoring official control over a tumultuous cellblock.” Id.

The distinct excessive force analysis in a prison environment is based on a

consideration of both a prisoner’s legal status and the unique interests of a penal

institution. While “convicted prisoners do not forfeit all constitutional

protections by reason of their conviction and confinement in prison,” this “does

not mean that these rights are not subject to restrictions and limitations.” Bell v.

Wolfish, 441 U.S. 520, 545 (1979).

Lawful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system. The fact of confinement

6
The Eighth Amendment states: “Excessive bail shall not be required, nor
excessive fines imposed, nor cruel and unusual punishments inflicted.” It applies
“only after the State has complied with the constitutional guarantees traditionally
associated with criminal prosecutions.” Ingraham v. Wright, 430 U.S. 651, 671
n.40 (1977).

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 as well as the legitimate goals and policies of the penal institution
limits these retained constitutional rights. There must be a mutual
accommodation between institutional needs and objectives and the
provisions of the Constitution that are of general application.

Id. at 545-46 (quotations and citations omitted). “Maintaining institutional

security and preserving internal order and discipline are essential goals” and

“[p]rison officials must be free to take appropriate action to ensure the safety of

inmates and corrections personnel . . . .” Id. at 546-47.

Countless opinions have recognized the dangers inherent in the prison

environment.

Prisons, by definition, are places of involuntary confinement of
persons who have a demonstrated proclivity for antisocial criminal,
and often violent, conduct. Inmates have necessarily shown a lapse
in ability to control and conform their behavior to the legitimate
standards of society by the normal impulses of self-restraint; they
have shown an inability to regulate their conduct in a way that
reflects either a respect for law or an appreciation of the rights of
others.

Hudson v. Palmer, 468 U.S. 517, 526 (1984). “[S]taff on the front line . . . daily

encounter prisoners hostile to the authoritarian structure of the prison

environment.” Sandin v. Conner, 515 U.S. 472, 482 (1995). “The very reason a

corrections officer position exists is to provide safety and security to the public,

as well as to prison employees and inmates; as such, the ability to provide safety

and security, including the ability to respond without hesitation or limitation in an

emergency is absolutely inherent to that position.” Frazier v. Simmons, 254 F.3d

1247, 1258 (10th Cir. 2001) (describing essential duties of a prison guard)

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(quotations and citation omitted).

While, under Whitley, the extent of injury suffered by an inmate is but one

of several factors suggesting the use of force is excessive (wanton and

unnecessary), we must also consider one of the purposes of § 111 is to further a

federal official’s effective function. 475 U.S. at 321. To determine whether

excessive force exists, “it may also be proper to evaluate the need for application

of force, the relationship between that need and the amount of force used, the

threat reasonably perceived by the responsible officials, and any efforts made to

temper the severity of a forceful response.” Hudson v. McMillian, 503 U.S. 1, 7

(1992) (quotations omitted). It is unrealistic to expect prison officials and

inmates to objectively ponder these various factors in the short moments

preceding physical contact.

Rather, we look to analogous situations in which we have allowed a

prisoner an affirmative defense. For example, in United States v. Bailey, inmates

escaped from prison allegedly because of a pattern of excessive force and

inhumane treatment by prison guards. 444 U.S. at 398. The Supreme Court

assumed the inmates could claim the affirmative defense of necessity or duress:

Common law historically distinguished between the defenses of
duress and necessity. Duress was said to excuse criminal conduct
where the actor was under an unlawful threat of imminent death or
serious bodily injury, which threat caused the actor to engage in
conduct violating the literal terms of the criminal law. While the
defense of duress covered the situation where the coercion had its
source in the actions of other human beings, the defense of necessity,
or choice of evils, traditionally covered the situation where physical

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 forces beyond the actor’s control rendered illegal conduct the lesser
of two evils.

Id. at 409-10. Under the common law, self-defense as an affirmative defense to a

crime was one form of duress. W ILLIAM B LACKSTONE , 2 C OMMENTARIES *30.

The defense of duress has been considered in several situations where the inmate

sought justification for a crime committed while in prison. See United States v.

Sahakian, 453 F.3d 905, 909 (7th Cir. 2006) (rejecting requested necessity

instruction in defense of carrying a knife in prison because a defendant “must

establish that he was under imminent fear of death or serious bodily harm”); see

also United States v. Bello, 194 F.3d 18, 27 (1st Cir. 1999) (addressing duress

defense to a charge of assault on a fellow inmate, and stating, “[a]s we have

already discussed in rejecting the self-defense claim, there was no immediate

threat of serious bodily injury or death here”).

In United States v. Butler, we recently analyzed a justification defense

relating to a charge of felon in possession of a firearm. 485 F.3d 569 (10th Cir.

2007). We noted:

Courts have used the terms duress, necessity, and justification
interchangeably. This may be due to the development of the defense
by drawing upon common law. While the defense of duress covered
the situation where the coercion had its source in the actions of other
human beings, the defense of necessity, or choice of evils,
traditionally covered the situation where physical forces beyond the
actor’s control rendered illegal conduct the lesser of two evils. In
modern times, the traditionally separate defenses of necessity and
duress have become increasingly blurred . . . to the point of merger.

Id. at 572 n.1 (quotations and citation omitted).

-20-
 In United States v. Leahy, another felon-in-possession case, the First

Circuit discussed the relationship of self-defense to necessity and duress. 473

F.3d 401 (1st Cir. 2007). It reasoned “that although some courts have performed

separate self-defense and necessity analyses,” there is no case taking a “position

on whether those defenses could be viewed as interchangeable.” Id. at 406. The

court concluded, “that ease in administration favors treating these three defenses,

[necessity, duress and self-defense] in a federal felon-in-possession case, under a

single, unitary rubric: justification.” Id.

The First Circuit’s reasoning is sound and we see no reason why it should

not extend to a charge of assault by a prisoner against a guard. In this Circuit, a

justification defense requires:

(1) that defendant was under an unlawful and present, imminent, and
impending threat of such a nature as to induce a well-grounded
apprehension of death or serious bodily injury;

(2) that defendant had not recklessly or negligently placed himself in
a situation in which it was probable that he would be forced to
choose the criminal conduct;

(3) that defendant had no reasonable, legal alternative to violating
the law, a chance both to refuse to do the criminal act and also to
avoid the threatened harm; and

(4) that a direct causal relationship may be reasonably anticipated
between the criminal action taken and the avoidance of the
threatened harm.

Butler, 485 F.3d at 572 (quoting United States v. Vigil, 743 F.2d 751, 755 (10th

Cir. 1984)); see also United States v. Portillo-Vega, 478 F.3d 1194, 1197 (10th

-21-
Cir. 2007) (“A duress defense ‘requires the establishment of three elements: (1)

an immediate threat of death or serious bodily injury, (2) a well-grounded fear

that the threat will be carried out, and (3) no reasonable opportunity to escape the

threatened harm.’”) (quoting United States v. Merchant, 992 F.2d 1091, 1096

(10th Cir. 1993)).

To require less than the threat of substantial bodily injury in a prison

environment, where physical contact between officers and inmates, (sometimes

rough) is common and necessary, would poorly serve the Congressional concerns

and the dual purpose of § 111. To require only a threat of “bodily harm” would

allow a prisoner to physically resist prison guards any time he “reasonably”

believed the guard was exceeding the force necessary to maintain prison or

personal security. For example, such a rule would allow any prisoner to

physically resist if the prisoner reasonably believed his handcuffs were too tight

causing momentary interruption of his circulation. Guards would second-guess

every use of force to ascertain whether the force used exceeded, even by a bit,

what was necessary. Such a rule would threaten the efficient and safe function of

the prison system. “The management by a few guards of large numbers of

prisoners, not usually the most gentle or tractable of men and women, may require

and justify the occasional use of a degree of intentional force. Not every push or

shove, even if it may later seem unnecessary in the peace of a judge’s chambers,

violates a prisoner’s constitutional rights.” Sampley v. Ruettgers, 704 F.2d 491,

-22-
494 (10th Cir. 1983). “A court should also bear in mind that a prison guard, to

maintain control of inmates, must often make instantaneous, on-the-spot decisions

concerning the need to apply force without having to second-guess himself.” Id.

at 496. Thus, applying the “ordinary” rules of self-defense in the prison setting

could well defeat the dual purpose of 18 U.S.C. § 111; we can foresee the

possibility of a more dangerous environment as a result. Id. at 495

(“Hamstringing prison guards, however, by forbidding their use of the force

necessary to maintain control of the prison not only would endanger the guards

but also could subject the prisoners themselves to greater violence at the hands of

their fellow inmates.”).

Contrary to Jones’s position, our case law has impliedly approved

instructions requiring serious bodily harm when considering a prisoner’s right to

use force against others in prison. For example, in United States v. Scalf, an

inmate on inmate assault case, we rejected an argument the district court erred in

giving a self-defense instruction requiring the presence of serious bodily harm

rather than Scalf’s proposed instruction requiring only “the imminent use of

unlawful force.” 725 F.2d 1272, 1273, 1276 (10th Cir. 1984) (quotations

omitted). We held “[t]he court’s instruction on self-defense was proper and most

adequate particularly when, as here, Scalf was the aggressor; Scalf admitted

chasing after [the other inmate] and stabbing him five or six times; Scalf

acknowledged [the other inmate] made no moves toward him at the time he

-23-
stabbed [him]; and Scalf acknowledged that [the other inmate] had never touched

him.” Id. at 1276. Jones argues Scalf does not apply here because he was not the

first aggressor and did not retaliate with force that would result in serious bodily

harm.

However, Scalf is not our only case considering self-defense behind prison

walls. Facts very similar to those in this case are found in Williams. There, a

prison guard attempted to transport the defendant to a different cell because of his

threatening behavior. The defendant resisted being placed in the cell and hit the

guard above his eye. At trial, the defendant and three other inmates all “blamed

the onset of the trouble on the officers and testified that [the defendant] had been

beaten by them.” Williams, 440 F.2d at 1302. The trial court instructed “that

when a prisoner is unlawfully attacked so as to induce in him a belief that he is in

serious bodily harm or of losing his life that the prisoner may resort to the

defense of his person and use whatever force that seems necessary at that time to

repel the unlawful attack in order to save himself from serious bodily injury.” Id.

(quotation omitted) (emphasis added). While the issue on appeal was the

sufficiency of the evidence, we found no error in the jury’s guilty verdict in light

of the trial court’s “strong charge.” Id.

In sum, assuming there is a self-defense justification to a charge under

§ 111, limiting the defense in cases involving inmate assaults on guards to only

those situations where the inmate reasonably fears imminent serious bodily harm

-24-
or death is a pragmatic approach to balancing the purposes of § 111 with the

rights of the inmates. We conclude the court did not err in its instruction to the

jury.

b. Instruction on Prior Conviction

Jones called two fellow inmates to testify at trial. He also took the stand.

During his direct examination he admitted to his three prior felony convictions

from 1989, one of which was for perjury. At trial, the court’s instructions

included Instruction 10 which stated:

You have heard evidence that witnesses were convicted of felonies,
including perjury in the case of the defendant. You may consider
this evidence, along with other pertinent evidence, only in deciding
whether or not to believe this witness and how much weight to give
the testimony of that witness.

(R. Vol. I, Doc. 171, Instruction 10.) Jones objected, complaining the jury

instruction impermissibly singled out his perjury conviction. [Vol. XIV at 806]

On appeal, he argues there is no authority allowing the court to single out a

defendant’s convictions and maintains he was entitled to a neutral instruction.

Jones further claims the instructional error is not harmless. While he admitted to

the perjury conviction at trial, he argues prejudice due to the government’s cross-

examination of Jones’s fellow inmates. On direct examination, the inmates

testified they heard Jones saying “what are you doing” and “let me go, let me go”

during the struggle. (Id. at 669-60, 683.) During cross-examination, the

government asked the inmates if they knew about Jones’s perjury conviction. The

-25-
government also used the perjury conviction in closing argument to attack Jones’s

credibility. Jones does not claim the cross-examination or the closing argument

was error. Rather, he contends the instruction unfairly underscored this evidence.

Noticeably absent from Jones’s argument is any citation to relevant case authority

to sustain his claim of error.

Rule 609(a)(2) of the Federal Rules of Evidence makes evidence of prior

criminal convictions involving “an act of dishonesty or false statement” the most

readily admissible of all prior convictions, presumably because such evidence is

highly relevant for the jury in assessing credibility. As Jones concedes, the

admission of his prior perjury conviction was fair game. He does not contend the

trial court misled the jury as a matter of law but claims that merely pointing out

the conviction was prejudicial error. We need not determine whether the district

court erred because, in any event, Jones fails to establish prejudice. “A harmless

error is one that does not have a substantial influence on the outcome of the trial;

nor does it leave one in grave doubt as to whether it had such effect.” United

States v. Jordan, 485 F.3d 1214, 1222 (10th Cir. 2007) (quotations and citation

omitted). In United States v. Grier, the Seventh Circuit concluded the trial

court’s specific reference to prior conviction in instruction did not prejudice the

defendant as the jury had already learned of the conviction through both his direct

and cross-examinations. 823 F.2d 177, 178 (7th Cir. 1982). Here, the perjury

conviction was properly before the jury, the government’s use of the conviction

-26-
was not unfair and the instruction’s substance properly stated the law.

Accordingly, to the extent the reference to Jones’s perjury conviction was error, it

was harmless.

c. Sufficiency of the Evidence

We review the sufficiency of the evidence de novo, asking “only whether,

taking the evidence – both direct and circumstantial, together with the reasonable

inferences to be drawn therefrom – in the light most favorable to the government,

a reasonable jury could find the defendant guilty beyond a reasonable doubt.”

Triana, 477 F.3d at 1194 (quotations omitted). Jones insists the video of the

events conclusively demonstrates he was justified to resist the excessive and

unlawful force used by the guards. We disagree. What can be seen in the video

supports the officers’ testimony as much, if not more, than Jones’s version of

events. After careful review of the videotape, recognizing its marginal quality,

and a full review of the entire record, we conclude there is sufficient evidence

supporting the jury’s verdict.

C. Post-Trial Errors

1. Jones’s Sentence

Prior to Jones’s sentencing hearing, the probation department prepared a

pre-sentence report (PSR) using the 2002 version of the sentencing guidelines.

For Count I, the assault on Eichers resulting in physical contact, the PSR

recommended applying the offense guideline for aggravated assault. See USSG

-27-
§2A2.2. “‘Aggravated assault’ means a felonious assault that involved (A) a

dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten)

with that weapon; (B) serious bodily injury; or (C) an intent to commit another

felony.” Id., comment. (n.1). The PSR suggested Jones’s attempt to get

Stevens’s baton during the struggle was an attempt to use a dangerous weapon to

cause bodily injury. Under the aggravated assault provision, the base offense

level was 15. See USSG §2A2.2(a). Three levels were added for brandishing or

threatening to use a dangerous weapon. See USSG §2A2.2(b)(2)(c). Another

three-point increase was included because Eichers was a prison official and Jones

was in his custody at the time of the assault. See USSG §3A1.2(b). The PSR also

recommended a two-level upward adjustment for obstruction of justice,

explaining Jones’s testimony at trial appeared to falsify material facts. See USSG

§3C1.1. Thus, for Count I the adjusted base offense level was 23.

For Count II, the assault on Stevens resulting in bodily injury, the PSR

recommended the same base offense level, adjustments and enhancements

recommended for Count I, but also included a two-level increase because Stevens

sustained bodily injury. See USSG §2A2.2(b)(3)(A). After applying a two-level

multiple-count adjustment, the combined total offense level was 27. See USSG

§3D1.4.

The PSR calculated Jones’s Criminal History as Category III. The

government requested it be increased to Category IV based on Jones’s

-28-
disciplinary history while in custody. The PSR rejected the government’s

suggestion but stated, “the court may want to consider the defendant’s inmate

disciplinary record and his prior offenses that were not assessed criminal history

points . . . when selecting a point within the guideline range or as aggravating

factors under 18 U.S.C. § 3553(a).” (R. Vol. XVIII at 17.) Based on an offense

level of 27 and a Criminal History Category of III, the guideline range for

imprisonment was 87 to 108 months.

The PSR also offered alternate guideline computations in the event the

court did not agree the aggravated assault guideline applied. Applying USSG

§2A2.4 (Obstructing or Impeding Officers), the base offense level was 6. Adding

three levels because the conduct involved physical contact and two levels for

obstruction of justice, the total combined offense level was 13. Based on a total

offense level of 13 and a Criminal History Category of III, the alternate guideline

range for imprisonment was 18 to 24 months.

Addressing the sentencing factors in 18 U.S.C. § 3553(a), the PSR

suggested “the court may consider that the defendant was involved in an assault

on two correctional officers, which by its nature is a serious offense,” his history

of violence before and during his imprisonment, and his poor adjustment to the

prison environment making it highly likely there will be further disciplinary

problems while he is incarcerated. (R. Vol. XVIII at 24.) The PSR also stressed

“the need for the court to afford adequate deterrence to criminal conduct.” (Id. at

-29-
R-2).

Jones objected to the PSR’s statement of the offense conduct, its use of the

aggravated assault guideline, the obstruction of justice adjustment and his prison

disciplinary record as a sentencing factor. He argued the total offense level

should be 11 resulting in a guideline range of 8 to 14 months imprisonment.

The court held two sentencing hearings. The first took place on May 2,

2005, and was primarily the presentation of the government’s evidence to support

its guideline range arguments. The government introduced the videotape of the

struggle as evidence of an aggravated assault. To support its request for an

increased Criminal History Category, the government introduced, over Jones’s

objection, his prison disciplinary records. Although the court allowed the

exhibits, it stated it would give the disciplinary records little, if any, weight in

determining the guideline range because the administrative findings were not

based on a full factual hearing. The government then introduced a transcript of

Jones’s trial testimony to support an obstruction of justice adjustment, claiming

Jones’s testimony was generally a series of material falsehoods.

The government also called a former inmate at Florence who was an

orderly (cleaning person) at the location where Jones was housed for several

months after the assault on Eichers and Stevens. The former inmate testified

Jones approached him the day after the altercation, asking him to sign an affidavit

falsely stating he had witnessed Jones having problems with the same guards in

-30-
the past. He also said Jones had given him a letter to pass on to another inmate

requesting that inmate’s sister to perform a background check on Stevens and

Eichers, as well as others who helped subdue Jones. In addition, Jones allegedly

stated in the letter “he wasn’t beyond killing these people that had harmed him.”

(R. Vol. XVI at 34.)

The second hearing took place on July 1, 2005. After hearing counsels’

final arguments on the guideline calculations, the court ruled the government

failed to show by a preponderance of the evidence that Jones intended to use the

baton as a deadly weapon and therefore, the court would apply USSG §2A2.4, not

the aggravated assault guideline. The court also concluded the government failed

to identify specific instances of material falsehoods in Jones’s testimony and

consequently, it would not apply an obstruction of justice adjustment. 7 Based on

the court’s rulings, it effectively determined the appropriate guideline range was

12 to 18 months imprisonment.

The court then allowed counsel to present argument under the 18 U.S.C.

§ 3553(a) factors. Jones argued a lenient sentence was warranted due to Jones’s

mental condition as a result of his lengthy incarceration, his lack of family

support including the recent death of his mother, and ended by urging the court to

“treat this as a . . . rather modest assault as criminal assaults go.” (R. Vol. XVII

7
The court did not address the inmate’s testimony in its oral rulings but
found no credibility in his rendition of events in its written order.

-31-
at 33.) Following the government’s response seeking a sentence above the

guidelines based on the § 3553(a) factors, the court stated:

[The guideline recommendation] is one factor of several to be
considered pursuant to Section 3553(a). And I do consider the
guidelines since they are a product of a lot of experience and study
and it does provide us with some handholds in determining a rational
range of sentence applicable to individuals.

The factors under the statute in addition to the guidelines, of course,
. . . the history and characteristics of the defendant, that’s well
stated. And he does have a violent history and a history that
conflicts with an ordered society. And the nature and the
circumstances of the offense . . . have been belabored by both sides
through trial and now through sentencing. I do conclude . . . that it
could be that the defendant’s view of what happened is more accurate
than that of the officers. We just simply – the evidence doesn’t make
it obvious.

But what is obvious is that the jury decided and that is the law as far
as we are concerned that this defendant forcibly assaulted the officers
in a voluntary and intentional manner. That’s the jury determination.
And particularly in ADX, but in prisons generally, that determination
requires punishment. The punishment as we know is to reflect the
seriousness of the offense, promote respect for law, should include
adequate deterrence, protect the public from further crimes of the
defendant, provide him with education, training and so forth, and
avoid particular unwarranted sentencing disparities.

When I look at this, I certainly feel that the defendant must be
punished for deterrence, for protection and hopefully to promote
respect for the law. I agree with the Government that it is a very
serious circumstance, what happened, and given the jury’s
determination, I believe that a reasonable and just punishment would
necessarily be something more than the guideline calculations as
stated . . . .

The circumstances of this individual, and keep in mind that the
struggle is certainly serious, but the injury and so forth
comparatively minor, I think an appropriate sentence . . . and by
appropriate I mean reasonable and just – would be three years
consecutive [to the time currently being served] and I will impose

-32-
 that sentence.

(Id. at 41-43.)

a) Standard of Review

After United States v. Booker, 543 U.S. 220 (2005), we review a sentence

for reasonableness, “encompass[ing] both the reasonableness of the length of the

sentence, as well as the method by which the sentence was calculated.” United

States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006) (emphasis omitted). In

United States v. Lopez-Flores, we determined an objection to the adequacy of the

court’s explanation for its sentence is an objection to the method by which the

sentence was calculated. 444 F.3d 1218 (10th Cir.), cert. denied, 127 S.Ct. 3043

(2006). An adequate explanation is required by 18 U.S.C. § 3553(c) which states,

in relevant part:

The court, at the time of sentencing, shall state in open
court the reasons for its imposition of the particular
sentence, and, if the sentence . . . is outside the
[guideline] range, . . . the specific reason for the
imposition of a sentence different from that described,
which reasons must also be stated with specificity in the
written order of judgment and commitment . . . .

We concluded if the defendant does not object to the district court’s lack of

explanation after it announced his sentence, “plain-error review is appropriate.”

Lopez-Flores, 444 F.3d at 1221.

Relying on Lopez-Flores, the government claims Jones is attacking only the

adequacy of the explanation given by the trial court for his sentence, i.e., the

-33-
method used to calculate the sentence. Because Jones did not object below, the

government asserts our standard of review is for plain error. In his reply brief,

Jones claims his appeal attacks both the method by which the sentence was

reached and its length. He argues the government’s reliance on Lopez-Flores is

misplaced because its holding is limited to objections relating to guideline

sentences.

We recently clarified the confusion regarding the standard of review in the

absence of an objection to the trial court’s failure to fully articulate its reasons for

imposing a specific sentence. United States v. Romero, 491 F.3d 1173 (10th

Cir.), cert. denied, __ S.Ct.__, 2007 WL 2300385 (2007). In Romero, we

reviewed a sentence imposed for illegal reentry into the United States. We

recognized Lopez-Flores had created some confusion because, in that case, the

defendant failed to raise any substantive argument that the § 3553(a) factors

merited a below-guidelines sentence. Id. at 1176. This fact “raise[d] some

question as to whether this omission affected our determination that his

procedural objection went unpreserved.” Id. We clarified our approach in

Romero, and applied a plain error standard despite Romero’s argument requesting

the court to lower his sentence from the guideline range. Id. at 1176-78. We

took the opportunity to reassert “[o]ur conviction that the requirement of

contemporaneous objection to procedural errors is consistent with our precedent

and represents a reasonable burden on defendants . . . .” Id. at 1177. Romero

-34-
contains no indication the plain error standard of review is inapplicable when a

general argument as to the length of the sentence is presented nor did we limit the

holding only to within-guidelines sentences. Id. at 1176-78. We reiterated the

purpose of an objection is to alert the court to error that can be immediately

corrected. Id. at 1177. It is even more incumbent on a defendant to object when

the court imposes an above-guidelines sentence which the defendant believes is

not adequately explained. Consequently, we apply a plain error standard to

Jones’s claim the district court did not articulate the factors supporting a sentence

exceeding the guideline range. “Plain error occurs when there is (1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.”

Lopez-Flores, 444 F.3d at 1222 (quotation omitted).

On the other hand, “it is unnecessary to argue to the district court after

imposition of the sentence that the sentence is unreasonably long.” Id. at 1221.

Thus, we review the ultimate sentence imposed for reasonableness. United States

v. Mares, 441 F.3d 1152, 1159 (10th Cir. 2006), cert. denied, 127 S.Ct. 3048

(2007).

b) Adequate Exposition

“[W]hen a district court imposes a sentence outside the Guidelines, the

level of scrutiny we apply in reviewing the sentence depends on the ‘comparative

difference’ between the applicable range under the advisory Guidelines and the

-35-
actual sentence imposed.” United States v. Hildreth, 485 F.3d 1120, 1127 (10th

Cir. 2007) (quoting United States v. Cage, 451 F.3d 585, 594 (10th Cir. 2006)).

We look to the percentage of divergence as well as the “absolute number of

months above or below the Guidelines range.” United States v. Valtierra-Rojas,

468 F.3d 1235, 1240 (10th Cir. 2006), cert. denied, 127 S.Ct. 2935 (2007). The

detail with which the court must explain its decision to vary from the guideline

range is relative to the degree of the discrepancy between the sentence and the

advisory range. Cage, 451 F.3d at 594 (“Had the comparative difference been

smaller but still outside the guidelines range, the district court’s decision would

not have been presumptively reasonable but an appropriate justification would

suffice for this court to determine that it is reasonable.”). 8

Here, Jones received a sentence of twice the 2002 guidelines maximum or

in other words, an additional eighteen months. This is certainly not extreme when

viewed in light of our cases. See United States v. Mateo, 1170 (10th Cir. 2006),

(471% or eight years upward variance is an “extreme” divergence), cert. denied,

127 S.Ct. 2890 (2007); Valtierra-Rojas, 468 F.3d 1235, 1237 (122% or thirty-

three month variance is “substantial,” rather than extreme); United States v.

Bishop, 469 F.3d 896, 908 (10th Cir. 2006) (37% or twenty-one month variance a

8
The Supreme Court has recognized “a number of circuits adhere to the
proposition that the strength of the justification needed to sustain an
outside-Guidelines sentence varies in proportion to the degree of the variance.”
Rita v. United States, 127 S.Ct. 2456, 2467 (2007). The Court will consider this
approach this term in United States v. Gall, No. 06-7949. Id.

-36-
“significant” increase). Rather, the variance in Jones’s sentence is substantial but

not extreme. We therefore require the court to express sufficiently compelling

reasons but “they need not be as ‘dramatic’” as the reasons supporting an extreme

divergence. Valtierra-Rojas, 468 F.3d at 1240.

The district court’s explanation was sufficient. The PSR, incorporated in

part in the sentencing record, stated, “the need for the court to afford adequate

deterrence to criminal conduct is great in this case. The 36-year-old defendant

has been incarcerated for the last 15 years . . . . The defendant has a history of

poor institutional adjustment in the BOP, and his behavior problems in prison

have escalated during his period of imprisonment.” 9 (R. Vol. XVIII at R-2.) At

sentencing, the court reiterated its concerns regarding Jones’s violent history and

the seriousness of the offense. It noted the special considerations given to the

location of the offense and the identity of the victims. Thus, an exceptional need

for deterrence, protection and the promotion of respect for the law was

sufficiently explained.

In addition, Jones does not allege any error by the district court that

affected his substantial rights or that the court’s failure to give a satisfactory

explanation would change “‘the outcome of the district court proceedings.’”

9
Jones’s disciplinary history included numerous incidents of insolence or
refusing to obey orders, one incident of threatening a staff member, one incident
of indecent exposure to a corrections officer, four incidents of fighting or
assaulting other inmates, and five incidents of possessing a weapon or sharpened
tool.

-37-
United States v. Trujillo-Terrazas, 405 F.3d 814, 819 (10th Cir. 2005) (quoting

United States v. Olano, 507 U.S. 725, 734 (1993)). “[W]e will not supply such an

argument for him.” Romero, 491 F.3d at 1179. For these reasons, Jones has

failed to demonstrate the trial court’s explanation for imposing an above-

guidelines sentence was error, let alone plain error.

c) Reasonableness of Sentence

Reasonableness is guided by the statutory factors delineated in 18 U.S.C.

§ 3553(a). Hildreth, 485 F.3d at 1127.

[Section] 3553(a) . . . tells the sentencing judge to consider (1)
offense and offender characteristics; (2) the need for a sentence to
reflect the basic aims of sentencing, namely (a) ‘just punishment’
(retribution), (b) deterrence, (c) incapacitation, (d) rehabilitation; (3)
the sentences legally available; (4) the Sentencing Guidelines; (5)
Sentencing Commission policy statements; (6) the need to avoid
unwarranted disparities; and (7) the need for restitution. The
provision also tells the sentencing judge to ‘impose a sentence
sufficient, but not greater than necessary, to comply with’ the basic
aims of sentencing as set out above.

Rita, 127 S.Ct. at 2463 (quoting 18 U.S.C. § 3553(a)).

Jones complains the court’s sentence of twice the upper limit of the

advisory guideline range is presumptively unreasonable. This argument is

foreclosed by our recent holding in Valtierra-Rojas, 468 F.3d at 1239. (“We join

these circuits in holding that a sentence outside of the properly calculated

Guidelines range is not presumptively unreasonable.”); see also Rita, 127 S.Ct. at

2467 (“The fact that we permit courts of appeals to adopt a presumption of

-38-
reasonableness does not mean that courts may adopt a presumption of

unreasonableness.”). Consequently, Jones is afforded no presumption his above-

guidelines sentence is unreasonable.

“A substantively reasonable sentence ultimately reflects the gravity of the

crime and the § 3553(a) factors as applied to the case.” Hildreth, 485 F.3d at

1127 (quotations omitted); see also Cage, 451 F.3d at 594. “[T]here is no

formula into which we input the degree of divergence in order to generate

precisely how compelling the district court’s reasons need be,” although

“comparison with other cases is a useful tool.” Valtierra-Rojas, 468 F.3d at 1240.

As discussed above, a comparison of Jones’s sentence with other cases reveals the

divergence from the guidelines here was not extreme.

Jones does not argue that the sentencing court’s reasons were not proper

under § 3553(a). Nor do we have a situation where the district court abandoned

the guidance afforded by the guidelines. Cf. Hildreth, 485 F.3d at 1129 (“[T]he

District Court essentially ignored the recommendation of the sentencing

Guidelines.”). As we have stated:

Although the sentencing Guidelines are now advisory, district courts
must consider them in reaching sentencing decisions. As we have
previously explained, the Guidelines are an expression of Congress’s
intentions in passing the sentencing laws. Consequently, a district
court may not determine reasonableness under § 3553(a) without
reference to the fact that the Guidelines represent a critical advisory
aspect of the § 3553(a) factors. Moreover, a properly calculated
Guidelines sentence will typically reflect an accurate application of
the factors listed in § 3553(a), including the need to avoid
unwarranted sentencing disparities under § 3553(a)(6), which we

-39-
 have noted is the purpose of the Guidelines.

Id. at 1128-29 (citations and quotations omitted).

Due to ex post facto concerns, Jones was sentenced under the 2002

Guidelines manual rather than the manual in effect at the time of sentencing, the

2004 Guidelines manual. While we offer no opinion as to whether the now-

advisory guidelines require an ex post facto analysis, the current guidelines at the

time of sentencing are instructive when reviewing a sentence for

unreasonableness. 10 See United States v. Tisdale, 7 F.3d 957, 967 (10th Cir.

1993). The base offense level for Jones’s offense was increased from 6 in 2002

10
Compare United States v. Demaree, 459 F.3d 791, 794-95 (7th Cir.
2006), cert. denied, 127 S.Ct. 3055 (2007) (“We conclude that the ex post facto
clause should apply only to laws and regulations that bind rather than advise, a
principle well established with reference to parole guidelines whose retroactive
application is challenged under the ex post facto clause.”); United States v.
Barton, 455 F.3d 649, 655 n.4 (6th Cir.), cert. denied, 127 S.Ct. 748 (2006)
(same); and United States v. Rodarte-Vasquez, 488 F.3d 316, 325 (5th Cir. 2007)
(Jones, J., concurring) (“A purely advisory regulation does not present an ex post
facto problem solely because it is traceable to Congress and will possibly
disadvantage a defendant.”); with United States v. Carter, 490 F.3d 641, 643 (8th
Cir. 2007) (“[A]t least one of our sister circuits has held that the ex post facto
clause does not apply to the now-advisory guidelines. But in a case decided after
Booker, we recognize[d] that retrospective application of the Guidelines
implicates the ex post facto clause, though we took into account post-offense
amendments to the guidelines when determining the overall reasonableness of the
defendant’s sentence.”) (quotation and citation omitted) and United States v.
Gilman, 478 F.3d 440, 449 (1st Cir. 2007) (“Although we note that the Court of
Appeals for the Seventh Circuit has concluded that Booker’s ruling that the
guidelines are advisory rather than mandatory carries with it the elimination of ex
post facto concerns, the issue is doubtful in this circuit.”) (citation and quotation
omitted).

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to 10 in 2004. 11 If the offense involved physical contact, the 2004 Guidelines

require an increase of three levels and if bodily injury was sustained, an

additional increase of two levels. See USSG §2A2.4(a),(b)(1)&(2).

Consequently, Jones’s base offense level under the 2004 Guidelines would have

been 30 to 37 months imprisonment. 12

We also are mindful that “[t]he sentencing judge has access to, and greater

familiarity with, the individual case and the individual defendant before him than

the Commission or the appeals court.” Rita, 127 S.Ct. at 2469. Here, the

statutory maximum for these offenses was eight years for an assault resulting in

physical contact and twenty years for an assault resulting in bodily injury. See 18

U.S.C. § 11(a)&(b). The guideline range did not account for Jones’s extensive

prison disciplinary history or the fact he was an inmate who attacked prison

officials. “To affirm, we must simply be satisfied that the chosen sentence,

standing alone, is reasonable.” United States v. Jarrillo-Luna, 478 F.3d 1226,

1230 (10th Cir. 2007). Given the above considerations, we do not find the

imposition of a thirty-six month sentence unreasonable.

11
The 2002 Guidelines were used pursuant to USSG §1B1.11(b)(1) which
provides: “If the court determines that use of the Guidelines Manual in effect on
the date that the defendant is sentenced would violate the ex post facto clause of
the United States Constitution, the court shall use the Guidelines Manual in effect
on the date that the offense of conviction was committed.”
12
The imposition of another two levels, one for each conviction on two
counts, remained the same under both the 2002 and 2004 Guidelines. See USSG
§3D1.4(2002) and USSG §3D1.4 (2004).

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 B. Motion for a New Trial

Jones’s second motion for a new trial was based on his conversation with

another inmate while waiting for his second sentencing hearing. The inmate,

alleged he, too, suffered an unprovoked attack by Eichers while at Florence

during the summer of 2003. Jones complains that had he known of this incident,

he “could have used this information to effectively cross-examine Officer Eichers

and undermined the credibility of the guards,” which “could have changed the

jury verdict.” (R. Vol. I, Doc. 197 at 2.) In his reply brief to the trial court,

Jones claimed: “This evidence was admissible, not only as [] impeachment after

Officer Eichers took the stand, but as independent evidence under Fed. R. Evid.

404(b).” (Id., Doc. 204 at 4.) Jones did not elaborate on this claim.

The court denied Jones’s motion concluding the new evidence was merely

impeachment evidence. The court also observed: “In his reply, Jones argues for

the first time that evidence of the [inmate’s] incident would have been admissible

under Fed. R. Evid. 404(b) as independent evidence relevant to the affirmative

defense of self-defense. Jones fails to provide any information from which I

could determine that the . . . incident was similar enough to the facts of this case

to be relevant for 404(b) purposes.” (R. Vol. I, Doc. 242 at 3.)

Jones argues he “made a prima facie showing that the evidence was more

than merely impeaching evidence” which “should be enough to obtain a ruling on

the merits.” (Appellant’s Supp. Opening Br. at 4.) He asserts: “If the court

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believed it needed more information, it should have asked the parties for it or set

the motion for a hearing.” (Id.) We disagree.

Rule 33(a) of the Federal Rules of Criminal Procedure authorizes district

courts to grant new trials “if the interest of justice so requires.” “A motion for a

new trial based on newly discovered evidence is generally disfavored and should

be granted only with great caution.” United States v. Gwathney, 465 F.3d 1133,

1143 (10th Cir. 2006) (quotations omitted), cert. denied, 127 S.Ct. 2151 (2007).

“To procure a new trial based on newly discovered evidence . . . the defendant

must show:

(1) the evidence was discovered after trial; (2) the failure to learn of the
evidence was not caused by his own lack of diligence; (3) the new evidence
is not merely impeaching; (4) the new evidence is material to the principal
issues involved; and (5) the new evidence is of such a nature that in a new
trial it would probably produce an acquittal.

Id. at 1144 (quotations omitted). We review the denial of a motion for a new trial

for abuse of discretion. United States v. Quintanilla, 193 F.3d 1139, 1146 (10th

Cir. 1999).

We find no abuse of discretion here. The court carefully and thoroughly

reviewed the proffered evidence (even though it was unaccompanied by an

affidavit) and reached a reasonable conclusion. Jones did not explain his Rule

404(b) theory to the court nor does he do so on appeal. 13 We also note his

13
Rule 404(b) of the Federal Rule of Evidence provides in relevant part:

Evidence of other crimes, wrongs, or acts is not admissible to prove

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argument on appeal fails to contain any citation to supporting legal precedent.

We require more than bare conclusions. See United States v. Hall, 473 F.3d 1295,

1313 n.5 (10th Cir. 2007) (stating failure to meaningfully develop arguments will

forfeit them on appeal); see also Barkell v. Crouse, 468 F.3d 684, 696 (10th Cir.

2006) (“We have consistently held that we will not consider claims unsupported

by cogent argument and authority.”).

AFFIRMED.

ENTERED FOR THE COURT

Terrence L. O’Brien
Circuit Judge

the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake . . . .

Jones fails to provide any analysis of this provision and even fails to identify the
purpose for which he would use the Rule 404(b) evidence.

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No. 05-1329, 06-1105, United States v. Robert Jerome Jones

ANDERSON, Circuit Judge, concurring:

I concur in the result reached by the Order and Judgment.