FILED
United States Court of Appeals
Tenth Circuit
August 3, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 11-6074
v. (W.D. Oklahoma)
DERRICK JERRELL JONES, (D.C. No. 5:10-CR-00061-F-1)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before LUCERO, ANDERSON, and GORSUCH, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10 th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Defendant and appellant Derrick Jerrell Jones pled guilty to one count of
possession of crack cocaine with intent to distribute and one count of being a
felon in possession of two semi-automatic handguns. At sentencing, the district
*
This order and judgment is not binding precedent except under the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.
court determined to vary upward from the advisory sentencing guidelines range
under the United States Sentencing Commission, Guidelines Manual (“USSG”),
and sentenced Mr. Jones to 120 months’ imprisonment. Mr. Jones appeals his
sentence, arguing that the 120-month term was imposed in a procedurally
unreasonable manner and is substantively unreasonable. We affirm.
BACKGROUND
In August 2007, the Federal Bureau of Investigation (“FBI”) began an
investigation into a large gang-related drug conspiracy. Law enforcement
personnel discovered that Mr. Jones was a part of the conspiracy. After
conducting surveillance and investigating Mr. Jones, officers searched his home,
where they found 133.9 grams of crack cocaine, twenty-six grams of marijuana,
three sets of digital scales with drug residue, two semi-automatic handguns and
several rounds of ammunition. As it turned out, Mr. Jones was on probation for a
prior drug conviction and an attempted home-burglary conviction when he was
participating in the instant conspiracy. He also admitted, as stated in his
presentence report (“PSR”), that he had been involved in gang activity for many
years.
As indicated above, pursuant to a plea agreement Mr. Jones pled guilty to
possession of crack cocaine with intent to distribute, in violation of 21 U.S.C.
§ 841(a)(1), and being a felon in possession of firearms, in violation of 18 U.S.C.
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§ 922(g)(1). In preparation for sentencing, the United States Probation Office’s
PSR calculated that the applicable advisory guidelines sentencing range was 108
to 135 months, based upon the offenses of conviction and a criminal history
category of III. At sentencing, the district court ultimately concluded that the
applicable advisory guideline range was 87 to 108 months. It also rejected
Mr. Jones’ motion for a downward departure. Instead, the court stated as follows:
I certainly do recognize that I have the discretion to depart
downward and I don’t intend to do so. As a matter of fact, I intend
to vary upward.
The guideline range is 87 to 108 months. I find that that
guideline range is not sufficient to . . . accomplish the statutory
objectives of sentencing. In this case, the predominant statutory
objectives of sentencing are incapacitation, deterrence, and just
punishment.
Mr. Jones, your gang activity is more recent than most of the
defendants that I have before me facing similar charges and who
have been convicted of similar crimes. You have a previous
conviction for possession of crack with intent to distribute. For that
reason, it is apparent that you had a previous opportunity to
reconsider whether you ought to spend your time and effort
distributing this horrible substance.
You have a previous burglary conviction that came along, as I
recall, after your . . . previous crack cocaine distribution conviction.
All of which causes me to conclude that a sentence within the
guideline range really would not in this instance–and this is unusual
for me–but really would not in this instance comport with the
statutory objectives of sentencing.
This is not a major factor, but I couldn’t help but notice that
you apologized to your family and the Court but did not make one
reference to the victims who are–whose lives have been affected by
your distribution of this horrible substance.
Accordingly, the top of your guideline range is 108 months.
I’m going to impose a sentence of 120 months. Because I think
that’s what is required to keep you from committing further offenses
of this kind or any other kind, in order to deter others from following
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the path you have followed, and to provide just punishment for your
offense.
Tr. of Sentencing at 22-24, R. Vol. 3 at 33-35.
Defense counsel then registered an objection to the upward variance on two
stated grounds: “no notice in the presentence report that an upward departure was
warranted”; and that the “departure . . . was not supported by the available
evidence.” Id. at 26-27. The district court implicitly dismissed the objection,
after explaining that no prior notice was required when the court varies from an
advisory guideline range, as opposed to departing from such a range. 1 See
Irizarry v. United States, 553 U.S. 708, 714-15 (2008).
This appeal followed, in which Mr. Jones argues that the district court
“committed significant procedural error by failing to adequately explain the
upward variance from the advisory guideline range and by relying on insufficient
evidence to support the upward variance.” Br. of Appellant at 9. He also
challenges the sentence as substantively unreasonable.
1
Departures and variances are two different things. See United States v.
Sells, 541 F.3d 1227, 1237 n.2 (10 th Cir. 2008) (explaining that a departure occurs
when a court sentences a defendant above or below the recommended guideline
range under Chapter 4 or 5 of the sentencing guidelines, whereas a variance
occurs when a court “enhances or detracts from the recommended range through
application of § 3553(a) factors”) (further quotation omitted).
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DISCUSSION
We review the reasonableness of sentencing decisions, “whether inside, just
outside, or significantly outside the Guidelines range under a deferential abuse-
of-discretion standard.” Gall v. United States, 552 U.S. 38, 41 (2007); United
States v. Huckins, 529 F.3d 1312, 1317 (10 th Cir. 2008). A sentencing court
abuses its discretion when its decision is “arbitrary, capricious, whimsical, or
manifestly unreasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146
(10 th Cir. 2008). Reasonableness review includes a procedural and a substantive
analysis.
I. Procedural Reasonableness
“Procedural reasonableness addresses whether the district court incorrectly
calculated or failed to calculate the Guidelines sentence, treated the Guidelines as
mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous
facts, or failed to adequately explain the sentence.” Gall, 552 U.S. at 51.
Mr. Jones argues the district court committed procedural error because it
failed to adequately explain its upward variance from the advisory guideline
range. More specifically, he argues that the district court’s finding that he was
involved in “recent gang activity” is not supported by the record. Mr. Jones
further alleges that the district court’s reliance on his previous drug conviction to
support its upward variance means that any defendant who re-offends is unfairly
susceptible to an increased sentence.
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The government contends that we must consider the propriety of the court’s
variance under the plain error standard of review, because Mr. Jones failed to
object to the variance at sentencing. Whether we apply a plain error standard of
review or not, Mr. Jones’ variance argument fails. 2 The district court gave
detailed reasons, grounded in the § 3553(a) factors, why it believed an upward
variance was necessary. It specifically stated that Mr. Jones’ gang-related
activity and extensive prior criminal history, combined with the need to deter
Mr. Jones and others, the need to protect the public, and the need to punish
Mr. Jones properly for his conduct, all combined to suggest an upward variance.
As indicated, Mr. Jones also argues that the district court’s reference to his
recent gang-related activity is not supported by the evidence. Mr. Jones’ PSR
expressly states: “At 16 years of age [Mr. Jones] moved out of his mother’s home
and ‘lived on the street.’ According to [Mr. Jones], he also was in a gang, the
Grape Street Crips, from age 12 to 20. The gang affiliation was confirmed by the
Oklahoma City Gang Task Force.” PSR at ¶ 68, R. Vol. 2 at 16. No objection
was made to that factual finding, which the district court expressly adopted. We
2
The confusion regarding the applicability of the plain error standard of
review stems from the fact that Mr. Jones objected to the 120-month sentence at
the sentencing hearing, although he viewed the departure from the advisory
sentencing guideline range as a “departure,” rather than a “variance.” Thus, it is
not completely clear whether we should conclude that Mr. Jones failed to raise, at
the time of sentencing, the issue of the departure from the guidelines range. We
conclude that we need resolve this issue, because Mr. Jones’s argument
concerning the propriety of the sentence fails under any standard.
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cannot say that the district court clearly erred in determining that Mr. Jones’
gang-related activity was extensive and sufficiently recent that it caused the court
concern.
Mr. Jones further argues that the court could not vary upward based upon
his prior drug conviction, and therefore his purported failure to rehabilitate,
because the Guidelines already account for that in his criminal history score. As
the government points out, Mr. Jones misreads our case law. We have
acknowledged that “district courts are now allowed to contextually evaluate each
§ 3553(a) factor, including those factors the relevant guideline(s) already purport
to take into account.” United States v. Smart, 518 F.3d 800, 808 (10 th Cir. 2008).
In sum, the district court thoroughly and clearly explained its reasons for
imposing an upward variant sentence. Accordingly, we conclude that the
sentence imposed is procedurally reasonable.
II. Substantive Reasonableness
As indicated above, Mr. Jones also challenges the substantive
reasonableness of his 120-month sentence. “[S]ubstantive reasonableness review
broadly looks to whether the district court abused its discretion in weighing
permissible § 3553(a) factors in light of the totality of the circumstances.” United
States v. Sayad, 589 F.3d 1110, 1118 (10 th Cir. 2009) (further quotation omitted).
When considering a variance, we must “consider the extent of the deviation and
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ensure that the justification is sufficiently compelling to support the degree of the
variance.” Gall, 552 U.S. at 50. Further, we use a “highly deferential standard of
review in assessing the substantive reasonableness of a sentence.” Sayad, 589
F.3d at 1118.
In this case, the district court supported its selected sentence by reference
to proper § 3553(a) factors, including Mr. Jones’ dangerous and lengthy criminal
history and a long history of gang affiliation, his failure to rehabilitate, and his
lack of remorse for those to whom he sold drugs. The sentence imposed was
substantively reasonable.
CONCLUSION
For the foregoing reasons, we AFFIRM the sentence in this case.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
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