Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-2-2009
USA v. Christopher Jones
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2483
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2483
UNITED STATES OF AMERICA
v.
CHRISTOPHER D. JONES,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D. C. No. 4-03-cr-00201-001)
District Judge: Hon. Malcolm Muir
Submitted under Third Circuit LAR 34.1(a)
on March 3, 2009
Before: BARRY, WEIS and ROTH, Circuit Judges
(Opinion filed: June 2, 2009)
OPINION
ROTH, Circuit Judge:
Christopher Jones was convicted of possession with intent to distribute and
distribution of less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). He
was sentenced to 262 months of imprisonment. Jones raises three challenges to his
convictions and two challenges to his sentence. The District Court had jurisdiction
pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
assume the parties’ familiarity with the facts and the record of prior proceedings, which we
describe only as necessary to explain our decision. We will affirm.
First, Jones contends that the District Court erred in permitting the government to
argue that “movement of the drugs from point A to point B” constituted “distribution” and
that this error mandates vacating his conviction. Jones alleges no defect in either the
indictment or the definition of “distribution” offered in the jury instructions, nor does he
challenge the sufficiency of the evidence with respect to the “possession with intent to
distribute” prong of his conviction; rather, he contends that the government’s closing
arguments regarding “distribution” included misstatements of the law. Arguments,
however, are not evidence, see Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,
210 (3d Cir. 1992), and the District Court properly instructed the jury as follows: “If any
difference appears to you between the law as stated by counsel and that as stated by the
Court in our instructions, you of course are to be governed by the instructions given to you
by the Court.” At most, then, Jones’s complaint is that the government failed to meet its
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factual burden with respect to “distribution.” Our review of the record demonstrates that
there was ample evidence of possession with intent to distribute. Accordingly, under our
precedents, we must “assume that the jury convicted on the factually sufficient theory [of
possession with intent to distribute] and [must] let the jury verdict stand.” See United
States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002).1
Second, Jones argues that the District Court abused its discretion in permitting the
government to cross-examine him concerning his two prior felony drug convictions. The
convictions, however, were relevant to impeach Jones’s testimony under Federal Rule of
Evidence 609(a) and probative of his intent under Federal Rule of Evidence 404(b). See
United States v. Greenidge, 495 F.3d 85, 97 (3d Cir. 2007) (noting that similar, recent
prior convictions are more likely to be relevant for purposes of Rule 609(a)); United States
v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992) (citing with approval United States v.
Rocha, 553 F.2d 615, 616 (9th Cir. 1977), in which evidence of prior transportation of
marijuana was admissible to show intent in a subsequent prosecution for possession of
marijuana with intent to distribute). The District Court properly weighed the probative
value of these convictions against the potential prejudice to Jones and did not abuse its
discretion in admitting them.
Third, Jones argues that he was the victim of racial discrimination when the
1
We thus do not reach the question whether transportation of drugs, by itself, could
amount to “distribution” under 21 U.S.C. § 841(a)(1).
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prosecutor ordered background checks on three potential jurors, including the only African
American juror, and then challenged that juror for cause when it was determined he had
lied about his criminal history and involvement with drugs. This argument fails because
the principles of Batson v. Kennedy, 476 U.S. 79 (1986), apply only to peremptory strikes.
See, e.g., United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir. 1996) (“We know of no
case that has extrapolated the Batson framework to for-cause strikes.”); United States v.
Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (“[N]o authority suggests Batson
extends to the area of challenges for cause.”); cf. United States v. DeJesus, 347 F.3d 500,
506 (3d Cir. 2003) (“In order to make a prima facie showing [under Batson], the defendant
must show that the government has exercised peremptory challenges to remove members
of a particular race from the venire.” (emphasis added)). Not only was the juror in
question challenged for cause, but Jones does not argue that the juror was improperly
excluded.
Jones next argues that his within-Guidelines sentence of 262 months was
unreasonable because his designation as a “career offender” does not accurately reflect his
criminal history or the seriousness of his crime, does not further the purposes of sentencing
under 18 U.S.C. § 3553(a), and results in racial discrimination. The District Court,
however, adequately weighed each of the relevant statutory factors, offered a lengthy
colloquy, and determined that a sentence of 262 months was appropriate in this instance.
See United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc) (“The touchstone of
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reasonableness is whether the record as a whole reflects rational and meaningful
consideration of the factors enumerated in 18 U.S.C. § 3553(a).” (internal quotation
marks omitted)). This sentence was, thus, not an abuse of discretion.
Finally, Jones argues that the District Court violated his Sixth Amendment rights by
failing to place the question of his prior felony drug conviction before a jury before using
it to increase his sentence beyond the otherwise-applicable statutory maximum of twenty
years. This argument fails because it is well-established that a court, rather than a jury,
may determine the fact of a prior conviction for purposes of sentencing. See United States
v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). Additionally, Jones admitted to his prior
convictions under oath, so they were not in dispute.
Accordingly, we will affirm Jones’s judgment of conviction and sentence.
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