United States v. Renaldo Cassinova Jones

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 29, 2005
No. 04-14217
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 03-14006-CR-DMM

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RENALDO CASSINOVA JONES,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Florida
_________________________

(November 29, 2005)

Before TJOFLAT, DUBINA and WILSON, Circuit Judges.

PER CURIAM:

Renaldo Cassinova Jones appeals his 235-month sentence for conspiracy to
possess with intent to distribute cocaine, in violation of 21 U.S.C. § 846. On

appeal, Jones argues that, under United States v. Booker, 543 U.S. ___, 125 S. Ct.

738, 160 L. Ed. 2d 621 (2005), the district court committed constitutional error by

enhancing his sentence under United States Sentencing Guidelines Manual §4B1.1

based upon judicially-found facts, specifically the facts surrounding his 1989 arrest

and subsequent guilty plea, stemming from a home invasion. Jones contends that,

in relation to the 1989 home invasion, he pled guilty to a misdemeanor battery, not

a sexual battery, as stated in the Presentence Investigation Report (“PSI”). He

asserts that the characterization of his conviction as a sexual battery led to the

PSI’s determination that he was a career offender, which resulted in a total offense

level of 34, rather than 26. Jones argues that, in light of Shepard v. United States,

___ U.S. ___, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005), the district court erred in

determining the nature of his prior conviction based on an arrest affidavit. Jones

also asserts that the district court committed statutory Booker error by sentencing

him under a mandatory guidelines scheme, and that the government cannot show

that the error was harmless. Finally, Jones argues that his sentence was

unreasonable.

Because Jones did not raise a Booker challenge to the guidelines calculations

below, we review his claim only for plain error. United States v. Dowling, 403

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F.3d 1242, 1246-47 (11th Cir. 2005), cert. denied (U.S. Oct. 11, 2005) (No. 05-

6234). Under a plain error analysis, a defendant must show (1) an error, (2) that is

plain, and (3) that affects substantial rights. Id. at 1247 (internal quotation

omitted). If the defendant satisfies this burden, we may then exercise our

discretion to notice the error if the error “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. (internal quotations and citations

omitted). In the context of Booker errors, the plain error test is satisfied only when

the defendant can show that “there is a reasonable probability of a different result.”

Id. (internal quotation omitted).

In Booker, the Supreme Court concluded that the mandatory nature of the

Sentencing Guidelines rendered them incompatible with the Sixth Amendment’s

guarantee to the right to a jury trial. Booker, 543 U.S. at ___, 125 S. Ct. at 749-51.

There are two types of Booker errors: (1) a constitutional error, which occurs when

an individual’s sentence is enhanced based on judicial findings that go beyond the

facts admitted by the defendant or found by the jury; and (2) a statutory error,

which occurs when a defendant is sentenced under a mandatory guidelines system.

United States v. Shelton, 400 F.3d 1325, 1330-31 (11th Cir. 2005).

In this case, any constitutional error that the district court committed in

determining that Jones’s criminal history included a sexual battery as opposed to a

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simple battery is not reversible plain error because the career offender

enhancement still would have applied, even without inclusion of this conviction.

Furthermore, although the district court committed statutory Booker error by

sentencing him at the high end of the guideline range, Jones cannot show that his

substantial rights were affected. In fact, the district court referred to “the criminal

history as the reason for imposing a sentence at the high end of the guideline

range,” and emphasized Jones’s record of “serious crime,” including multiple drug

offenses, and his propensity to threaten violence and commit violent acts. Because

Jones cannot show a reasonable probability of a different result, the district court

did not commit reversible plain error when it sentenced him under the mandatory

guidelines scheme.

Jones next argues that, due to the facts of his case and the “lack of evidence

presented at sentencing,” his sentence was unreasonable. However, when a

defendant is sentenced pre-Booker and fails to preserve the issue below, we do not

review for reasonableness; rather, we review for plain error. See United States v.

Robles, 408 F.3d 1324, 1327-28 (11th Cir. 2005). Under such an analysis, as we

have already stated, Jones’s claim that the district court committed reversible error

in determining his sentence is without merit.

Upon review of the record and consideration of the parties’ briefs, we

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discern no reversible error. Accordingly, we affirm.

AFFIRMED.