NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 16 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30261
Appellee, D.C. No.
2:13-cr-00052-WFN-1
v.
MAXWELL DELVON JONES, AKA MEMORANDUM*
Money
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted October 5, 2017
Seattle, Washington
Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.
In November 2014, the district court sentenced Maxwell Jones to 144 months’
imprisonment on three counts of being a felon in possession of a firearm. We
vacated that sentence in May 2016 because the district court improperly relied on
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
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three of Jones’s uncounseled prior convictions in fashioning his sentence. United
States v. Jones, 653 F. App’x 861, 862 (9th Cir. 2016) (mem.) (Jones I). In
remanding the case for resentencing, we observed that Jones had been convicted and
sentenced on state robbery charges that were pending at the time of his initial
sentencing, and instructed the district court that it could consider this intervening
sentence as a “prior sentence” to calculate Jones’s criminal history category. Id.
The district court resentenced Jones and imposed an 84-month term of
imprisonment, a six-month upward departure from the guideline range of 63 to 78
months. In pronouncing sentence, the court referenced Jones’s prior uncounseled
convictions, stating that Jones had “a couple of assault convictions,” “a couple of
convictions for drug distribution, [and] possession of stolen property.” Jones
appeals, arguing that the district court once again relied on his prior uncounseled
convictions, and also erred by adding his intervening sentence to his criminal history
score. We affirm.
Intervening Sentence
The district court did not err by including Jones’s intervening state sentence
in calculating his criminal history score. In Jones I, we explicitly advised the district
court that it could consider the sentence for that purpose. 653 F. App’x at 862. Our
instruction was consistent with the Sentencing Guidelines and with Ninth Circuit
case law. See U.S.S.G. §§ 4A1.1, 4A1.2(a)(1) & cmt. n.1; United States v. Klump,
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57 F.3d 801, 802 (9th Cir. 1995). Jones urges us to revisit our rule that district courts
may consider “post-sentencing sentence[s]” at resentencing hearings. Klump, 57
F.3d at 803. We have no occasion to reexamine Klump, however, as “one three-
judge panel of this court cannot reconsider or overrule the decision of a prior panel.”
United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).
Nor does the district court’s decision to consider Jones’s intervening sentence
violate the constitutional prohibition on ex post facto laws. U.S. Const. art. I, § 9,
cl. 3; art. I, § 10, cl. 1. The Ex Post Facto Clause “is aimed at laws that ‘retroactively
alter the definition of crimes or increase the punishment for criminal acts.’” Cal.
Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood,
497 U.S. 37, 43 (1990)). Jones can point to no such law, as his punishment increased
due to a change in facts—namely, his state court sentencing based on conduct
predating his original federal sentencing—not a change in law.
Uncounseled Convictions
We review the district court’s consideration of Jones’s prior uncounseled
convictions for plain error because Jones did not object during his resentencing
hearing. Fed. R. Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725, 731
(1993). Plain error review has four components. First, there must “indeed be an
‘error’”; that is, a non-waived “[d]eviation from a legal rule.” Olano, 507 U.S. at
732−33. Second, the error must be “plain.” Id. at 734. “‘Plain’ is synonymous with
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‘clear’ or, equivalently, ‘obvious.’” Id. Third, the appellant must demonstrate that
the plain error affected his substantial rights. Id. In sentencing appeals, this requires
showing “a reasonable probability that he would have received a different sentence”
but for the error. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008).
Finally, courts of appeals typically “correct a plain forfeited error affecting
substantial rights” only if “the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Olano, 507 U.S. at 736 (quoting United
States v. Atkinson, 297 U.S. 157, 160 (1936)).
Jones satisfies the first two Olano factors, as the district court plainly erred
when it considered his constitutionally infirm prior convictions. See United States
v. Bryant, 136 S. Ct. 1954, 1962 (2016); United States v. Tucker, 404 U.S. 443,
448−49 (1972). However, Jones has not demonstrated that the district court’s error
affected his substantial rights. Even discounting Jones’s uncounseled convictions,
his criminal history is long and serious by any measure. It includes convictions for
resisting arrest, second-degree robbery, possession of a stolen firearm, conspiracy to
possess oxycodone, and first-degree robbery. Furthermore, district courts may take
the conduct underlying a constitutionally infirm prior conviction into account when
imposing sentence. E.g., United States v. Williams, 782 F.2d 1462, 1467 (9th Cir.
1985). Our review of the sentencing transcript indicates that the district court placed
significant weight on Jones’s history of serious criminal conduct. Lastly, the district
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court justified its sentence on factors unrelated to Jones’s criminal history, including
the seriousness of his offense conduct. For these reasons, Jones has not shown “a
reasonable probability that he would have received a different sentence” but for the
district court’s plain error. Waknine, 543 F.3d at 554.
AFFIRMED.
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