United States v. Jones

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 15, 2006

Charles R. Fulbruge III
Clerk
No. 05-31074
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

TYRONE JONES,

Defendant-Appellant.

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Appeals from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:02-CR-299-1
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Tyrone Jones appeals the sentence the district court imposed

on remand for resentencing for his convictions for being a felon

in possession of a firearm and possession of a firearm after

entry of a domestic violence restraining order. Jones argues

that the district court violated his Sixth Amendment rights by

enhancing his sentence based on his possession of a firearm in

connection with a drug offense, of which the trial jury had

acquitted him. Jones contends that the jury’s verdict of

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
 No. 05-31074
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acquittal denied the district court the authority to impose a

sentencing enhancement based on the acquitted conduct. We have

held that “[a] jury’s verdict of acquittal does not prevent the

sentencing court from considering conduct underlying the

acquitted charge, so long as that conduct has been proved by a

preponderance of the evidence.” United States v. Valdez, ___

F.3d ___, 2006 WL 1644823 at *8 (5th Cir. June 15, 2006) (No. 04-

50499)(citing United States v. Watts, 519 U.S. 148, 157 (1997);

United States v. Cathey, 259 F.3d 365, 368 (5th Cir. 2001)). The

Supreme Court’s decision in Watts remains valid after United

States v. Booker, 543 U.S. 220 (2005). See United States v.

Vaughn, 430 F.3d 518, 526-27 (2d Cir. 2005), cert. denied, 126 S.

Ct. 1665 (2006); United States v. Price, 418 F.3d 771, 788 (7th

Cir. 2005); United States v. Magallanez, 408 F.3d 672, 684 (10th

Cir.), cert. denied, 126 S. Ct. 468 (2005); United States v.

Duncan, 400 F.3d 1297, 1304-05 (11th Cir.), cert. denied, 126

S. Ct. 432 (2005). Jones has not shown that the district court’s

enhancement of his sentence based on acquitted conduct was error.

See Valdez, 2006 WL 1644823 at *8.

Jones also argues that the sentence imposed on remand by the

district court was unreasonable. Following Booker, sentences are

reviewed for reasonableness. Mares, 402 F.3d at 518. “If the

sentencing judge exercises her discretion to impose a sentence

within a properly calculated Guideline range, in our

reasonableness review we will infer that the judge has considered
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all the factors for a fair sentence set forth in the Guidelines.”

Id. at 519. Further, the district court need not give a detailed

explanation for its choice of a sentence that is within the

guidelines range. Id. Indeed, there is a presumption that a

post-Booker discretionary sentence imposed within a properly

calculated guidelines range is reasonable. United States v.

Alonzo, 435 F.3d 551, 554 (5th Cir. 2006).

In Jones’s case, the district court departed upward pursuant

to U.S.S.G. § 4A1.3(a)(1) because Jones’s original criminal

history score seriously underrepresented the seriousness of

Jones’s criminal history and the likelihood that he would commit

another crime. Jones’s sentence is thus considered a Guidelines

sentence because the district court’s authority to depart derived

from the Guidelines themselves. See United States v. Smith, 440

F.3d 704, 707 (5th Cir. 2006). We review both the decision to

depart and the extent of that departure for abuse of discretion.

United States v. Desselle, 450 F.3d 179, 182 (5th Cir. 2006); see

also United States v. Simkanin, 420 F.3d 397, 415-16 (5th Cir.

2005), cert. denied, 126 S. Ct. 1911 (2006). “A district court

abuses its discretion if it departs on the basis of legally

unacceptable reasons or if the degree of the departure is

unreasonable.” Desselle, 450 F.3d at 182. In assessing the

extent of a departure, this court continues to look to pre-Booker

case law for guidance. Id. This court ultimately determines
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whether the sentence is unreasonable with regard to 18 U.S.C.

§ 3553(a). Id.

On remand, the district court imposed the same 78-month

sentence that it imposed at the original sentencing, stating that

it considered the factors set forth in 18 U.S.C. § 3553(a)(1) &

(2), and stating that the sentence was appropriate for the

reasons previously set forth at the original sentencing. Our

review of the record reveals that the district court gave

numerous reasons for the sentence it imposed and these reasons

indicate that it considered the factors in § 3553(a)(1) & (2),

including the nature of the crime and Jones’s history, the need

for the sentence to reflect the seriousness of Jones’s crime, the

need to deter, to protect the citizenry, and to give Jones care

or correctional treatment he may need, and the pertinent

guidelines range. See § 3553(a). Jones has not shown that the

district court abused its discretion because it departed on the

basis of legally unacceptable reasons or because the degree of

the departure was unreasonable. See Desselle, 450 F.3d at 182.

Jones has also failed to show that the sentence violates the

“proportionality principle” of 18 U.S.C. § 3553(a)(6) as he has

not presented evidence such as average sentences for similarly

situated defendants or a case in which a similarly situated

defendant received a lesser sentence. See Smith, 440 F.3d at

709.

AFFIRMED.