United States v. Jones

United States Court of Appeals
Fifth Circuit
F I L E D
In the June 15, 2007
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 06-30855
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

EARNEST JONES III,

Defendant-Appellant.

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Appeal from the United States District Court
for the Eastern District of Louisiana
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Before SMITH, BENAVIDES, and DENNIS, He appeals, claiming that the court based the
Circuit Judges. sentence on the inappropriate factor of his
lengthy arrest record. On plain error review,
JERRY E. SMITH, Circuit Judge: we affirm.

Earnest Jones III pleaded guilty, without a I.
plea agreement, to one count of possession of Jones was arrested while in possession of a
a firearm by a felon. He received a non-guide- firearm. He admitted that he was on probation
line sentence of 60 months, a departure of 23 for a conviction eleven days earlier in Louisi-
months from the top of his guideline range. ana state court of attempted possession with
intent to distribute crack cocaine, a felony. He your case, Mr. Jones. You have . . . engaged
also admitted to being aware that he had no in a long course of criminal conduct of using
right to own or possess a firearm. and carrying firearms and guns. . . . [Y]our
conduct when put on probation in state court
Jones’s base offense level under the guide- to commit another serious felony made eleven
lines was 20. After a three-level reduction for days later speaks volumes to me here as to the
acceptance of responsibility, his offense level need to give you a sentence above the
was 17. His criminal history included a juven- guidelines here in order to deter any future
ile conviction of illegal carrying weapons, and conduct on your behalf . . . and to protect the
the adult cocaine conviction. Two points were public; most importantly, to protect the public
added because the instant offense was com- from further crimes.”
mitted while Jones was on probation, resulting
in a criminal history category of III. The pre- Jones did not object following the court’s
sentence investigation report (“PSR”) correct- statement of reasons. He appeals, arguing that
ly calculated the guidelines range as 30-37 the court erred in considering his arrest record
months and recommended a sentence at the at sentencing. Jones acknowledges that he did
bottom of that range. Neither party objected not preserve the issue.
to the PSR.
II.
At the initial sentencing hearing, the district “[I]t is an incorrect application of the
court announced that it was “considering Guidelines for a district court to depart from
sentencing Mr. Jones above the guideline the applicable sentencing range based on a fac-
range in this case for certain reasons,” and it tor that the Commission has already fully
granted a continuance so both parties could considered in establishing the guideline range
submit memoranda. In its memo, the govern- or . . . on a factor that the Commission has ex-
ment did not argue for a sentence outside the pressly rejected as an appropriate ground for
range. departure.” Williams v. United States, 503
U.S. 200 (1992). This statement remains con-
At the final sentencing hearing, the court trolling law in this circuit even in the wake of
stated that Jones has “an extensive arrest rec- United States v. Booker, 543 U.S. 220 (2005).
ord here, although, none of these count for his See United States v. Jones, 444 F.3d 430, 434-
criminal history category. For someone who 37 (5th Cir.), cert. denied, 126 S. Ct. 2958
is only 18 or 19 years old to have this exten- (2006). Consideration of prior arrests by a
sive arrest record indicates to me that his crim- district court in sentencing is error. See id. at
inal history category probably or clearly 436; U.S.S.G. § 4A1.3. If Jones had
understates the significance of his past criminal preserved this error, we would likely review
conduct. . . . [P]articularly disturbing is the under the harmless error standard.1
fact that so many of [the arrests] involve Because Jones did not preserve, we review
violence, weapons, and you appear to have under United States v. Olano, 507 U.S. 725
some kind of fascination with guns.”

The court concluded that “a sentence out- 1
See Williams, 503 U.S. at 203; Jones, 444
side the guidelines range is clearly warranted in U.S. at 434-35 (questioning whether Williams
remains controlling after Booker).

2
(1993). That framework requires Jones to mand. More recently, in United States v. Vil-
show (1) there was error, (2) the error was legas, 404 F.3d 355, 364 (5th Cir. 2005), we
plain, (3) the error affected his “substantial used a subjective test that states that error
rights,” and (4) the error seriously affected affects substantial rights where there is a rea-
“the fairness, integrity or public reputation of sonable probability that, but for the error, the
judicial proceedings.” Id. at 732, 734. court would have imposed a lesser sentence.
In Jones, 444 F.3d at 438, we avoided this
The district court’s consideration, at sen- conflict, because we concluded that the defen-
tencing, of prior arrests was plain error. See dant had failed to show the error affected his
Jones, 444 F.3d at 436. Although the govern- substantial rights under either test.
ment argues that the court discussed Jones’s
arrests only in passing, that argument is belied As in Jones, we need not resolve this dis-
by the record. The court commented that parity. Assuming, arguendo, that there is a
Jones’s criminal history score inadequately re- reasonable probability that Jones’s sentence
flected his past conduct immediately following would have been less had the district court not
a review of Jones’s arrest record. considered his arrest record, the error did not
seriously affect the fairness, integrity, or public
The court’s conclusion that Jones was “en- reputation of judicial proceedings.
gaged in a long course of criminal conduct of
using and carrying firearms and guns” neces- Neither party disputed that Jones had a his-
sarily resulted from the court’s examination of tory with guns, and the court was “particularly
his past arrests for gun-related crimes; Jones disturbed” by Jones’s possession of a gun little
had only a single conviction for a gun-related more than a week after a state court felony
offense before the instant case. The court did conviction. The court engaged in a lengthy
not find that Jones actually committed the of- discussion of the defendant’s criminal history
fenses for which he was arrested, and com- and the offense characteristics, and it
mented only that it seemed unlikely that he addressed the arguments raised by defense
would have been arrested wrongfully so many counsel. Finally, the court sought to align
times. The plainly erroneous consideration of Jones’s sentence with similarly situated defen-
the arrest record was a factor in sentencing. dants, and it sentenced Jones in line with Unit-
ed States v. Smith, 440 F.3d 704 (5th Cir.
The remaining considerations are whether 2006), in which we upheld a larger departure
the error affected substantial rights and seri- to sixty months for a felon-in-possession
ously affected the fairness, integrity, or public charge. Our respect for the district court’s dil-
reputation of judicial proceedings. In Jones, igent effort at the sentencing hearing is not
we noted that this circuit has applied two dif- undermined by its unnecessary discussion of
ferent tests to determine whether an error in Jones’s arrest record.
sentencing affected substantial rights. See
Jones, 444 F.3d at 437. In United States v. The cases Jones cites to demonstrate that
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997), this sentencing error seriouslyaffected the fair-
we used an objective test, to the effect that er- ness, integrity or public reputation of judicial
ror affects substantial rights only if the district proceedings involve more egregious errors. In
court cannot impose the same sentence on re- United States v. Palmer, 456 F.3d 484, 491-92

3
(5th Cir. 2006), we reversed a guilty-plea
conviction where the facts stipulated did not
provide a factual basis to conclude that the
defendant had committed the charged offense
of possession of a firearm in furtherance of a
drug trafficking crime. In United States v.
Severin, No. 05-30332, 2006 U.S. App.
LEXIS 25386 (5th Cir. Oct. 11, 2006) (per
curiam) (unpublished), we vacated a sentence
where the court had incorrectly applied the
firearm enhancement under the sentencing
guidelines without a factual basis, resulting in
an incorrectly calculated sentencing range.
These errors go to the criminality of the
underlying conduct, not to the discretionary
decision of how lengthy a sentence is nec-
essary to provide adequate deterrence and pro-
tect the public.

The judgment of sentence is AFFIRMED.