United States Court of Appeals
For the Eighth Circuit
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No. 16-3958
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Walter Jones
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Waterloo
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Submitted: October 16, 2017
Filed: December 7, 2017
[Unpublished]
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Before SMITH, Chief Judge, GRUENDER and BENTON, Circuit Judges.
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PER CURIAM.
Walter Jones appeals his 27-month sentence imposed following his plea of
guilty to being an unlawful drug user in possession of a firearm. Jones contends that
the district court1 erred in applying a four-level sentencing enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm in connection with another felony
offense. Specifically, Jones argues that the enhancement impermissibly double
counted his offense conduct and violates the Ex Post Facto Clause of the United
States Constitution. He also argues that his sentence is substantively unreasonable.
We affirm.
I. Background
Jones pleaded guilty to being an unlawful drug user in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(3). The presentence investigation report (PSR)
recommended a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B), which
provides that “[i]f the defendant . . . used or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred any firearm or
ammunition with knowledge, intent, or reason to believe that it would be used or
possessed in connection with another felony offense, increase by 4 levels.” The PSR
found that Jones “possessed the firearm in connection with the felony offense of
Carrying Weapons, in violation of Iowa Code Section 724.4(1).” Presentence
Investigation Report at 5, ¶ 11, United States v. Jones, No. 6:11-cr-02014-LRR-2
(N.D. Iowa July 29, 2016), ECF No. 153. According to the PSR, “[t]he parties agreed
to litigate whether a 4-level increase applies pursuant to USSG § 2K2.1(b)(6)(B).” Id.
at 3, ¶ 3B.
In his sentencing memorandum, Jones argued that application of the
enhancement would constitute impermissible double counting and would violate the
Ex Post Facto Clause. Sentencing Memorandum By Defendant at 1–2, United States
v. Jones, No. 6:11-cr-02014-LRR-2 (N.D. Iowa Aug. 25, 2016), ECF No. 159.
Specifically, Jones argued that United States v. Walker, 771 F.3d 449 (8th Cir. 2014),
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
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“was wrongly decided and is in fact double counting as the holding scores the offense
and the integrated offense of Carrying Weapons in violation of Iowa Code § 724.4(1)
as an enhancement within the USSG.” Id. at 1. Furthermore, Jones argued that
“Walker now in 2016 provides a more severe punishment than the USSG did for the
defendant back in 2011.” Id. at 2. Jones asserted that “Walker has the force and effect
of any law and as such is a violation of the Ex Post Facto Clause to [him].” Id. at 4.
Jones also requested a downward variance under 18 U.S.C. § 3553(a).
At the sentencing hearing, the district court applied Walker and discerned no
ex post facto violation. The court adopted the PSR’s Guidelines range of 21 to 27
months’ imprisonment. The district court sentenced Jones to 27 months’
imprisonment. In arriving at this sentence, the district court stated that it had
“carefully considered each and every factor under 18 United States Code section
3553(a).” Transcript of Sentencing at 19, United States v. Jones, No.
6:11-cr-02014-LRR-2 (N.D. Iowa Oct. 4, 2016), ECF No. 175. It also acknowledged
Jones’s argument for a downward variance and explained why it declined to vary
downward. Specifically, it found no unwarranted disparity between Jones and his
codefendant Asa Adams. Adams had received a sentence of 16 months’
imprisonment. The court noted important distinctions between the two cases. Unlike
Adams, the court found that Jones had prior criminal convictions for domestic
violence and possession of marijuana. Additionally, unlike Adams, who “came to
court and took responsibility for his actions,” id. at 20, “Jones was a fugitive from
justice” who “knew for sure that there was a federal matter that he needed to respond
to,” yet declined to do so and went “on the lam . . . putting the marshals to extra time
and expense to track him down.” Id. at 21. Further, the court noted that although
Adams initially received a lower sentence, his sentence increased due to subsequent
violations of supervised release. In fact, Adams has actually served significantly more
time than the sentence imposed upon Jones.
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As to Jones’s employment history, the court noted that, contrary to Jones’s
claims of continued employment, social security records showed no earnings “for
2007, 2011, 2013, 2014, and 2015. He has $4,994 of earnings reported in 2012, but
he hasn’t reported any work during that period.” Id. at 22. As a result, the court found
“a real disconnect between what he says he’s been doing and what the objective
records show.” Id. Finally, the court considered Jones’s education, history of
marijuana abuse, and family support before imposing the 27-month sentence.
The district court
add[ed] parenthetically that in the event the Eighth Circuit Court of
Appeals should find in the future that [the court] ha[s] incorrectly scored
the four-level [enhancement] . . . , [the] sentence would be exactly the
same when [the court] view[s] the aggravating factors, the fugitive status
of Mr. Jones, and the facts and circumstances in the offense conduct
paragraph 5 as well as his criminal history.
Id. at 24–25.
II. Discussion
On appeal, Jones argues that the district court’s application of the four-level
sentencing enhancement under U.S.S.G. § 2K2.1(b)(6)(B) for possessing a firearm
in connection with another felony offense constitutes impermissible double counting
and violates the Ex Post Facto Clause of the United States Constitution. He also
argues that his sentence is substantively unreasonable.
A. U.S.S.G. § 2K2.1(b)(6)(B)
We first address Jones’s argument that the district court erred in applying the
four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) to his state conviction for
carrying weapons, in violation of Iowa Code § 724.4(1), because it constitutes double
counting.
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“We review the district court’s construction and application of the sentencing
guidelines de novo, and we review its factual findings regarding enhancements for
clear error.” United States v. Cordy, 560 F.3d 808, 817 (8th Cir. 2009). “We review
de novo whether the district court’s application of the sentencing guidelines amounts
to impermissible double counting.” United States v. Peck, 496 F.3d 885, 890 (8th Cir.
2007).
The Guidelines provide that the four-level enhancement at issue is warranted
“[i]f the defendant . . . used or possessed any firearm or ammunition in connection
with another felony offense; or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it would be used or possessed in
connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). “Another felony
offense” is defined as “any Federal, state, or local offense, other than the explosive
or firearms possession or trafficking offense, punishable by imprisonment for a term
exceeding one year, regardless of whether a criminal charge was brought, or a
conviction obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C).
In Walker, the defendant was convicted of being a felon in possession of a
firearm. 771 F.3d at 450. The defendant’s PSR recommended application of the four-
level enhancement under § 2K2.1(b)(6)(B). Id. at 451. At sentencing, the government
argued that the defendant’s conduct “violated Iowa Code § 724.4(1), an aggravated
misdemeanor that qualifies as ‘another felony offense’ because it is punishable by
imprisonment for up to two years.” Id. The district court imposed the enhancement,
and the defendant appealed. Id. We upheld the imposition of the enhancement,
rejecting the argument that the application of the enhancement constitutes double
counting:
[The defendant] was not “doomed to automatically commit the
additional felony when he violated 18 U.S.C. § 922(g) by possessing a
firearm as a felon.” [United States v. Jackson, 633 F.3d 703, 707 (8th
Cir. 2011).] Iowa Code § 724.4(1), unlike 18 U.S.C. § 922(g), requires
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proof that the defendant went armed “with a dangerous weapon
concealed on or about the person,” or went armed with a handgun
“within the limits of any city,” or “knowingly carrie[d] or transport[ed]
[a handgun] in a vehicle.” (Emphasis added). Thus, § 724.4(1) does not
fall within the narrow Note 14(C) exclusion for “the . . . firearms
possession . . . offense” (emphasis added), and applying the four-level
enhancement in U.S.S.G. § 2K2.1(b)(6) does not implicate the “double
counting” concerns underlying our decision in [United States v.]
Lindquist, 421 F.3d [751,] 756 [(8th Cir. 2005)]. Rather, [the defendant]
“used . . . [the] firearm . . . in connection with another felony offense”
when he was involved in the shooting at 1405 Idaho Street. Therefore,
the district court did not err in imposing the four-level enhancement.
Id. at 452–53 (third, fourth, fifth, and tenth alterations in original) (ellipses in
original).
We have repeatedly reaffirmed our holding in Walker and rejected the
argument that application of the enhancement to Iowa Code § 724.4(1) constitutes
double counting. See, e.g., United States v. Maldonado, 864 F.3d 893, 901 (8th Cir.
2017); United States v. Parrow, 844 F.3d 801, 804 (8th Cir. 2016) (per curiam);
United States v. Hicks, 668 F. App’x 683, 685 (8th Cir. 2016) (per curiam); United
States v. Davis, 667 F. App’x 584, 585 (8th Cir. 2016) (per curiam).
Jones next argues that imposition of the four-level enhancement violates the
Ex Post Facto Clause because Walker became circuit law after he committed the
underlying offense. Jones is incorrect. “The ex post facto clause does not apply to
actions by the judiciary . . . .” United States v. Wade, 435 F.3d 829, 832 (8th Cir.
2006) (per curiam).
Accordingly, we hold that the district court did not err in applying the four-
level enhancement.
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B. Substantive Reasonableness
Jones argues that the district court imposed an unreasonable sentence in light
of all the 18 U.S.C. § 3553(a) factors, including the need for his punishment to be in
proportion to that of his codefendant, who received a more lenient sentence of 16
months’ imprisonment.
Because Jones’s 27-month sentence is within the Guidelines range, we may
apply “a presumption of reasonableness” to his sentence. United States v. Bauer,
626 F.3d 1004, 1010 (8th Cir. 2010). Jones must rebut this presumption. Peck, 496
F.3d at 891.
The record shows that the district court carefully considered all of the
§ 3553(a) factors in arriving at Jones’s Guidelines sentence. The court considered
Jones’s argument that his sentence created an unwarranted sentencing disparity
between himself and his codefendant and rejected it, finding meaningful distinctions
between the two defendants’ cases. The court individually assessed Jones’s case
based on its particular facts. On this record, we conclude that the 27-month sentence
is not unreasonable. See United States v. Stults, 575 F.3d 834, 849 (8th Cir. 2009)
(“Where the district court in imposing a sentence makes ‘an individualized
assessment based on the facts presented,’ addressing the defendant’s proffered
information in its consideration of the § 3553(a) factors, such sentence is not
unreasonable.” (quoting Gall v. United States, 552 U.S. 38, 50 (2007))).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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