United States v. Jones

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit
FOR THE FIFTH CIRCUIT
FILED
April 13, 2007

Nos. 06-30535, 06-30563 Charles R. Fulbruge III
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus

NYRON JONES,

Defendant-Appellant.

--------------------
Appeals from the United States District Court
for the Eastern District of Louisiana
--------------------

Before GARWOOD, WIENER, and CLEMENT, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant Nyron Jones was convicted by a jury of

unlawful possession of a firearm by a convicted felon. Jones

grounds his appeal of this conviction in the assertedly erroneous

ruling of the district court that allowed the government to

introduce evidence of a prior conviction for the same crime

committed under circumstances virtually identical to those alleged

in this case.

Also, at the time of his arrest, Jones was serving a term of

supervised release related to his prior firearms conviction and

thus was subject to revocation of release and reimprisonment
(“revocation sentence”) for violating the terms of his release.

Jones received the statutory maximum two-year revocation sentence,

which he now appeals as unreasonable.

I. FACTS & PROCEEDINGS

In 2002, a New Orleans police officer saw Jones remove a

handgun from his front waistband and place it under a house.

Jones, who had an earlier felony conviction for robbery, was

arrested and subsequently charged with unlawful possession of a

firearm by a convicted felon under 18 U.S.C. § 922(g)(1). He

pleaded guilty and was sentenced to 33 months of imprisonment and

three years of supervised release.

Only four months into his supervised release following his

completion of that term of imprisonment, Jones was again arrested

and again charged with being a felon in possession of a firearm

under 18 U.S.C. § 922(g)(1). At Jones’s trial on this second

firearms charge, New Orleans Police Detective Brian Pollard

testified that, while in a police car on a night patrol, he saw

Jones adjust an object in his front waistband. Suspecting that

object to be a firearm, Detective Pollard got out of the patrol car

and approached Jones, who, according to Detective Pollard, fled

into an alley between two houses. Detective Pollard testified that

he followed Jones into the alley and saw him remove an object from

his waistband and toss it under one of the houses. Shortly

2
thereafter, Detective Pollard recovered a handgun from underneath

that house.

Jones’s cousin, Keva Peters, was present when Jones was

arrested. At Jones’s trial, Peters contradicted Detective

Pollard’s testimony, stating that he and Jones were standing on the

porch of a house when Detective Pollard approached, and that Jones

was questioned and detained in that area but never went into the

alley between the two houses. Peters also testified that he saw

Detective Pollard go into the alley after Jones had been placed in

police custody and return with a firearm.

Even though Jones stipulated to his convicted-felon status,

the government filed a motion to introduce the factual basis from

Jones’s prior firearm offense. After hearing opening statements

and some of the testimony, the district court granted the

government’s motion. At the conclusion of a two-day jury trial,

Jones was convicted as charged.

At sentencing, the court imposed a term of 78 months

imprisonment, expressing several reasons for its decision to

sentence Jones above the advisory Sentencing Guidelines range of 33

to 41 months. The court specifically noted that Jones had been

convicted of precisely the same offense just a few years earlier

and had been out on supervised release for only four months when he

was arrested for this repetition of the same crime.

3
 In a separate proceeding after Jones was sentenced, a

different district judge, the one who was continuing to oversee

Jones’s earlier felon-in-possession case, revoked his supervised

release and imposed the statutory maximum revocation sentence of

two years imprisonment, to be served consecutively to his new

sentence for firearm possession. This revocation sentence of 24

months represented an upward variance from the Guidelines range of

6-12 months for such a supervised release violation. In imposing

the maximum revocation sentence, the supervising district judge

noted, inter alia, that the new conviction that produced the

revocation of Jones’s supervised release involved the same conduct

for which Jones had been convicted previously and that the new

firearms violation occurred only four months into the term of

supervised release for the old one.

II. ANALYSIS

A. Rule 404(b) Evidence1
1. Standard of Review

We review evidentiary rulings for abuse of discretion.2 In a

criminal case, however, Rule 404(b) evidence must “be strictly

relevant to the particular offense charged.”3

1
Fed. R. Evid. 404(b).
2
United States v. Yi, 460 F.3d 623, 631 (5th Cir. 2006).
3
Id. (quoting United States v. Hernandez-Guevara, 162 F.3d
863, 869 (5th Cir. 1998)).

4
 2. Applicable Law

“Relevant evidence” is that “having any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”4 “All relevant evidence is admissible,

except as otherwise provided.”5 Even relevant evidence, however,

“may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence.”6

“Evidence of other crimes, wrongs, or acts is not admissible to

prove the character of a person in order to show action in

conformity therewith,” and may only be admitted for legitimate non-

character purposes such as “proof of motive, opportunity, intent,

preparation, plan, knowledge, identity, or absence of mistake or

accident.”7

In United States v. Beechum, we established that evidence of

prior crimes is not admissible in criminal cases unless (1) it is

relevant to an issue other than the defendant’s character or his

4
Fed. R. Evid. 401.
5
Fed. R. Evid. 402.
6
Fed. R. Evid. 403.
7
Fed. R. Evid. 404(b).

5
propensity to act in accordance therewith, and (2) its incremental

probative value is not substantially outweighed by the danger of

unfair prejudice to the defendant.8 Beechum and its progeny inform

our decision today.

3. Merits

Jones contends that evidence of his prior firearms crime

offends both prongs of the Beechum test, because (1) its only

relevance is to prove his propensity to possess firearms illegally,

an impermissible purpose under Rule 404(b), and (2) its probative

value is outweighed by its unfairly prejudicial impact. The

government counters that (1) evidence of Jones’s prior firearms

offense is probative of knowledge, intent, and absence of mistake

or accident, which are material facts unrelated to Jones’s

propensity to possess firearms illegally, and (2) the probative

value of that evidence outweighs any unfairly prejudicial effect.

a. Relevance

Jones does not dispute that evidence of his prior unlawful

firearm possession meets Rule 401's general definition of relevant

evidence, at least to the extent that a criminal defendant’s prior

offense makes it more likely that he would commit the same crime

again. Jones nevertheless insists that, in this case, the prior-

crimes evidence only serves to prove his propensity to carry

8
582 F.2d 898, 911 (5th Cir. 1978)(en banc).

6
firearms and has no relevance to any other fact “of consequence to

the determination of the action” against him.9

i. The District Court’s Reasoning

At the moment of his apprehension, Jones did not physically

control the firearm he was charged with unlawfully possessing,

i.e., it was not on his person when he was taken into custody.

According to the government, this fact makes evidence of his prior

firearm-possession conviction relevant to (1) show that he had

knowingly and intentionally possessed the gun that was found under

the house only minutes later, and (2) disprove any claim of

accidental or mistaken possession or rebut a “mere presence”

defense. The trial court agreed, recognizing that “the government

will have to prove beyond a reasonable doubt that Jones, among

other things, knowingly possessed a firearm.” The court reasoned

that the government “may prove this element [knowledge] by offering

evidence of defendant’s prior conviction for possession of a

firearm in a similar situation which tends to show that he was in

knowing possession of the gun.”

The trial court went further, however, and speculated that

“because the detective did not find the gun on Jones’s person,” the

government might need to (1) prove “constructive possession,” which

would require it to show Jones’s knowledge of the presence of the

9
See Fed. R. Evid. 401.

7
firearm under the house and his intent to exercise dominion or

control over the gun, or (2) rebut the defense that Jones was

“simply in the ‘mere presence’ of the firearm, should the jury

discredit the detective’s testimony that he saw Jones’s [sic]

remove an item from his waistband and place it under the house.”10

ii. “Actual” or “Constructive” Possession

The government can prove possession by showing that a

defendant exercised either direct physical control over a thing

(actual possession) or “dominion or control” over the thing itself

or the area in which it was found (constructive possession).11

Jones insists that, because Detective Pollard claimed to have seen

him remove something from his waistband and dispose of it in the

spot where a firearm was later found, his was exclusively an actual

10
At the time the district court made its 404(b) ruling,
Keva Peters had not testified, and Jones had not otherwise denied
being present in the area from which the gun was recovered. The
record makes clear, however, that Jones never asserted a “mere
presence” defense, and the court never issued a “mere presence”
instruction to the jury.
11
See United States v. Munoz, 150 F.3d 401, 416 (5th Cir.
1998)(“Actual possession means the defendant knowingly has direct
physical control over a thing at a given time.”); United States
v. De Leon, 170 F.3d 494, 496 (5th Cir.1999)(“Constructive
possession is the ownership, dominion or control over an illegal
item itself or dominion or control over the premises in which the
item is found.”)(citations omitted). Constructive possession may
also be proven by showing that contraband was in the direct
physical possession of a person over whom a defendant exercised
control. See, e.g., United States v. Willis, 6 F.3d 257, 262
(5th Cir. 1993) overruled on other grounds by Bailey v. United
States, 516 U.S. 137 (1995).

8
possession case. The district court nevertheless concluded that,

because Detective Pollard’s testimony was arguably suspect, the

government might have to offer evidence in support of the

alternative theory that Jones constructively possessed the firearm

found under the house. This formed the basis of the court’s ruling

that evidence of Jones’s prior crime was admissible to show the

knowledge and intent elements of constructive possession, even

though they are not separate elements of actual possession.

In constructive possession cases, knowledge and intent are

frequently at issue. A defendant will often deny any knowledge of

a thing found in an area that is under his control (e.g, a

residence, an automobile) or claim that it was placed there by

accident or mistake. The government then must offer evidence to

prove that the defendant (1) knew that the thing was present, and

(2) intended to exercised dominion or control over it.

In contrast, the only knowledge that the government must show

in an actual possession prosecution is the defendant’s awareness

that (1) he physically possesses the thing, and (2) the thing he

possesses is contraband.12 Intent is not an element of actual

possession under § 922.13 More to the point in this firearms case,

12
See United States v. Linares, 367 F.3d 941, 946-47 (D.C.
Cir. 2004).
13
See id. at 948.

9
once the government has shown that the defendant had a firearm

under his immediate physical control, any contention that he did

not know the nature of what he possessed is effectively precluded.14

Jones insists that, as his is exclusively an actual possession

case, the district court erred in allowing the 404(b) evidence to

prove his knowledge or intent. We agree. Two cases from the D.C.

Circuit are illustrative of our reasoning on this issue.

In United States v. Linares, the defendant was prosecuted for

firearms possession on the basis of three eyewitness accounts of

his having wielded and fired a handgun, and then tossed it away.15

The district court allowed the government to offer evidence of

Linares’s prior conviction for firearms possession as proof of

“intent, knowledge, and absence of mistake.”16 In appealing his

conviction, Linares insisted (as Jones does here) that, because his

was exclusively an actual possession case, such evidence had no

probative value on any of those issues.17 The D.C. Circuit agreed

with Linares and reversed his conviction, reasoning that, because

the government’s evidence consisted entirely of eyewitness accounts

of actual possession, the jury could find either actual possession

14
See id. at 947.
15
Id. at 943-45.
16
Id. at 946.
17
Id.

10
or no possession, but that “no reasonable jury could have concluded

that the defendant possessed a firearm either unknowingly or

mistakenly.”18

The facts of Jones’s case are quite similar to those in

Linares and leave no doubt that his is exclusively an actual

possession case. The prosecution’s only substantive fact witness,

Detective Pollard, testified that both (1) his initial suspicion

that Jones had a gun and (2) his ultimate discovery of the firearm

under the house were prompted by his contemporaneous observations

of Jones’s actual possession of an object later determined to be a

firearm. As in Linares, if the jury believed Detective Pollard’s

testimony in toto, the government would have established, albeit

circumstantially, Jones’s direct physical control of the firearm.

The district court nevertheless anticipated the possibility

that, because Jones’s arrest occurred at night in a poorly lit

area, the jury might discredit the accuracy of some of Detective

Pollard’s observations but credit the accuracy of others. This

possibility, the district court reasoned, could compel the

government to present evidence supporting an alternative basis for

conviction: Jones’s constructive possession of the firearm found

under the house. (At this juncture, we note that the record is

devoid of evidence that Jones owned, rented, or occupied the house

18
Id. at 950.

11
or had any relationship with it whatsoever that could conceivably

support the dominion or control needed in a constructive possession

case.)

Linares involved three eyewitnesses to actual possession

(including a passenger in the car that the defendant was driving

while he fired the gun) and little if any question of the

reliability of those observations. The D.C. Circuit rejected the

government’s concern that “a jury that credited some of the

government’s evidence and some of [the defendant’s] testimony might

have concluded beyond a reasonable doubt that [defendant]

constructively possessed the weapon.”19 The Linares court concluded

that, given the defendant’s unconditional denial of any possession

and the government’s evidence of actual possession only, the jury

could find either actual possession or no possession, but never

constructive possession.20

Although Jones’s case differs from Linares in some respects,

we reach the same conclusion as did the D.C. Circuit. Keva Peters

testified that Jones did not have a gun and did not go into the

alley by the house where the gun was recovered. Detective Pollard

testified that he saw Jones go into the alley and throw something

under the house where the gun was later found. As this was the

19
Id. at 948.
20
Id.

12
extent of the material evidence presented, the jury could have

either believed Detective Pollard and found actual possession or

believed Peters and found no possession. As in Linares, the

conflicting versions of events (devoid of any evidence of dominion

or control by Jones over the alleged location of the gun) make

illogical any contention that, as a third alternative to actual

possession or no possession, a jury might somehow find constructive

possession by believing some (but not all) of Detective Pollard’s

testimony and some (but not all) of Peters’s testimony.

The government doggedly insists, though, that it is at least

theoretically plausible that the jury could have found constructive

possession if it disbelieved all of Peters’s testimony and believed

some, but not all, of Detective Pollard’s testimony. We think not.

In United States v. Garner,21 a subsequent D.C. Circuit case

relied on by the government and the district court, an officer

testified that he looked through a darkly tinted car window and saw

the defendant place a firearm under his seat. The trial court

allowed the government to introduce 404(b) evidence of the

defendant’s prior firearm offense to prove the knowledge and intent

elements of constructive possession in the event that the jury

discredited as unreliable the officer’s observations of the

defendant’s actual possession made through the heavily tinted

21
396 F.3d 438, 439 (D.C. Cir. 2005).

13
window.22 As in this case, the government primarily relied on the

officer’s testimony at trial, and the defendant argued on appeal

that evidence of his prior crime was not relevant to his actual

possession case.

In Garner, the appellate court affirmed, holding that, even

though the government relied almost exclusively on the officer’s

testimony of the defendant’s actual possession of the firearm,

. . . unlike in Linares, the trial evidence here, at the
time the district court ruled on [the 404(b) evidence],
did not force the jury to a disjunctive choice between
actual possession or no possession at all. At the time
the district court admitted [the 404(b) evidence], it
could reasonably have believed the jury might discredit
[the officer’s] testimony (based on his observations
through a tinted window and smoke-filled compartment) and
nevertheless convict Garner based on the undisputed
testimony that the gun was found under Garner’s seat when
the car was searched. In that event, the jury would have
faced a paradigmatic constructive possession scenario in
which contraband (here, a firearm) is found in proximity
to a defendant who may or may not have been “‘knowingly
in a position to, or [have] had the right to exercise
“dominion or control” over the [contraband].’”23

The D.C. Circuit concluded that, without the officer’s testimony,

the key facts (a firearm found under passenger’s seat) presented

“‘a classic case for introducing prior instances of gun possession,

22
Id. at 440.
23
Id. at 442-43 (quoting United States v. Jenkins, 981 F.2d
1281, 1283 (D.C. Cir. 1982)).

14
since the government would otherwise find it extremely difficult to

prove that the charged possession was knowing.’”24

Jones’s case is similar to Garner’s in some respects, but it

differs from it in at least one crucial respect. If, in the

instant case, the jury were to discredit Detective Pollard’s

observations of Jones’s actual possession yet believe that the

officer followed a fleeing Jones into the alley, the credited facts

would present neither “a paradigmatic constructive possession

scenario” (contraband found under defendant’s seat in a car) nor a

“classic case” for introducing 404(b) evidence. Instead, the jury

would be left with the picture of a man walking, running, or

standing next to a house that he did not own, rent, occupy, or

otherwise exercise any dominion over, underneath which a gun just

happened to be found. Without significantly more, such facts

simply cannot support a finding of constructive possession.

This case shares some key factual elements with Linares and

shares others with Garner, a pair of cases from the same court that

produced opposite holdings on the question of the relevance of

404(b) evidence. Nevertheless, given the fundamental difference

between the picture painted by the evidence here and those that

emerge in the vast majority of constructive possession cases, we

conclude that (1) Jones’s was exclusively an actual possession case

24
Id. (quoting Linares,367 F.3d at 949).

15
(albeit one based on circumstantial evidence), and (2) evidence of

Jones’s prior crime was not relevant to proving actual possession.

b. Rule 403 Balancing

As we have concluded that the 404(b) evidence in this case was

not relevant to prove the government’s actual possession case

against Jones, we need not proceed to the second step of the

Beechum analysis, i.e., determining whether the probative value of

that evidence outweighed its unfairly prejudicial impact.25

B. Jones’s Revocation Sentence

As Jones was arrested and charged with unlawful possession of

a firearm while serving a term of supervised release imposed

following his guilty-plea conviction on the very same charge, he

was subject to revocation of supervised release and reimprisonment.

It was only after he was sentenced in the instant case that the

district judge who had presided over Jones’s first felon-in-

possession conviction revoked his supervised release, imposed the

statutory maximum two-year term of imprisonment, and ordered that

it be served consecutively to his new firearms-possession sentence.

Jones insists that this revocation sentence was unreasonable,

as the judge who imposed it justified exceeding the advisory

Guidelines range of 6-12 months26 for the same reasons that the

25
Beechum, 582 F.2d at 911.
26
See U.S.S.G. § 7B1.4.

16
district judge in the instant firearms-possession case gave for his

upward variance from the Guidelines range. Jones argues that, for

this reason, the non-Guidelines revocation sentence amounts to

double punishment for the same conduct. We disagree.

1. Standard of Review

Prior to the Supreme Court’s decision in United States v.

Booker,27 the accepted standard of review for revocation sentences

in this Circuit was well-established. As there were “no applicable

guidelines for sentencing after revocation of supervised release,”

a revocation sentence would be upheld unless it was “in violation

of the law or plainly unreasonable.”28 This “plainly unreasonable”

review has its origin in 18 U.S.C. § 3742(e)(4).29

Jones asserts, however, that Booker totally invalidated §

3742(e) and, by making the Sentencing Guidelines advisory in its

entirety, (1) eliminated the difference between Guidelines and

advisory policy statements (such as those pertaining to revocation

sentences) and (2) established a “reasonableness” standard of

review for all criminal sentences, including revocation sentences.

27
543 U.S. 220 (2005).
28
United States v. Gonzales, 250 F.3d 923, 925 (5th Cir.
2001).
29
The statute states: “Upon review of the record, the court
of appeals shall determine whether the sentence . . . was imposed
for an offense for which there is no applicable sentencing
guideline and is plainly unreasonable.”

17
 There is a division among the circuits as to whether to

continue reviewing revocation sentences under the “plainly

unreasonable” standard or to adopt Booker’s “reasonableness”

standard across the board.30 Other courts of appeal have held that

the two standards are functionally the same.31 These courts point

out that Booker cites, as examples of “reasonableness” review,

several cases in which courts actually applied the § 3742(e)(4)

“plainly unreasonable” standard.32

30
See United States v. Fleming, 397 F.3d 95, 99 (2nd Cir.
2005)(adopting a “reasonableness” standard); United States v.
Miqbel, 444 F.3d 1173, 1176 n.5 (9th Cir. 2006)(same); United
States v. Crudup, 461 F.3d 433, 437 n.5 (4th Cir.
2006)(maintaining “plainly unreasonable” review).
31
See, e.g., United States v. Sweeting, 437 F.3d 1105,
1106-07 (11th Cir. 2006); United States v. Tedford, 405 F.3d
1159, 1161 (10th Cir.2005); United States v. Cotton, 399 F.3d
913, 916 (8th Cir.2005).
32
See Booker, 543 U.S. at 262. The Booker Court expressly
addressed this point:

“Reasonableness” standards are not foreign to
sentencing law. The Act has long required their use in
important sentencing circumstances-both on review of
departures, see 18 U.S.C. § 3742(e)(3) (1994 ed.), and
on review of sentences imposed where there was no
applicable Guideline, see §§ 3742(a)(4), (b)(4),
(e)(4).

Id. (emphasis added).

18
 We have yet to address the issue squarely,33 but we need not

do so today to resolve this case. This is because Jones made no

objection to his revocation sentence in the district court, so it

is subject only to plain error review on appeal. As such, his

revocation sentence must be upheld unless we conclude that “there

is (1) error, (2) that is plain, and (3) that affects substantial

rights. . . [and] (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.”34 We do

not come to that conclusion.

2. Applicable Law

The statutory maximum term of imprisonment for possession of

a firearm by a convicted felon is ten years,35 making that offense

a Class C felony.36 A defendant convicted of a Class C felony who

subsequently violates the terms of his supervised release may be

reimprisoned for no more than two years.37 The advisory policy

statements in section 7B1.4 of the Sentencing Guidelines, however,

recommend a revocation sentence of 6-12 months for Class C felons

33
See United States v. Hinson, 429 F.3d 114, 119-20 (5th
Cir. 2005).
34
United States v. Mares, 402 F.3d 511, 520 (5th Cir.
2005)(internal quotation marks and citation omitted).
35
18 U.S.C. § 924(a)(2).
36
18 U.S.C. § 3559(a).
37
18 U.S.C. § 3583(e)(3).

19
in Jones’s Criminal History Category (IV). Section 7B1.3(f) of the

Guidelines states that,

[a]ny term of imprisonment imposed upon the revocation of
probation or supervised release shall be ordered to be
served consecutively to any sentence of imprisonment that
the defendant is serving, whether or not the sentence of
imprisonment being served resulted from the conduct that
is the basis of the revocation of probation or supervised
release.

3. Merits

The record dispels any question that the re-sentencing court

erred in imposing Jones’s revocation sentence. As the foregoing

section shows, the revocation sentence itself, its duration, and

its being made to run consecutively, are explicitly authorized by

law. Moreover, even before Booker, the policy statements in §

7B1.4 of the Sentencing Guidelines were recognized as advisory

only,38 and the record reflects that the re-sentencing judge

considered but rejected those policy statements for reasons

detailed in his sentencing colloquy. We are satisfied that he

committed no legal error in imposing the non-Guidelines revocation

sentence.

In fact, Jones does not allege error; he merely challenges the

“reasonableness” of the revocation sentence, because the re-

sentencing judge justified imposing the statutory maximum

38
See Unites States v. Mathena, 23 F.3d 87, 91 (5th Cir.
1994).

20
revocation sentence for some of the same reasons given by the judge

in the instant case for imposing an above-Guidelines sentence.

Although the re-sentencing judge does appear to have imposed the

maximum revocation sentence in partial reliance on some of the

same reasons verbalized by the judge who imposed an above-

Guidelines sentence in the instant case, the revocation sentencing

colloquy reveals numerous additional bases for the re-sentencing

judge’s decision. We are satisfied that the re-sentencing court

did not plainly err in deciding to impose the statutory maximum

revocation sentence.

That said, however, we recognize that our vacatur of Jones’s

firearm possession conviction at least arguably may have nullified

the re-sentencing judge’s primary basis for imposing the maximum

revocation sentence that it did and for making it run consecutively

to this one. The law is clear that the violative conduct

warranting revocation of supervised release and reimprisonment

“need not be criminal and need only be found by a judge under a

preponderance of the evidence standard, not by a jury beyond a

reasonable doubt.”39 We nevertheless think it prudent to remand

this matter to the court that handed down the revocation sentence

based in large part on the conviction we now vacate and remand, so

39
See Hinson, 429 F.3d at 119.

21
that the underlying basis for Jones’s revocation sentence may be

reconsidered and clarified.

III. CONCLUSION

We hold that the district court abused its discretion in

allowing the government to introduce evidence of Jones’s prior

firearm offense. We accordingly VACATE Jones’s conviction and

sentence for possession of a firearm by a convicted felon, and

REMAND for further proceedings consistent with this opinion.

We hold that Jones’s revocation sentence was not plainly

erroneous, but we nevertheless REMAND to the re-sentencing court

for reconsideration in light of our vacatur of Jones’s subsequent

conviction and sentence for unlawful possession of a firearm.

VACATED in part and REMANDED.

22