US v. Torrence Jones

Filing 920090702

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4854 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRENCE RONZAY JONES, a/k/a Tee, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:07-cr-00029-D-1) Submitted: June 3, 2009 Decided: July 2, 2009 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Jude Darrow, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Anne M. Hayes, Jennifer P. May-Parker, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Torrence guilty plea and Ronzay sentence and Jones on appeals one in his conviction of on a to count conspiracy of 21 distribute 846 cocaine marijuana, One), and 5 violation U.S.C. to and (2006) (Count possession grams of with cocaine intent base, distribute cocaine, more than marijuana, and aiding and abetting, in violation of 21 U.S.C. 841(a)(1) (2006), 18 U.S.C. 2 (2006) (Count Five). At the sentencing hearing, the district court determined that Jones' advisory guidelines range was 92 to 115 months' imprisonment. The district court granted the Government's motion for upward departure, ("USSG") history pursuant 4A1.3 to U.S. on Sentencing the bases the Guidelines Jones' Manual criminal of his (2007), that category under-represented seriousness criminal history and the likelihood that he would commit future crimes, and the Government's motion for downward departure, pursuant to USSG 5K1.1. history categories, range from of The court departed upward two criminal category to of 150 IV to VI, resulting then in an imprisonment downward, Following 3553(a) statement, in 120 months, and departed consideration Jones' of substantial applicable of assistance. 18 U.S.C. Jones' thorough (2006) the consideration factors, the in the arguments the counsel, information pre-sentence investigation 2 report, and the applicable statutory and constitutional factors, 1 the district court imposed concurrent 132-month terms of imprisonment and concurrent three-year and five-year terms of supervised release. upward departure, 2 Jones appeals from the district court's claiming that the departure constituted a clear abuse of discretion. 3 Jones asserts We affirm. the district court abused its that discretion in sentencing him, claiming the court fashioned a sentence to correct a Government charging error. Specifically, he claims the Government's failure to specify the time frame for the conspiracy resulted in its inability to have Jones sentenced as a career offender, and that the basis for the Government's motion for upward departure was to remedy its charging decision. Jones asserts that a lesser sentence of 92 months would have been sufficient to meet the desired goals of 3553. 1 Finally, In addition to stating in open court the reasons for the sentence imposed, the district court issued a written order reiterating its sentencing rationale. Both the district court's statements at sentencing, and its written order, demonstrate that it made particularized and individual findings relating to Jones, which reasons supported its chosen sentence. See United States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009); Rita v. United States, 127 S. Ct. 2456, 2468 (2007). The net upward departure, from the originally calculated range of 92 to 115 months, was 17 months above the guidelines range. As Jones reserved the right to appeal from a sentence in excess of the applicable advisory guidelines range, there is no issue of waiver in this case. 3 2 3 he contends that the district court's use of criminal history outside the presumed period of the conspiracy in determining his advisory based on guideline the range, coupled with its upward in departure same convictions, resulted inappropriate "double-counting." 4 We review departure sentences, "whether inside, just outside, or significantly outside the Guidelines range" under a "deferential abuse-of-discretion standard." Gall v. United States, 128 S. Ct. 586, 591 (2007); United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert. denied, 129 S. Ct. 476 (2008). An upward departure from the applicable guidelines sentencing range is warranted when a defendant's criminal history category is inadequate to reflect either the seriousness of the defendant's criminal history or the likelihood of recidivism. USSG 4A1.3(a)(1), p.s. A district court "may reject a sentence within the advisory Guidelines range because `the case at hand falls outside the "heartland"' to which the individual Guidelines apply or because a sentence within the Guidelines fails to reflect the other 3553(a) factors or `because the Jones concedes that the district court properly calculated the guidelines range, considered the arguments of counsel, and duly addressed the 3553(a) sentencing factors. He further concedes that the district court had the authority to impose a sentence outside the guidelines range, and that it articulated reasons for its departure. 4 4 case warrants a different sentence regardless.'" F.3d at 161 (quoting Rita, 127 S. Ct. at 2465). Evans, 526 The district court is obligated to state in open court the particular reasons supporting its chosen sentence, 18 U.S.C. 3553(c) (2006), and to "make an individualized assessment based on the facts presented." Gall, 128 S. Ct. at 597. The district We find no error in Jones' sentence. court detailed its reasons for the two-level upward departure and those reasons meet statutory and constitutional muster. 5 The district court's conclusion that a criminal history category of IV was inadequate to account for the seriousness of Jones' criminal history and the likelihood that he would commit future crimes was appropriate under the circumstances of this case and proper under the law. Moreover, sentencing factors Jones' could arguments have been that the 3553(a) and fairly "more fully addressed" by the district court because his drug quantities were not overwhelming, and that a 92-month sentence would have adequately satisfied the 3553(a) factors, merely evince a disagreement with the district court's conclusion, and fail to The district court never mentioned the Government's charging decision as a reason for granting the upward departure, and Jones' argument that the court upwardly departed to cure the Government's dissatisfaction with its own charging decision is not supported by the record. 5 5 establish an abuse of discretion with the by the district imposed court. does A not defendant's disagreement sentence constitute reversible error. Finally, we reject Evans, 526 F.3d at 162. Jones' claim that the district Review court erred in "double-counting" his prior convictions. of the record reveals that the district court was fully aware of the prohibition against "double-counting." departure adequacy decision of was based wholly on The district court's its analysis of the its Jones' criminal history category and determination that a criminal history category of IV failed to adequately criminal reflect actions either or his the seriousness of Jones' of prior future significant likelihood recidivism. calculating Moreover, even if the district court had erred in the departure, in the absence of the upward departure, Jones' 132-month sentence would have been proper as a variance sentence. See Williams v. United States, 503 U.S. 193, 204 (1992); Evans, 526 F.3d at 165 ("When . . . a district court offers two or more independent rationales for its deviation, an appellate court cannot hold the sentence unreasonable if the appellate court finds fault with just one of these rationales."). Accordingly, we affirm Jones' conviction and sentence. We dispense with oral argument because the facts and legal 6 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 7

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