US v. Torrence Jones

Filing 920090702

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

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