USA v. Nathan Jones

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USA v. Nathan Jones

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Case: 09-10613

Document: 00511216453

Page: 1

Date Filed: 08/26/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10613 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. N A T H A N LAMAR JONES, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 4:08-CR-175-1

B e fo r e JONES, Chief Judge, and SMITH and CLEMENT, Circuit Judges. P E R CURIAM:* N a t h a n Lamar Jones appeals from his conviction by guilty plea of bank r o b b e r y , for which he received a sentence of 235 months of imprisonment. Jones's sentence was the result of an upward departure from the 151-181 month g u id e lin e sentencing range applicable to a level-29, category-VI offender. Jones con t e n d s on appeal that the district court erroneously calculated his offense level d u e to its grouping calculations. He further argues that the de novo standard o f review applies to the district court's error. The Government contends that the
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
*

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Document: 00511216453 Page: 2 No. 09-10613

Date Filed: 08/26/2010

p la in error standard of review applies and that Jones cannot demonstrate r e v e r s ib le plain error. J o n e s was convicted on one count of bank robbery, and he stipulated to the fa c t s establishing four other robberies. For sentencing purposes, the probation o ffic e r treated the stipulated offenses as if Jones had been convicted of them. See U.S.S.G. § 1B1.2(c). Pursuant to § 3D1.4, the probation officer assigned one u n it to the count of conviction and one unit for each of the stipulated offenses. The probation officer assigned a total of five units, then added five levels to the h ig h e s t base offense level applicable to any of the single robberies. Jones

o b je c t e d to a firearm adjustment to the offense level for one of the robberies. In r e s p o n s e , the probation officer discussed the objection and recommended that it b e rejected. The probation officer informed the district court what the offense le v e l would be were the district court to agree with the objection. The probation o ffic e r also recalculated the grouping of Jones's robberies, correctly assigning a t o t a l of four levels for Jones's five robberies. See § 3D1.4. The change in the r e c a lc u la t io n was not mentioned or discussed, however, and the only indication t h a t a change was made was the calculation itself. T h e district court overruled Jones's objections to his presentence report (P S R ) and adopted the findings of fact and statements of law in the PSR, " s u b je c t to and including changes and qualifications made by the addendum." Had the grouping recalculation been maintained, Jones's offense level would h a v e been 28, and his guideline sentencing range would have been 140-175 m o n th s of imprisonment. The district court, however, determined that the o ffe n s e level was 29 and that the sentencing range was 151-181 months. The d is t r ic t court departed to level 31 after finding that the level 29 sentencing range s u b s t a n t ia lly underrepresented the likelihood that Jones would commit other c r im e s . Jones's 235-month sentence was the highest sentence within the level3 1 , category-VI range of 188-235 months. The district court stated that the 235m o n th sentence was "necessary to achieve the Court's objectives of punishment 2

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Date Filed: 08/26/2010

[a n d ] protection of the public and in order to comply with the directives of 18 U n ite d States Code, Section 3553(a)." A district court must be put on notice of a defendant's objections so it may h a v e an opportunity to correct them. United States v. Hernandez-Martinez, 485 F .3 d 270, 272-73 (5th Cir. 2007). An objection must be raised with sufficient s p e c ific it y to alert the district court to the issue before it. See United States v. H e r n a n d e z , 64 F.3d 179, 181 (5th Cir. 1995); see also FDIC v. Mijalis, 15 F.3d 1 3 1 4 , 1327 (5th Cir. 1994) ("if a litigant desires to preserve an argument for a p p e a l, the litigant must press and not merely intimate the argument during the p r o c e e d in g s before the district court."). The record indicates that nobody--not t h e probation officer, the Government, or Jones--actively brought the grouping is s u e to the district court's attention. The district court evidently was unaware t h a t the probation officer had performed new grouping calculations, as is shown b y the departure from level 29 instead of the correct level 28. Had the district c o u r t been alerted to the fact that the recalculated offense level included a d iffe r e n t grouping calculation than the initially calculated offense level, the d is t r ic t court could have addressed the issue explicitly and employed the c o r r e c t ly calculated offense level. Jones's appellate contention thus is reviewed u n d e r the plain error standard. See Hernandez, 64 F.3d at181; Mijalis, 15 F.3d a t 1327. T o show plain error, the appellant must show a forfeited error that is clear o r obvious and that affects his substantial rights. Puckett v. United States, 129 S . Ct. 1423, 1429 (2009). If the appellant makes such a showing, this court has t h e discretion to correct the error but only if it seriously affects the fairness, in t e g r it y , or public reputation of judicial proceedings. Id. Under plain error r e v ie w , Jones must demonstrate that the grouping miscalculation affected the s e n te n c e he received; he must "demonstrate a probability sufficient to u n d e r m in e confidence in the outcome." United States v. Akpan, 407 F.3d 360, 3 7 7 -7 8 (5th Cir. 2005) (internal quotation marks and citation omitted). 3

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Date Filed: 08/26/2010

T h e district court's comments suggest that it would have departed to level 3 1 and a sentence of 235 months even if it had started its departure from level 2 8 . Jones has not shown a reasonable probability that his sentence would have b e e n different had the district court departed from the correct guideline s e n te n c in g range, and he therefore has failed to demonstrate that the district c o u r t's error affected his substantial rights. See Akpan, 407 F.3d at 377-78. A F F IR M E D .

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