USA v. Rickey Jones

Filing

Per Curiam OPINION filed : AFFIRMED; decision not for publication pursuant to local rule 28(g). Boyce F. Martin , Jr., Circuit Judge; Eugene E. Siler , Jr., Circuit Judge and Robert Holmes Bell, U.S. District Judge, for the Western District of Michigan, sitting by designation.

Case: 09-3306 Document: 006110826937 Filed: 12/28/2010 Page: 1

N O T RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0791n.06 N o . 09-3306 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT

FILED
Dec 28, 2010
U N IT E D STATES OF AMERICA, P l a in tif f -A p p e lle e , v. R I C K E Y D. JONES, D e f e n d a n t-A p p e llan t, ) ) ) ) ) ) ) ) ) LEONARD GREEN, Clerk O N APPEAL FROM THE UNITED S T A T E S DISTRICT COURT FOR T H E SOUTHERN DISTRICT OF O H IO

B E F O R E : MARTIN and SILER, Circuit Judges; BELL, District Judge.* P E R CURIAM. Defendant-Appellant Rickey D. Jones appeals the sentence imposed o n him following revocation of supervised release. For the following reasons, we AFFIRM. I. I n 1999, Jones was convicted of conspiracy to distribute cocaine and marijuana in v io la tio n of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A). His original sentence of 120 m o n th s in prison was vacated on appeal. United States v. Campbell, 279 F.3d 392 (6th Cir.

The Honorable Robert Holmes Bell, United States District Judge for the Western D is tric t of Michigan, sitting by designation. 1

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No. 09-3306 United States v. Jones 2 0 0 2 ). Jones was sentenced on remand to 70 months in prison, followed by 5 years of su p e rv ise d release. Jones did not appeal his amended sentence. In 2004, Jones began his f irs t term of supervised release. His supervised release was revoked in March 2006, and he w a s sentenced to twelve months in custody followed by 34 months of supervised release. J o n e s commenced his second term of supervised release in March 2007. In August 2008, Jones traveled from Dayton, Ohio, where he was serving his term o f supervised release, to Phoenix, Arizona, without the permission of his probation officer. H e traveled with two other convicted felons, one of whom was a co-defendant in his u n d e rlyin g federal drug conviction. Upon arriving at the Phoenix airport, Jones and his c o m p a n io n s were stopped and questioned by police. The police seized approximately $9,000 in cash and some marijuana residue from Jones. No criminal charges resulted from this in v e stig a tio n , and Jones did not report this police contact to his probation officer. Jones was a r re s te d on December 2, 2008, in Sierra Blanca, Texas, on a warrant for supervised release v io la tio n s . On March 18, 2009, Jones admitted that he was guilty of all five violations alleged in the supervised release violation report: (1) leaving the judicial district without permission; (2 ) associating with known felons; (3) failing to submit monthly supervision reports for July a n d August 2008; (4) being in possession of marijuana residue; and (5) failing to notify his p r o b a tio n officer of his questioning by Phoenix, Arizona, police. All of the violations are 2

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No. 09-3306 United States v. Jones G ra d e C violations under Chapter 7 of the United States Sentencing Guidelines and carry a g u id e li n e range of 6 to 12 months in prison. The district court recognized the applicable g u id e lin e range, but sentenced Jones to the maximum term of incarceration, 24 months, with n o supervised release to follow, as recommended in the supervised release violation report. O n appeal, Jones argues that the sentence was substantively unreasonable. II. We review sentences imposed following revocation of supervised release "under the s a m e abuse of discretion standard that we apply to sentences imposed following conviction." U n ite d States v. Kontrol, 554 F.3d 1089, 1092 (6th Cir. 2009) (quoting United States v. B o ld s , 511 F.3d 568, 572-73, 578 (6th Cir. 2007)). Under this standard of review, "we may o v e rtu rn a sentence only if it is procedurally or substantively unreasonable." Id. (citing U n ite d States v. Houston, 529 F.3d 743, 753 (6th Cir. 2008)). "The essence of a

s u b s ta n tiv e - r e a s o n a b le n e ss claim is whether the length of the sentence is `greater than n e c es s a ry' to achieve the sentencing goals set forth in 18 U.S.C. § 3553(a)." United States v . Tristan-Madrigal, 601 F.3d 629, 632-33 (6th Cir. 2010). A district court has broad d isc re tio n to determine what sentence will best serve the objectives of § 3553(a), particularly in the "discretion-filled context of supervised release." Kontrol, 554 F.3d at 1093. "A s e n te n c e is substantively unreasonable if the district court `selects a sentence arbitrarily, b a se s the sentence on impermissible factors, fails to consider relevant sentencing factors, or 3

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No. 09-3306 United States v. Jones g iv e s an unreasonable amount of weight to any pertinent factor.'" United States v. Lapsins, 5 7 0 F.3d 758, 772 (6th Cir. 2009) (quoting United States v. Conatser, 514 F.3d 508, 520 (6th C ir. 2008)). Jones contends that the 24-month sentence was substantively unreasonable because i t was based on speculation and because it was twice the length of the high end of the a p p lic a b le guideline range. Jones's contention that the sentence was based upon a mistaken factual finding is w ith o u t merit. The district court specifically withdrew its finding that Jones was attempting t o flee to Mexico, and reiterated its determination that Jones should receive a 24-month s e n te n c e even without this finding. Jones's contention that the district court impermissibly relied on an unsubstantiated a lleg a tio n that he had been involved in a drug trafficking transaction is also without merit. " [ I]t is well established that a sentencing court is not prohibited from considering uncharged c rim in a l conduct." United States v. Mayle, 334 F.3d 552, 565-66 (6th Cir. 2003). "Congress h a s provided that `[n]o limitation shall be placed on the information concerning the b a c k g ro u n d , character, and conduct of a person convicted of an offense which a court of the U n ited States may receive and consider for the purpose of imposing an appropriate s e n te n c e.'" Id. at 566 (quoting 18 U.S.C. § 3661). Here, Jones admitted to the relevant facts re g a rd in g his unauthorized travel to Arizona, his association with felons, his questioning by 4

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No. 09-3306 United States v. Jones p o lice officers, and the seizure of cash and marijuana residue from him. It was reasonable an d appropriate for the district court to view this evidence as significant in light of Jones's p rio r conviction for conspiring to distribute cocaine and marijuana. Even if the sentence was not based upon impermissible factors, Jones contends that th e sheer length of the sentence makes it substantively unreasonable. In reviewing a sentence f o r substantive reasonableness, we consider the totality of the circumstances, including the e x te n t of any variance from the guideline range. United States v. Polihonki, 543 F.3d 318, 3 2 2 (6th Cir. 2008). Although we do not apply a presumption of substantive reasonableness to a sentence that falls outside of the guideline range, we must still give "due deference" to th e district court's decision that the § 3553(a) factors justify the variance. Id. at 322 (quoting G a ll v. United States, 552 U.S. 38, 51 (2007)). The greater the departure from the guideline s e n te n c e , "the more compelling the justification based on factors in § 3553(a) must be." U n ite d States v. Brown, 501 F.3d 722, 726 (6th Cir. 2007) (quoting United States v. Davis, 4 5 8 F.3d 491, 496 (6th Cir. 2006)). The district court was well aware that the 24-month sentence was "substantially a b o v e " the guideline range but indicated that it would have imposed an even higher sentence if it were not constrained by the maximum set forth in 18 U.S.C. § 3583(e)(3). The district c o u rt noted that it appeared from Jones's conduct that he was returning to behavior and asso ciatio n s consistent with his underlying criminal conviction. 5 In light of Jones's

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No. 09-3306 United States v. Jones u n d e rlyin g criminal conviction, the serious nature of his supervised release violations, and h is revocation history, the district court found that he was unable or unwilling to conform to th e requirements imposed upon him during supervised release. The district court was c o n v in c e d that "nothing short of a significant additional term of imprisonment" would serve th e § 3553(a) sentencing goals of reflecting the seriousness of the violations and providing ju s t punishment that promotes respect for the law. Although the 24-month sentence imposed in this case is substantially higher than the 6 to 12 month guideline range, we have upheld similar variances in other cases where the d e f e n d a n t engaged in repeated supervised release violations. See, e.g., Brown, 501 F.3d at 7 2 6 (finding a sentence ten months above the top of the recommended sentencing range re a so n a b le where the defendant was before the court on his third revocation hearing); United S ta te s v. Kirby, 418 F.3d 621, 628 (6th Cir. 2005) (finding that, despite a guideline range of 4 to 10 months, the statutory maximum term of 20 months "was more than justified by [ d e f e n d a n t's ] repeated transgressions."). The district court provided a sufficiently compelling justification for imposing the s ta tu to ry maximum term of imprisonment, and we conclude that the sentence was not s u b s ta n tiv e ly unreasonable.

III.

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No. 09-3306 United States v. Jones F o r these reasons, we AFFIRM

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