USA v. Duane Jone

Filing

FILED OPINION (ARTHUR L. ALARCON, SIDNEY R. THOMAS and MARSHA S. BERZON) AFFIRMED IN PART; VACATED IN PART; REMANDED. Judge: ALA , Judge: SRT Authoring, Judge: MSB . FILED AND ENTERED JUDGMENT. [8349959]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DUANE HOWARD JONES,
Defendant-Appellant.

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No. 12-50042
D.C. No.
2:08-cr-01321-R-1
OPINION

Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted
September 10, 2012—San Francisco, California
Filed October 5, 2012
Before: Arthur L. Alarcón, Sidney R. Thomas, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Thomas

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COUNSEL
Becky Walker James, Kathryn A. Lohmeyer, Law Offices of
Becky Walker James, Los Angeles, California, attorneys for
the appellant.
André Birotte Jr., Curtis A. Kin, Robert E. Dugdale, Max B.
Shiner, United States Attorney’s Office, Los Angeles, California, attorneys for the appellee.

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OPINION
THOMAS, Circuit Judge:
In this appeal from the district court’s revocation of supervised release, we consider whether the district court erred in
treating a state criminal conviction as a felony rather than a
misdemeanor, when the sole categorical difference was a
recidivist history. We conclude that the district court properly
considered the conviction as a felony. However, because the
district court included a written special condition of supervised release that the court did not include in its oral pronouncement of sentence, we must vacate the judgment and
remand for further proceedings.
I
In 2006, Duane Jones pleaded guilty to possessing counterfeit obligations with intent to defraud, in violation of 18
U.S.C. § 472. He was sentenced to 24 months in custody followed by 36 months of supervised release. Jones was subject
to standard supervision conditions, including that he not commit any federal or state crimes. Prior to his federal conviction,
Jones was convicted in California state court of indecent
exposure.
In 2010, while on supervised release, Jones was again convicted in California state court of indecent exposure. California law specifies that an initial conviction of indecent
exposure is punishable by a jail or prison term “not exceeding
one year.” Cal. Penal Code § 314. But “[u]pon the second and
each subsequent conviction of” indecent exposure, “every
person so convicted is guilty of a felony.” Id. Consequently,
when Jones was convicted in 2010, he was found guilty of a
felony and sentenced to three years in state prison. See Cal.
Penal Code § 18 (felony punishable by up to three years in
prison).

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After Jones’s latest exposure to the criminal justice system,
the United States Probation Office filed a petition alleging
Jones had violated the terms of his supervised release. The
probation office calculated Jones’s violation as a Grade B violation, concluding that his latest foray should be counted as a
felony. Because of the violation grade and Jones’s criminal
history category (IV), the recommended Guidelines range was
12 to 18 months. See U.S.S.G. § 7B1.4. The probation office
recommended a sentence of 14 months in custody, followed
by 22 months of supervised release, as well as ten special conditions of supervision.
At Jones’s sentencing hearing, defense and government
counsel explained that they agreed on a custodial sentence of
14 months, followed by 22 months of supervised release.
They also agreed two special conditions should be omitted:
one that prohibited Jones from possessing obscene materials
and another that prohibited him from living within 2000 feet
of schools and other facilities used by children. Jones did not
challenge the probation report’s finding that his offense constituted a Grade B violation.
The court sentenced defendant to 14 months in custody and
22 months of supervised release. The court did not specify the
violation grade or the applicable Guidelines range. The court
read aloud the special conditions and did not include the two
conditions the parties had agreed to omit. However, the next
day, the district court issued its written judgment, which
included the residency restriction among the special conditions.
Jones timely appealed the sentence. We have jurisdiction
pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We
review a district court’s interpretation of the Sentencing
Guidelines de novo. United States v. Guzman-Mata, 579 F.3d
1065, 1068 (9th Cir. 2009). If a defendant did not raise his
objection to the sentence before the district court, as is the
case here, we review for plain error. Id.

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II
For a revocation sentence, the Guidelines range is determined by the criminal history category and the grade of violation (A, B, or C, with A being the most serious). See U.S.S.G.
§ 7B1.4 (Revocation Sentencing Table), § 7B1.1 (Classification of Violations).
In relevant part, Section 7B1.1 of the Guidelines states:
(a) There are three grades of probation and supervised release violations:
(1) . . .]
(2) Grade B Violations — conduct constituting any other federal, state, or local
offense punishable by a term of imprisonment exceeding one year;
(3) Grade C Violations — conduct constituting (A) a federal, state, or local offense
punishable by a term of imprisonment of
one year or less; or (B) a violation of any
other condition of supervision.
In this case, Jones’s new conviction would have been considered a misdemeanor, a Grade C Violation, if he had not
received an enhanced state sentence because of his prior state
conviction. With the recidivist enhancement, his crime was
categorized as a state felony, a Grade B Violation.1
[1] The central question on appeal is whether a state con1

If Jones had been found to have committed a Grade C violation, the
applicable Guidelines range would have been 6 to 12 months, rather than
12 to 18 months, given Jones’s criminal history category (IV). See
U.S.S.G. § 7B1.4.

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viction should count as a felony for federal sentencing purposes in supervised release revocation proceedings, when the
conviction would have been categorized as a misdemeanor if
a recidivist enhancement had not been imposed.
[2] Although that question has not been precisely answered
in our Circuit, we have strong guidance from the Supreme
Court in a closely analogous context. In United States v.
Rodriquez, 553 U.S. 377 (2008), the Supreme Court held that
courts must consider recidivist enhancements in determining
whether a defendant’s prior convictions constitute serious
drug offenses under the Armed Career Criminal Act. Id. at
382-86. In doing so, it rejected the theory that sentencing
courts must “consider the sentence available for the crime
itself, without considering separate recidivist sentencing
enhancements.” United States v. Corona-Sanchez, 291 F.3d
1201, 1209 (9th Cir. 2002) (en banc), abrogated in part by
Rodriquez, 553 U.S. at 384-86. Similarly, this Court, relying
on Rodriquez, has held that district courts should consider
recidivist sentencing enhancements in determining whether a
conviction constitutes an “aggravated felony” under Section
2L1.2(b)(1)(C) of the Sentencing Guidelines. United States v.
Rivera, 658 F.3d 1073 (9th Cir. 2011).
Despite these precedents, Jones argues that determining the
grade of a supervised release violation under Section 7B1.1
requires a different rule for two reasons: First, he argues that
because a sentence imposed for a supervised release violation
is meant to sanction the defendant’s breach of the federal
court’s trust and not to punish the underlying offense, a court
cannot consider a recidivist enhancement (particularly one
based on a conviction that predated the federal conviction)
because it cannot represent a breach of the court’s trust. Second, Jones argues that because the commentary to Section
7B1.1 specifies that a violation grade should be determined
based on the defendant’s “actual conduct,” a court cannot
consider a defendant’s recidivist status, which is not a part of

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his conduct. Given controlling case law, neither contention
has merit.
[3] First, considering the seriousness of Jones’s offense is
entirely consistent with the Guidelines and with the primary
purpose of a revocation sentence, sanctioning the defendant’s
breach of trust. The Guidelines provide that “at revocation the
court should sanction primarily the defendant’s breach of
trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of
the violator.” U.S. Sentencing Guidelines Manual Ch. 7, Pt.
A(3)(b) (2010); see also United States v. Simtob, 485 F.3d
1058, 1062 (9th Cir. 2007) (“The seriousness of the offense
underlying the revocation, though not a focal point of the
inquiry, may be considered to a lesser degree as part of the
criminal history of the violator.”). Indeed, the whole point of
the violation grades is to “permit proportionally longer terms
for more serious violations.” U.S. Sentencing Guidelines
Manual Ch. 7, Pt. A(3)(b). If the “nature and severity of the
underlying offense were removed from the equation altogether,” a court could not “punish the violator for the violator’s
full breach of trust.” Simtob, 485 F.3d at 1063. In other words,
a more serious violation constitutes a more serious breach of
the court’s trust.
[4] Consistent with the Supreme Court’s observation that
a “second or serious offense is often regarded as more serious
because it portends future danger,” Rodriquez, 553 U.S. at
385, California treats a second conviction of indecent exposure as a more serious offense than an initial exposure conviction. Consequently, the district court could properly consider
the seriousness of this violation, to the limited degree it did,
in imposing Jones’s revocation sentence.
[5] Jones suggests that even if a court may consider a prior
offense, it cannot consider one that predated the federal conviction because such a conviction can never represent a
breach of trust. As the Supreme Court has made clear in

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Rodriquez, a recidivist offense often is — in and of itself —
more serious than a first-time offense. See Rodriquez, 533
U.S. at 386 (noting that when a defendant receives a higher
sentence under a recidivist enhancement, the “sentence ‘is a
stiffened penalty for the latest crime, which is considered to
be an aggravated offense because [it is] a repetitive one.’ ”
(citation omitted) (alterations in original)). Thus, a recidivist
enhancement is properly considered in imposing a revocation
sentence, irrespective of when the initial conviction occurred.
Moreover, the Guidelines themselves do not distinguish
between prior and instant offenses. In the similar situation of
determining the violation grade of a felon in possession of a
firearm, the Guidelines expressly approve of basing the violation grade in part on a felony conviction that occurred before
the period of federal supervised release. See U.S.S.G. § 7B1.1
cmt. app. n.5 (“Where the defendant is under supervision in
connection with a felony conviction, or has a prior felony
conviction, possession of a firearm . . . will generally constitute a Grade B violation because 18 U.S.C. § 922(g) prohibits
a convicted felon from possessing a firearm.” (emphasis
added)).
Second, Jones argues that because a violation grade should
be based on a defendant’s “conduct,” it necessarily excludes
a defendant’s recidivist status, which is not a part of his conduct. He points to the language of Application Note 1 to Section 7B1.1, which states:
Under 18 U.S.C. §§ 3563(a)(1) and 3583(d), a mandatory condition of probation and supervised release
is that the defendant not commit another federal,
state, or local crime. A violation of this condition
may be charged whether or not the defendant has
been the subject of a separate federal, state, or local
prosecution for such conduct. The grade of violation
does not depend on the conduct that is the subject of
criminal charges or of which the defendant is con-

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victed in a criminal proceeding. Rather, the grade of
violation is to be based on the defendant’s actual
conduct.
(Emphasis added.)
[6] But read as a whole, Application Note 1 simply provides guidance to courts evaluating uncharged conduct by
clarifying that such conduct can form the basis of a supervised
release violation even when the defendant has not been
charged or convicted. Cf. United States v. Denton, 611 F.3d
646, 652 (9th Cir. 2010) (citing to Application Note 1 in analyzing proper treatment of uncharged conduct). In that context, the last two sentences of this note do not suggest that
when, as here, a defendant was actually convicted of a felony,
the sentencing court must treat it as a misdemeanor because
his recidivist status was the basis for the felony conviction.
Here, Jones’s recidivist status was an inextricable part of his
“conduct” under Section 7B1.1 because, under California law,
repeat exposure is a more serious offense (and thus more serious and different conduct) than committing exposure for the
first time.
[7] Therefore, the district court did not err, much less
plainly err, in treating Jones’s supervised release violation as
a Grade B violation.
III
[8] Jones also argues — and the government concedes —
that the district court erred by including in its written judgment a residency restriction that it did not include in its oral
pronouncement of sentence. We agree.
“ ‘In cases where there is a direct conflict between an
unambiguous oral pronouncement of sentence and the written
judgment . . . the oral pronouncement, as correctly reported,
must control.’ ” United States v. Hicks, 997 F.2d 594, 597

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(9th Cir. 1993) (quoting United States v. Munoz-Dela Rosa,
495 F.2d 253, 256 (9th Cir. 1974)). Here, the district court’s
oral pronouncement of sentence was unambiguous. In reading
aloud the special conditions of supervised release, the court
did not include the residency restriction. That pronouncement
controls over the inconsistent written judgment including that
restriction.2
[9] Therefore, we vacate the judgment and remand so the
district court can strike special condition 8 from the written
judgment to make it consistent with the court’s oral pronouncement of sentence. Cf. id. (ordering similar remedy).
AFFIRMED in part; VACATED and REMANDED in
part.

2
We also note that the district court did not specify the violation grade
or the applicable Guidelines range at sentencing. A district court is
required to announce the Guidelines range. See United States v. Waknine,
543 F.3d 546, 554 (9th Cir. 2008) (district court’s “total failure to
announce its calculated Guidelines range” was plain error). Jones has not
raised this issue on appeal.