USA v. James Jones

Filing

OPINION [1657024] filed (Pages: 12) for the Court by Judge Williams. [15-3063, 15-3064]

USCA Case #15-3063

Document #1657024

Filed: 01/24/2017

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 21, 2016

Decided January 24, 2017

No. 15-3063
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES ANTONIO JONES, ALSO KNOWN AS TONIO,
APPELLANT
Consolidated with 15-3064

Appeals from the United States District Court
for the District of Columbia
(No. 1:89-cr-00162-4)
(No. 1:89-cr-00162-2)
Tony Axam Jr., Assistant Federal Public Defender, argued
the cause for appellant. With him on the briefs was A.J.
Kramer, Federal Public Defender.
Nicholas P. Coleman, Assistant U.S. Attorney, argued the
cause for appellee. With him on the briefs were Elizabeth
Trosman, Chrisellen R. Kolb, William B. Wiegand, and John
Dominguez, Assistant U.S. Attorneys.

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Before: KAVANAUGH and WILKINS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Appellants Melvin
Butler and James Antonio Jones are each serving lengthy
prison sentences for drug offenses. Based on a recent
retroactive amendment to the United States Sentencing
Guidelines, they sought reductions of those sentences under
18 U.S.C. § 3582(c)(2). Although the district court agreed
that it could reduce their sentences, it declined to do so after
considering the relevant factors listed in 18 U.S.C. § 3553(a).
United States v. Butler, 130 F. Supp. 3d 317 (D.D.C. 2015).
Appellants challenge those denials as substantively
unreasonable. Before reaching the merits, we must consider
our statutory basis to hear these appeals and whether that
authority extends to reviewing the reasonableness of the
district court’s decisions. Since we find that 28 U.S.C. § 1291
permits such review, we consider the underlying denials and,
finding them to be reasonable, we affirm.
***
Section 3582 of Title 18 sets out the statutory background
for the district court proceedings that we review. While it
starts with the general proposition that a court may not modify
a term of imprisonment “once it has been imposed,” it goes on
to create exceptions, notably § 3582(c)(2). Where a defendant
has been sentenced to a term “based on a sentencing range
that has subsequently been lowered by the Sentencing
Commission . . . , the court may reduce the term of
imprisonment, after considering the factors set forth in section
3553(a) . . . if such a reduction is consistent with applicable

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policy statements issued by the Sentencing Commission.” Id.
§ 3582(c)(2); see U.S.S.G. § 1B1.10(a) (policy statement on
reductions); see also Dillon v. United States, 560 U.S. 817,
826-27 (2010) (further explaining the framework).
Along with several others, appellants were convicted in
1989 of conspiracy to distribute large amounts of cocaine.
After post-trial motions and appeals (the details of which are
not relevant here), the district court determined that, based on
the quantity of drugs and various enhancements, the thenmandatory Sentencing Guidelines provided a range of 324 to
405 months for both Butler and Jones. The district court then
imposed sentences at or near the top of that range—405
months for Butler and 393 months for Jones. According to
the Bureau of Prisons, Butler is scheduled to be released on
October 14, 2017 and Jones on February 23, 2018.
Roughly twenty years later, the Sentencing Commission
adopted amendments that authorized retroactive reduction of
the sentences for most drug offenses.
Unlike prior
amendments that targeted specific substances, Amendment
782 worked an across-the-board reduction in the offense
levels for most drug crimes. And in Amendment 788 the
Commission provided for courts to apply the reduction
retroactively after determining that offense levels had
previously been set unnecessarily high and “that a reduction
would be an appropriate step toward alleviating the
overcapacity of the federal prisons.” U.S.S.G. Supp. to App’x
C, Amend. 788 at 86. But the Commission built a one-year
delay into its retroactivity amendment (until November 1,
2015), “to give courts adequate time to obtain and review the
information necessary to make an individualized
determination . . . of whether a sentence reduction is
appropriate” based on the § 3553(a) factors. Id. at 87; see also
U.S.S.G. § 1B1.10(e)(1).

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Appellants
filed
unopposed
motions
invoking
Amendment 782 to reduce their sentences to time served as of
November 1, 2015. The district court agreed that appellants
were each eligible for a reduction under Amendment 782,
which reduced their sentencing ranges to 262 to 327 months.
Butler, 130 F. Supp. 3d at 321. (Although by that point
appellants had each served more than 327 months, the terms
of Amendment 788 limited their maximum benefit to release
on its November 1, 2015 start date.) Despite appellants’
eligibility for reductions, the district court considered
defendants’ motions in light of the § 3553(a) factors and held
that any reductions were unwarranted. See id. Accordingly it
denied the sentence-reduction motions. We address this
reasoning in detail when we reach the merits.
***
Until now we haven’t seriously considered our authority
to review § 3582(c)(2) sentence reductions, or denials of such
reductions, either pursuant to our broad authority to review
any final order of the district courts, 28 U.S.C. § 1291, or the
more specific power in 18 U.S.C. § 3742(a)(1), which we
have read as allowing us “to review any sentence for
reasonableness,” United States v. Dorcely, 454 F.3d 366, 37374 & n.4 (D.C. Cir. 2006) (relying on United States v. Booker,
543 U.S. 220 (2005)). Our prior decisions either silently
assumed jurisdiction, e.g., United States v. Lafayette, 585 F.3d
435 (D.C. Cir. 2009), or merely stated without analysis that it
existed, e.g., United States v. Kennedy, 722 F.3d 439, 442
(D.C. Cir. 2013) (jurisdiction under § 1291); United States v.
Cook, 594 F.3d 883, 885 (D.C. Cir. 2010) (jurisdiction under
both § 1291 and § 3742). Of course, those cursory and
unexamined statements of jurisdiction “have no precedential
effect.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
91 (1998); see Lewis v. Casey, 518 U.S. 343, 352 n.2 (1996).
But as the Sixth Circuit has found in United States v. Bowers,

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615 F.3d 715 (6th Cir. 2010), that it could not hear a nearly
identical appeal under either 28 U.S.C. § 1291 or 18 U.S.C.
§ 3742, we thought it necessary to grapple with the issue more
explicitly and ordered supplemental briefing.
Denials of sentence reductions are unquestionably “final
decisions of [a] district court[]” because they close the
criminal cases once again. 28 U.S.C. § 1291; see Midland
Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989)
(decision is final when it leaves nothing further to be done).
So § 1291 obviously looks promising. But a would-be
appellant cannot use that broad grant of jurisdiction to
circumvent statutory restrictions on sentencing appeals in
§ 3742. In re Sealed Case, 449 F.3d 118, 121 (D.C. Cir.
2006). Thus the presence of § 3742 might pose an obstacle if
an appeal under that section were available and if its
provisions barred review for reasonableness, as Bowers held,
615 F.3d at 723-28. Indeed, the government invokes our preBooker decision in United States v. Hazel, 928 F.2d 420, 42225 (D.C. Cir. 1991), which read § 3742 to bar such review.
Section 3742(a) allows a defendant to appeal on ground of
“violation of law,” “incorrect application of the sentencing
guidelines,” or any upward departure from the Guideline
range, and Hazel read those specifics to have a negative
implication,
precluding
appeals
claiming
only
unreasonableness. We look at the situation first in light of our
circuit law, which in fact now allows review for
reasonableness in § 3742 appeals. This completely moots the
theory that use of § 1291 would undercut § 3742’s limitations.
We will then briefly consider the situation independent of the
“undercutting” theory.
While Hazel would be binding in the absence of Booker,
that case radically changed the landscape by eliminating the
Guidelines’ mandatory character. With a sentencing judge’s
departure from a specified “range” no longer subject to the

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special requirements of 18 U.S.C. § 3553(b)(1), any negative
implications from the specific provisions of § 3742(a) or (b)
made little sense, and Booker tidied the situation up by
declaring that the Sentencing Reform Act “implicitly”
provided for review for reasonableness. 543 U.S. at 260-62.
See also Rita v. United States, 551 U.S. 338, 341 (2007) (“The
federal courts of appeals review federal sentences and set
aside those they find ‘unreasonable.’”). Congruent with if not
absolutely compelled by Booker, we have made it clear that
§ 3742 allows us to review “any sentence” for reasonableness,
“whether within the Guidelines range or not.” Dorcely, 454
F.3d at 374 (emphasis added); see also United States v.
Olivares, 473 F.3d 1224, 1231 (D.C. Cir. 2006). Thus § 3742
presents no problem for review under § 1291.
Of course the proposition that an appellant can’t avoid
restrictions under a path of review designed for his case by
proceeding along a more general avenue of review
presupposes that the path avoided was actually available. In
fact we have serious doubt as to whether a statute specifically
directed at appeals of sentences (§ 3742) also extends to those
challenging the denial of a § 3582(c)(2) reduction. Section
3742 provides for appeals “of an otherwise final sentence.”
But “a district court proceeding under § 3582(c)(2) does not
impose a new sentence in the usual sense.” Dillon, 560 U.S. at
827. Indeed, reasoning that an order modifying a sentence “is
not, properly speaking, a sentence,” at least one circuit has
held that § 3742 is inapplicable to any appeal from a sentencereduction decision, thus leaving free rein for § 1291. United
States v. McAndrews, 12 F.3d 273, 277 (1st Cir. 1993) (Rule
35(b) reduction). But see, e.g., United States v. McDowell,
117 F.3d 974, 977 & n.3 (7th Cir. 1997) (reasoning that a
granted reduction results in a new, modified sentence and so
falls within § 3742). Particularly since here the district court’s
denials of appellants’ sentence-reduction motions resulted
only in final orders—not new sentences by any definition—it

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appears that at least the most obvious reading of § 3742
renders it inapplicable. Cf. United States v. Washington, 759
F.3d 1175, 1180 (10th Cir. 2014) (finding jurisdiction under
§ 1291 albeit based on different reasons); United States v.
Colson, 573 F.3d 915, 916 (9th Cir. 2009) (reaching the same
conclusion but providing little in the way of reasoning).
In any event, the availability of appeal under § 3742 need
not detain us, given the absence of any obstacle to review for
reasonableness under § 1291.
***
Thus we reach the merits, and start with a review of the
evidence on which the appellants were convicted. The two
were key members of a drug ring that brought massive
amounts of Colombian cocaine into the District over the
course of the 1980s. Led by Rayful Edmond III, the group
sold the bulk of that cocaine in an open-air drug market in
Northeast D.C. known as “the Strip.” See United States v.
Edmond, 52 F.3d 1080, 1084-86 (D.C. Cir. 1995). Because
Butler supplied the organization with the Colombian cocaine
that fueled its growth, he occupied a position at the very top of
the organization (essentially equal to Edmond himself). Once
the drugs arrived in the District, Jones (along with a few
others) managed their distribution—overseeing day-to-day
drug dealing on the Strip and supervising the “lieutenants”
(who supplied street-level dealers and collected the proceeds
of their sales). As one of the gang’s “enforcers,” Jones
“use[d] force . . . to keep rival drug distributors from” dealing
in their territory and “to ensure that no one interfered with the
daily operation . . . on the ‘Strip.’” Pre-Sentence Report ¶ 33
(Feb. 13, 1990). After a lengthy jury trial, eleven members of
the gang (including Butler and Jones) were convicted of
conspiracy to distribute cocaine. The trial judge calculated a
range of 324 to 405 months under the Guidelines and

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sentenced Butler at the very top and Jones just below (393
months). (It is unclear why Jones’s sentence was lower.) As
we noted at the start, the reduced range applicable under
Amendment 782 was 262 to 327 months.
In considering the appellants’ motions for relief under
§ 3852(c)(2), the district court, as directed by that section,
looked to the “factors set forth in section 3553(a)” of Title 18.
See Butler, 130 F. Supp. 3d at 321-26. These require
consideration of both the particular defendant and the public
interest. Specifically, the district court must consider “the
nature and circumstances of the offense and the history and
characteristics of the defendant,” as well as “the need for the
sentence imposed to reflect the seriousness of the offense, to
promote respect for the law, [] to provide just
punishment . . . [and] adequate deterrence to criminal conduct,
[and] to protect the public from further crimes of the
defendant.” 18 U.S.C. § 3553(a)(1)-(2). Section 3553(a) also
requires the district court to consider the “sentencing range”
established by the Guidelines, “the need to avoid unwarranted
sentencing disparities,” and, where relevant, “the need to
provide restitution to any victims of the offense.” Id.
§ 3553(a)(4), (6), (7).
The district court attached great weight to the fact that
“[e]ach defendant was a key player in one of the largest drug
conspiracies in the history of this city.” Butler, 130 F. Supp.
3d at 321-22 (citing § 3553(a)(1)-(2)(A)). It stressed the
consequences of their activities—how the Edmond gang
“enabled drug use and addiction on a scale that up until that
point was unprecedented and largely unimaginable in this
city” and caused harm “across our city [that] is immeasurable
and in many cases irreversible.” Id. at 322. Although
acknowledging that appellants each had a “model disciplinary
record” and had availed themselves of mentoring and
educational opportunities while in prison, the court concluded

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that such factors “do not outweigh the other, more
commanding considerations,” presumably the serious nature
of their crimes. Id. at 323-24. Based on those findings, the
district court denied the sentence-reduction motions, giving no
relief.
Appellants claim that the denials of their sentencereduction motions were substantively unreasonable for three
reasons. First, they argue that because the newly-amended
Guidelines already accounted for the nature and seriousness of
their offenses (through the weight of the drugs involved and
the various role-related enhancements imposed), the district
court couldn’t double-count those factors in denying their
requested reductions. Particularly since the initial sentencing
court concluded that these crimes fitted within the Guidelines
(rather than requiring upward departures), appellants argue
that it is unreasonable for the district court to now find that the
same crimes are too serious for sentences within Amendment
782’s newly-reduced range.
Indeed one might reasonably think that the district court’s
role under such a downshift in the Guidelines range would be
simply to pick the spot in the new range corresponding to the
spot chosen in the old one.
But even apart from
§ 3582(c)(2)’s direction to newly apply the § 3553(a) factors,
Amendment 788 clearly ruled out any such automatic shift by
making November 1, 2015 the earliest date for a release
accelerated by Amendment 782, in order to allow district
courts to make “individualized determination[s] . . . of
whether [] sentence reduction[s] [are] appropriate.” U.S.S.G.
Supp. to App’x C, Amend. 788 at 87. Section 3582(c)(2)’s
directive to consider the § 3553(a) factors is in any event
enough, and explains why we and other circuits have never
adopted the view that a district court contemplating such a
reduction motion is either required to apply the simple
“downshift” notion or even to offer any special reasons

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refusing to do so—so long as the court properly applies
§ 3553(a). See Lafayette, 585 F.3d at 439; see also United
States v. Jones, 836 F.3d 896, 899 (8th Cir. 2016); United
States v. Dunn, 728 F.3d 1151, 1159-60 (9th Cir. 2013);
United States v. Osborn, 679 F.3d 1193, 1196 (10th Cir.
2012). Just as in an ordinary initial sentencing, the Guidelines
provide the “starting point and the initial benchmark” but are
“not the only consideration.” Gall v. United States, 552 U.S.
38, 49 (2007).
Here the court considered the § 3553(a) factors at length
(including the nature and seriousness of the offenses) and
decided that nothing less than the original sentences would be
enough. See Butler, 130 F. Supp. 3d at 321-324. In contrast
to run-of-the-mill drug gangs, Edmond’s “organization
regularly procured and distributed hundreds of kilos of
cocaine and cocaine base” and “enabled drug use and
addiction on a scale that up until that point was unprecedented
and largely unimaginable in this city.” Id. at 322. Based on
the appellants’ critical roles in that “unprecedented” drug ring,
the court found that these crimes required stiffer sentences
than the amended guidelines provided and justified the risk of
potential disparities. Id. at 322-24. While we (or another
district court) might have reached a different conclusion were
the decisions ours to make, we cannot say that the court acted
unreasonably. See Gall, 552 U.S. at 51; see also United States
v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).
Second, appellants argue that the district court ignored
the Sentencing Commission’s own findings that middle-aged
offenders who served lengthy sentences (as appellants have)
pose little risk of recidivism and that the sentence reductions
enabled by Amendment 782 would not increase the risk of
recidivism. See Appellants’ Br. at 25-26 (citing United States
Sentencing Commission, Recidivism Among Offenders
Receiving Retroactive Sentence Reductions: The 2007 Crack

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Cocaine Amendment (May 2014) and United States
Sentencing Commission, Measuring Recidivism:
The
Criminal History Computation of the Federal Sentencing
Guidelines (May 2004)). As appellants would have it, those
studies in combination show there should be little concern
over their recidivism. But statistics can only speak to the
likely results for the average offender, whereas under
§ 3553(a) the district court must “consider every convicted
person as an individual and every case as a unique study in the
human failings that sometimes mitigate, sometimes magnify,
the crime and the punishment to ensue.” Koon v. United
States, 518 U.S. 81, 113 (1996). Although appellants are now
in their fifties, the district court concluded that they pose a
significant threat to the community because they “were
critical to the design and execution of a dominant, enduring,
and citywide drug operation” and accordingly “possess the
skills, knowledge, and proven resolve necessary to procure
and distribute illegal drugs on a massive scale.” Butler, 130
F. Supp. 3d at 323. Again, we can’t say that the district
court’s concerns were so baseless as to constitute reversible
error.
Finally, appellants argue that the district court ran afoul
of Bearden v. Georgia, 461 U.S. 660 (1983), by resting its
denials of their reductions in part on their failure to make
financial restitution to the victims of their drug gang. Of
course, it would be highly questionable if the district court
kept appellants in jail solely because they genuinely couldn’t
afford to pay restitution—and possibly unconstitutional. See
United States v. Burgum, 633 F.3d 810, 815 (9th Cir. 2011)
(“[T]he Constitution prohibits imposition of a longer prison
term based on the defendant’s poverty . . . .”); United States v.
Plate, 839 F.3d 950, 956 (11th Cir. 2016). But appellants’
argument completely mischaracterizes what the district court
did here. It made no reference whatever to financial
repayments but instead considered the “immeasurable and in

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many cases irreversible” harm done to the community at
large. Butler, 130 F. Supp. 3d at 322. Although the court
made a linguistic misstep by framing its discussion of the
harms that appellants’ activities inflicted on the local
population, wrongs concededly uncorrected, as a failure to
provide restitution, id. at 322-23, it is plain from the context
that it meant only to stress the magnitude of those harms,
clearly part of the “seriousness of the offense” mentioned by
§ 3553(a). Just as in United States v. Rangel, 697 F.3d 795,
804 (9th Cir. 2012), the district court here used an inapt label
for its consideration of victim impact, and here as there it is no
reason for reversal.
***
Accordingly, the judgment of the district court is
Affirmed.

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