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United States v. Jones

United States Court of Appeals, Tenth Circuit

July 25, 2013

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JASON JONES, a/k/a Peek-A-Boo, Defendant-Appellant.

D.C. No. 6:11-CR-10131-MLB-1 (D. Kan.)

Before KELLY, GORSUCH, and HOLMES, Circuit Judges.

ORDERAND JUDGMENT [*]

Jerome A. Holmes Circuit Judge

Defendant-Appellant Jason Jones entered a guilty plea, without a plea agreement, to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Mr. Jones's Presentence Investigation Report ("PSR") noted that his criminal history included four prior burglary convictions. Three of the convictions were for burglaries Mr. Jones committed when he was seventeen years old. Based on these convictions, the PSR stated that Mr. Jones was subject to an enhanced sentence under the Armed Career Criminal Act (the "ACCA"), 18 U.S.C. § 924(e)(1), warranting a base offense level of thirty-three under the United States Sentencing Guidelines ("the Guidelines" or "U.S.S.G.") § 4B1.4[1]and a mandatory minimum fifteen-year sentence. Prior to being sentenced, Mr. Jones lodged multiple objections to the application of the ACCA's fifteen-year mandatory minimum to his case, all of which were rejected by the district court during Mr. Jones's sentencing hearing. The district court sentenced Mr. Jones to a term of 180 months' imprisonment to be followed by a term of five years' supervised release. On appeal, Mr. Jones raises the same issues he raised before the district court. Exercising our jurisdiction under 28 U.S.C. § 1291, we affirm.

I

In November 2010, the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") began conducting an undercover storefront operation in Wichita, Kansas. The purpose of the operation "was for undercover ATF agents to purchase and/or trade controlled substances, firearms, and stolen property from various individuals in the Wichita, Kansas area." R., Vol. 2, at 7 (PSR, . On May 7, 2011, Mr. Jones entered the undercover storefront and sold a Browning 12-gauge shotgun to undercover ATF agents. During the transaction, Mr. Jones indicated that he had access to other firearms. After the sale, agents traced the shotgun to its purchaser, who informed the agents that the shotgun had been stolen from his home during a burglary that occurred on August 12, 2009. Mr. Jones had previously been convicted of this burglary. Mr. Jones was subsequently arrested on September 21, 2011.

On May 14, 2012, Mr. Jones pleaded guilty, without a plea agreement, to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The PSR revealed that Mr. Jones's criminal history included four prior burglary convictions: (1) a 1999 conviction for second degree burglary in Springfield, Missouri; (2) a 2000 conviction for second degree burglary in Springfield, Missouri; (3) another 2000 conviction for second degree burglary in Springfield, Missouri; and (4) a 2009 conviction for burglary in Wichita, Kansas. Based on these prior convictions, Mr. Jones qualified as an Armed Career Criminal within the meaning of U.S.S.G. § 4B1.4 and 18 U.S.C. § 924(e), warranting a base offense level of thirty-three under U.S.S.G. § 4B1.4 and a mandatory minimum fifteen-year sentence.

Mr. Jones's base offense level was reduced to thirty due to his acceptance of responsibility. This offense level, combined with Mr. Jones's criminal history category of V, resulted in an advisory Guidelines sentencing range of 151 to 188 months' imprisonment. However, because Mr. Jones was deemed an Armed Career Criminal subject to 18 U.S.C. § 924(e)'s mandatory fifteen-year minimum sentence, the PSR determined his Guidelines range to be 180 to 188 months' imprisonment.

Prior to being sentenced, Mr. Jones filed a Sentencing Memorandum, along with numerous supplemental memoranda, in which he raised each of the claims that are before us on appeal. Mr. Jones urged the district court to disregard the ACCA and sentence him to a term of sixty-three months' imprisonment based solely on the sentencing factors under 18 U.S.C. § 3553(a). The district court rejected each of Mr. Jones's objections, and held that Mr. Jones was subject to the mandatory minimum sentence under the ACCA. Accordingly, on September 24, 2012, the district court sentenced Mr. Jones to a term of 180 months' imprisonment to be followed by a term of five years' supervised release. Mr. Jones timely appealed.

II

Where a defendant "adequately objects to the introduction of a prior conviction because . . . the defendant was pardoned or has had civil rights restored, we will review de novo the district court's legal decision as to the admissibility of such prior conviction and we will review the court's underlying factual findings for clear error." United States v. Flower, 29 F.3d 530, 536 (10th Cir. 1994) (applying this standard in the context of 18 U.S.C. § 922(g)).

"We review a sentence enhancement imposed under the ACCA de novo." United States v. Delossantos, 680 F.3d 1217, 1219 (10th Cir. 2012); see United States v. Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990) ("We will review de novo the trial court's interpretation and application of the ACCA."). Whether a defendant's "juvenile adjudication qualifies as a violent felony conviction under the ACCA is a legal question that we review de novo." United States v. Washington, 706 F.3d 1215, 1217 (10th Cir. 2012). Similarly, "[w]e review constitutional challenges to a sentence de novo, " United States v. Angelos, 433 F.3d 738, 754 (10th Cir. 2006), including whether a criminal sentence violates the Eighth Amendment's prohibition against cruel and unusual punishment, see United States v. Yeley-Davis, 632 F.3d 673, 682 (10th Cir. 2011).

We turn first to Mr. Jones's argument that the restoration of his civil rights as to his three prior burglary convictions was sufficient to trigger operation of 18 U.S.C. § 921(a)(20), which excludes convictions "for which a person has been pardoned or has had civil rights restored." 18 U.S.C. § 921(a)(20). We then turn to Mr. Jones's remaining arguments, none of which are successful. Most ...


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