United States v. Houston Warren Jones

905 F.2d 867, 1990 U.S. App. LEXIS 10894, 1990 WL 87349
CourtCourt of Appeals for the Fifth Circuit
DecidedJune 28, 1990
Docket89-6240
StatusPublished
Cited by49 cases

This text of 905 F.2d 867 (United States v. Houston Warren Jones) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Houston Warren Jones, 905 F.2d 867, 1990 U.S. App. LEXIS 10894, 1990 WL 87349 (5th Cir. 1990).

Opinions

POLITZ, Circuit Judge:

The district court departed upwards from the Sentencing Guidelines in its sentencing of Houston Warren Jones. Finding that the trial court did not state adequate reasons for departure consistent with the policies underlying the Guidelines, we vacate the sentences and remand for resentencing.

Background

Arrested for selling cocaine to an undercover law enforcement officer in exchange for $130 in food stamps, Jones was indicted for distribution of cocaine, 21 U.S.C. § 841(a)(1), and unauthorized acquisition and possession of food stamps, 7 U.S.C. § 2024(b). He pled guilty to both counts in exchange for the government's promise not to prosecute him for forging his deceased mother's signature on social security checks and to stand silent at sentencing. The court accepted his pleas.

At sentencing the court approved and adopted the sentencing calculations in the presentence investigation (PSI) report based on the Sentencing Guidelines. This calculation resulted in a total offense level of 11 and a Criminal History Category of V, establishing a sentencing range of 24 to 30 months imprisonment. Concluding that the Guidelines did not adequately account for Jones' criminal history, the court departed upwards and imposed a ten-year sentence on Count I and a concurrent five-year sentence on Count II. Jones timely appealed.

Analysis

Jones first attacks his convictions on guilty pleas, maintaining that the court's departure from the Guidelines rendered his guilty pleas involuntary because in deciding to plead guilty, he relied on his attorney's representation that he would be sentenced within the guideline computation. This argument lacks merit. Rule 11(c) of the Federal Rules of Criminal Procedure requires only that the defendant be informed of the maximum prison term and fine for the offense charged. "As long as the [defendant] `understood the length of time he might possibly receive, he was fully aware of his plea's consequences.'" United States v. Rivera, 898 F.2d 442, 447 (5th Cir.1990), quoting Barbee v. Ruth, 678 F.2d 634, 635 (5th Cir.), cert. denied, 459 U.S. 867, 103 S.Ct. 149, 74 L.Ed.2d 125 (1982). The Guidelines make no change in substantive penalties but rather "provide a structure for case analysis so as to minimize disparate sentencing on like facts." Id. The district court is not required to calculate or explain the applicable guideline sentence before accepting a guilty plea, United States v. Fernandez, 877 F.2d 1138 (2d Cir.1989), and erroneous advice of defense counsel as to the guideline sentence does not constitute a violation of Rule 11, United States v. Turner, 881 F.2d 684 (9th Cir.), cert. denied, - U.S. -, 110 S.Ct. 199, 107 L.Ed.2d 153 (1989). Analogously, the court's decision to impose a sentence different than that indicated by the Guide[869]*869lines does not render a guilty plea unknowing or involuntary.

Before accepting the guilty pleas the court informed Jones both of the statutory maximum sentences and its authority to impose a sentence more severe than that indicated by the Guidelines. It then imposed sentences below the statutory maximum for Count I and at the statutory maximum for Count II. We hold that Jones’ pleas were knowing and voluntary. His challenges to their validity are rejected.

Jones also challenges the adequacy of the court’s grounds for departure and the reasonableness of the sentences imposed. Finding the court’s explanation of its departure inadequate, we cannot and do not reach the reasonableness issue.

A court may depart from the Guidelines on the basis of aggravating or mitigating circumstances not considered or inadequately considered by the Guidelines, provided that the court states reasons for its departure consistent with the policies underlying the Guidelines and the sentence imposed is reasonable in light of all the circumstances, including the articulated rationale. 18 U.S.C. §§ 3553(b), (c), 3742(e); United States v. Shaw, 891 F.2d 528 (5th Cir.1989). Mere disagreement with the guidelines is not an adequate basis. United States v. Lopez, 871 F.2d 513 (5th Cir.1989).

We are cognizant of a tension, if indeed not an inconsistency, between our holdings in Lopez (vacating a sentence which was 2.4 times greater than the guideline maximum); United States v. Harvey, 897 F.2d 1300 (5th Cir.1990) (upholding a sentence which was 2.5 times greater than the guideline maximum); and United States v. Landry, 903 F.2d 334 (5th Cir.1990) (vacating a sentence 3.5 times greater than the guideline maximum). In the instant case the sentence imposed is 4 times greater than the guideline maximum. We opt to follow our oldest (Lopez) and most recent {Landry) decisions, necessarily leaving to the en banc court the resolution' of any inconsistency or conflict.

Guideline § 4A1.3 explicitly authorizes departure “[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” Examples include exclusion of convictions from the criminal history score due to staleness, consolidation of sentences for a series of prior offenses, extreme leniency in sentencing for a prior serious offense for, inter alia, cooperation in the prosecution of other defendants, similarity of past offenses to the current offense, and continued criminal activity while free on bail. Guideline § 4A1.3; United States v. Sanchez, 893 F.2d 679 (5th Cir.1990); United States v. Geiger, 891 F.2d 512 (5th Cir.1989), cert. denied, — U.S. -, 110 S.Ct. 1825, 108 L.Ed.2d 954 (1990); United States v. Lopez; United States v. Fisher, 868 F.2d 128 (5th Cir.), cert. denied, — U.S. -, 110 S.Ct. 111, 107 L.Ed.2d 73 (1989).

Relevant to departure, Guideline § 4A1.3 provides:

In considering a departure under this provision, the Commission intends that the court use, as a reference, the guideline range for a defendant with a higher or lower criminal history category, as applicable. .

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Bluebook (online)
905 F.2d 867, 1990 U.S. App. LEXIS 10894, 1990 WL 87349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-houston-warren-jones-ca5-1990.