NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10287
Plaintiff-Appellee, D.C. No. 1:21-cr-00106-DKW-1
v. MEMORANDUM* JAMIL JONES,
Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii Derrick Watson, Chief District Judge, Presiding
Argued and Submitted October 5, 2023 Honolulu, Hawaii
Before: BERZON, MILLER, and VANDYKE, Circuit Judges.
Jamil Jones appeals from his conviction and sentencing on two counts of drug
distribution and one count of drug conspiracy. For the reasons below, we affirm his
convictions and reverse, vacate, and remand his sentence.
1. The district court did not err by admitting lay voice-identification
testimony.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 The government introduced recorded calls between Felix Thaxton—Jones’s
alleged coconspirator—and a contact known as “Navigator.” Agent Gabriel Gray, a
nonexpert, testified that “Navigator” was Jones. Gray’s “[l]ay opinion . . . [wa]s
permissible” because he had the “requisite familiarity with [Jones,] the speaker” he
identified. United States v. Ortiz, 776 F.3d 1042, 1044 (9th Cir. 2015) (quoting
United States v. Thomas, 586 F.2d 123, 133 (9th Cir. 1978)). Gray listened to
authenticated prison calls Jones made and spent several hours with Jones following
his June 2021 arrest. These experiences meet our standard, as Gray “need only be
‘minimally familiar with the voice he identifies.’” Id. at 1044–45 (quoting United
States v. Plunk, 153 F.3d 1011, 1023 (9th Cir. 1998)).
2. Jones challenges the distribution of transcripts of the “Navigator” calls,
with Jones’s name and initials included, to the jury. Because he did not state “specific
grounds for his objection” at trial, we review for plain error. United States v. Gomez-
Norena, 908 F.2d 497, 500 (9th Cir. 1990).
Plain error requires demonstrating, among other factors, that an error “affected
[Jones’s] substantial rights.” United States v. Johnson, 979 F.3d 632, 636 (9th Cir.
2020). Even if the district court erred in allowing the transcripts, Jones did not show
that such error affected his substantial rights, given Agent Gray’s voice-
identification testimony, along with other evidence described below connecting
2 Jones to the phone number used in the recorded calls. See United States v. Benamor,
937 F.3d 1182, 1189 (9th Cir. 2019). Admitting the transcripts was not plain error.
3. Nor did the district court plainly err in admitting evidence from a search of
Thaxton’s Hawaii apartment.
The government presented evidence from the search detailing large amounts
of methamphetamine and heroin, over $45,000 in cash, guns, and other drugs. This
evidence was “probative of an overall narcotics trafficking conspiracy.” United
States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). “[T]he government
presented sufficient evidence linking [Jones] to the evidence” in the apartment by
demonstrating his role supplying methamphetamine and heroin to Thaxton,
including in the June 2021 package. Id. Evidence of Thaxton’s drug distribution
illustrates the downstream aspects of Jones’s “narcotics trafficking conspiracy” after
the drugs arrived in Hawaii. Id.
Courts “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The search
evidence did not unfairly prejudice Jones, as “it was not particularly damning in light
of all the other evidence directly relating to [his] charged” drug offenses. United
States v. Anderson, 741 F.3d 938, 950 (9th Cir. 2013).
Plain error requires Jones to show, among other factors, that “there was an
error” that was “clear or obvious.” Johnson, 979 F.3d at 636. There was no error
3 here, much less a clear one. Given other evidence that Jones distributed
methamphetamine and heroin to Thaxton, evidence from Thaxton’s apartment was
probative of Jones’s conspiracy charge and not unfairly prejudicial.
4. We also hold that each of Jones’s convictions is supported by sufficient
evidence. 21 U.S.C. § 841(a) requires “pro[of] beyond a reasonable doubt that the
defendant (1) knowingly or intentionally (2) distributed (3) any controlled
substance.” United States v. Collazo, 984 F.3d 1308, 1320 (9th Cir. 2021) (en banc)
(footnote and internal quotation marks omitted). Viewing the record in the light most
favorable to the prosecution, see United States v. Del Toro-Barboza, 673 F.3d 1136,
1143 (9th Cir. 2012), a rational trier of fact could find beyond a reasonable doubt the
essential elements of (i) distribution of at least 50g of methamphetamine and (ii)
distribution of at least 100g of heroin, both in violation of § 841(a).
Considerable evidence showed that Jones shipped Thaxton a package with
over 3,000g of methamphetamine and over 2,000g of heroin in June 2021. That
evidence included calls in which Jones discussed the package’s contents and delivery
information in significant detail; text messages from Jones showing the package’s
tracking number; and an exact match between the packaging materials and items in
Jones’s father’s garage. Trial testimony confirmed the “drug type and quantity” in
the June 2021 package. Collazo, 984 F.3d at 1322.
4 Jones disputes his connection to the (213) phone number used in calls and text
messages with Thaxton. Jones provided that number to Southwest Airlines when
flying to Hawaii and to the state of Hawaii in his COVID-19 paperwork. The number
matched the phone found outside Jones’s hotel room in Desert Hot Springs, which
contained app accounts linked to Jones’s full name and the email
navigator0071p@gmail.com. And Thaxton identified that number (listed on his
phone as “Navigator”) as Jones’s. In addition to Agent Gray’s voice-identification
testimony, this evidence sufficiently linked Jones to the drug-related discussions
from the (213) number.
Given this evidence, a reasonable trier of fact could conclude beyond a
reasonable doubt that Jones was the person who knowingly mailed over 50g of
methamphetamine and over 100g of heroin to Thaxton.
5. Sufficient evidence also supports Jones’s drug-conspiracy conviction.
Free access — add to your briefcase to read the full text and ask questions with AI
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 3 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 22-10287
Plaintiff-Appellee, D.C. No. 1:21-cr-00106-DKW-1
v. MEMORANDUM* JAMIL JONES,
Defendant-Appellant.
Appeal from the United States District Court for the District of Hawaii Derrick Watson, Chief District Judge, Presiding
Argued and Submitted October 5, 2023 Honolulu, Hawaii
Before: BERZON, MILLER, and VANDYKE, Circuit Judges.
Jamil Jones appeals from his conviction and sentencing on two counts of drug
distribution and one count of drug conspiracy. For the reasons below, we affirm his
convictions and reverse, vacate, and remand his sentence.
1. The district court did not err by admitting lay voice-identification
testimony.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
1 The government introduced recorded calls between Felix Thaxton—Jones’s
alleged coconspirator—and a contact known as “Navigator.” Agent Gabriel Gray, a
nonexpert, testified that “Navigator” was Jones. Gray’s “[l]ay opinion . . . [wa]s
permissible” because he had the “requisite familiarity with [Jones,] the speaker” he
identified. United States v. Ortiz, 776 F.3d 1042, 1044 (9th Cir. 2015) (quoting
United States v. Thomas, 586 F.2d 123, 133 (9th Cir. 1978)). Gray listened to
authenticated prison calls Jones made and spent several hours with Jones following
his June 2021 arrest. These experiences meet our standard, as Gray “need only be
‘minimally familiar with the voice he identifies.’” Id. at 1044–45 (quoting United
States v. Plunk, 153 F.3d 1011, 1023 (9th Cir. 1998)).
2. Jones challenges the distribution of transcripts of the “Navigator” calls,
with Jones’s name and initials included, to the jury. Because he did not state “specific
grounds for his objection” at trial, we review for plain error. United States v. Gomez-
Norena, 908 F.2d 497, 500 (9th Cir. 1990).
Plain error requires demonstrating, among other factors, that an error “affected
[Jones’s] substantial rights.” United States v. Johnson, 979 F.3d 632, 636 (9th Cir.
2020). Even if the district court erred in allowing the transcripts, Jones did not show
that such error affected his substantial rights, given Agent Gray’s voice-
identification testimony, along with other evidence described below connecting
2 Jones to the phone number used in the recorded calls. See United States v. Benamor,
937 F.3d 1182, 1189 (9th Cir. 2019). Admitting the transcripts was not plain error.
3. Nor did the district court plainly err in admitting evidence from a search of
Thaxton’s Hawaii apartment.
The government presented evidence from the search detailing large amounts
of methamphetamine and heroin, over $45,000 in cash, guns, and other drugs. This
evidence was “probative of an overall narcotics trafficking conspiracy.” United
States v. Crespo de Llano, 838 F.2d 1006, 1018 (9th Cir. 1987). “[T]he government
presented sufficient evidence linking [Jones] to the evidence” in the apartment by
demonstrating his role supplying methamphetamine and heroin to Thaxton,
including in the June 2021 package. Id. Evidence of Thaxton’s drug distribution
illustrates the downstream aspects of Jones’s “narcotics trafficking conspiracy” after
the drugs arrived in Hawaii. Id.
Courts “may exclude relevant evidence if its probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid. 403. The search
evidence did not unfairly prejudice Jones, as “it was not particularly damning in light
of all the other evidence directly relating to [his] charged” drug offenses. United
States v. Anderson, 741 F.3d 938, 950 (9th Cir. 2013).
Plain error requires Jones to show, among other factors, that “there was an
error” that was “clear or obvious.” Johnson, 979 F.3d at 636. There was no error
3 here, much less a clear one. Given other evidence that Jones distributed
methamphetamine and heroin to Thaxton, evidence from Thaxton’s apartment was
probative of Jones’s conspiracy charge and not unfairly prejudicial.
4. We also hold that each of Jones’s convictions is supported by sufficient
evidence. 21 U.S.C. § 841(a) requires “pro[of] beyond a reasonable doubt that the
defendant (1) knowingly or intentionally (2) distributed (3) any controlled
substance.” United States v. Collazo, 984 F.3d 1308, 1320 (9th Cir. 2021) (en banc)
(footnote and internal quotation marks omitted). Viewing the record in the light most
favorable to the prosecution, see United States v. Del Toro-Barboza, 673 F.3d 1136,
1143 (9th Cir. 2012), a rational trier of fact could find beyond a reasonable doubt the
essential elements of (i) distribution of at least 50g of methamphetamine and (ii)
distribution of at least 100g of heroin, both in violation of § 841(a).
Considerable evidence showed that Jones shipped Thaxton a package with
over 3,000g of methamphetamine and over 2,000g of heroin in June 2021. That
evidence included calls in which Jones discussed the package’s contents and delivery
information in significant detail; text messages from Jones showing the package’s
tracking number; and an exact match between the packaging materials and items in
Jones’s father’s garage. Trial testimony confirmed the “drug type and quantity” in
the June 2021 package. Collazo, 984 F.3d at 1322.
4 Jones disputes his connection to the (213) phone number used in calls and text
messages with Thaxton. Jones provided that number to Southwest Airlines when
flying to Hawaii and to the state of Hawaii in his COVID-19 paperwork. The number
matched the phone found outside Jones’s hotel room in Desert Hot Springs, which
contained app accounts linked to Jones’s full name and the email
navigator0071p@gmail.com. And Thaxton identified that number (listed on his
phone as “Navigator”) as Jones’s. In addition to Agent Gray’s voice-identification
testimony, this evidence sufficiently linked Jones to the drug-related discussions
from the (213) number.
Given this evidence, a reasonable trier of fact could conclude beyond a
reasonable doubt that Jones was the person who knowingly mailed over 50g of
methamphetamine and over 100g of heroin to Thaxton.
5. Sufficient evidence also supports Jones’s drug-conspiracy conviction.
Viewing the record in the light most favorable to the prosecution, see Del Toro-
Barboza, 673 F.3d at 1143, a rational trier of fact could find the essential elements
of conspiracy to distribute at least 50g of methamphetamine and at least 100g of
heroin in violation of 21 U.S.C. § 846. Convicting Jones required “pro[of] beyond a
reasonable doubt that (1) [he] agreed with another person that some member of the
conspiracy would commit the relevant underlying offense (here [distribution of a
controlled substance]), and that (2) [he] had the requisite intent necessary for a
5 conviction of the underlying offense.” Collazo, 984 F.3d at 1320. The June 2021
package satisfies the amount and type of drugs charged as the object of the
conspiracy.
There was sufficient evidence that Thaxton and Jones—“the buyer and seller,”
respectively—“had an agreement to further distribute the drug[s] in question.”
United States v. Moe, 781 F.3d 1120, 1124–25 (9th Cir. 2015) (internal quotation
marks omitted). Their relationship reflects several “factors that courts have
considered relevant” to the existence of an agreement. Id. at 1125. In their calls,
Jones and Thaxton discussed drug sales and distribution, including coded references
to methamphetamine and heroin, and Jones sought Thaxton’s appraisal of Hawaii
drug-market demand. The calls also evince trust between the two, as shown by
Jones’s willingness to have Thaxton “sit on that much money” owed to Jones for
several weeks, until Jones went to Hawaii and saw Thaxton in person. In text
messages going back at least to June 2020, Jones and Thaxton discussed distributing
drugs, made arrangements for funds generated by drug sales, and considered
forward-looking distribution. Evidence from Thaxton’s Hawaii apartment, including
large amounts of methamphetamine and heroin and indicia of a Hawaii drug-
trafficking operation, further shows the conspiracy’s downstream distribution by
Thaxton.
6 Considering the “totality of the circumstances,” a rational trier of fact could
conclude beyond a reasonable doubt that Jones and Thaxton did not have an arms-
length buyer-seller arrangement but an ongoing relationship with an “agreement for
[Thaxton’s] redistribution” of drugs. United States v. Loveland, 825 F.3d 555, 562
(9th Cir. 2016). That agreement was evidenced by “the level of trust demonstrated
between buyer and seller, including the[ir] use of codes; the length of time during
which sales were ongoing,” the fact that they “advised each other on the conduct of
the other’s business” by discussing demand for certain types and volumes of drugs,
and the quantity of drugs involved. Moe, 781 F.3d at 1125–26 (footnote omitted).
Jones’s willingness to provide drugs to Thaxton on credit “support[s] proof of a
conspiracy between the seller and the buyer for the buyer to resell to a third party.”
Loveland, 825 F.3d at 560; see Moe, 781 F.3d at 1126–27 (noting that a seller had an
“interest in fostering . . . downstream sales, which created the demand for his
repeated sales” to a buyer).
6. Jones also challenges two sentence enhancements.
(a) The district court abused its discretion by applying an enhancement
because “a dangerous weapon (including a firearm) was possessed,” U.S.S.G.
§ 2D1.1(b)(1), based on two guns found in Jones’s father’s garage unit.
Jones was regularly present at his father’s Los Angeles residence, where he
was relegated to the garage and not permitted in the house. But that garage was also
7 accessible to people other than Jones and contained others’ belongings, including his
father’s I.D. card. No evidence showed that Jones knew the guns were in the garage
or was otherwise connected to them. See United States v. Cazares, 121 F.3d 1241,
1245 (9th Cir. 1997). In particular, the guns were in a backpack, and the record does
not show that the backpack was found near the packaging materials attributed to
Jones. “[I]t is pure speculation whether [Jones] . . . ever had possession . . . of any
of the firearms.” Id. The district court abused its discretion in applying the
dangerous-weapon enhancement.
The firearms enhancement increased Jones’s Guidelines recommendation
from 324 to 405 months to 360 months to life. Although his 240-month sentence was
below the originally calculated range, “[a] below-Guidelines sentence does not avoid
or make harmless an error in the Guidelines calculation.” United States v. Lloyd, 807
F.3d 1128, 1174 n.19 (9th Cir. 2015). Misapplying the enhancement was thus not
harmless error. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 (9th Cir.
2011). We therefore reverse, vacate, and remand Jones’s sentence.
(b) The district court did not abuse its discretion by applying a sentence
enhancement based on Jones “recklessly creat[ing] a substantial risk of death or
serious bodily injury to another person in the course of fleeing from a law
enforcement officer.” U.S.S.G. § 3C1.2. The record supports a determination that,
8 during the car chase preceding his June 2021 arrest, Jones knew he was fleeing
specifically from law enforcement.
First, in the week before the chase, Jones had searched for information about
Thaxton’s recent arrest in Hawaii, indicating knowledge that law enforcement had
discovered his drug-distribution network. Second, Agent Gray testified that he heard
an officer radio that Jones saw that officer upon arriving at Jones’s father’s home
and then “t[ook] off.” Third, when Jones arrived at the home, physical markers
indicated the DEA’s recent presence, including a missing window and breached door.
Finally, Jones’s cell phone, which DEA agents were tracking, stopped transmitting
shortly after the car chase. This interruption could indicate that Jones turned his
phone off because it might be tracking him, a capability that law enforcement
officers possess but other pursuers generally would not. Taken as a whole, the record
supports the conclusion that Jones knew he was fleeing from the police.
AFFIRMED IN PART and REVERSED, VACATED, AND REMANDED IN PART.