United States v. Jones

660 F. App'x 666
Court of Appeals for the Tenth Circuit·Decided September 14, 2016·No. 15-3166·Unpublished·Cited by 1 cases

Opinion

ORDER AND JUDGMENT *

Mary Beck Briscoe, Circuit Judge

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.

Durell Jones appeals from the sentence imposed after his supervised release was revoked. He argues that (1) the district court procedurally and substantively erred by imposing his revocation sentence consecutive to, rather than concurrent with, his state prison sentence arising from the same offenses as his revocation, and (2) the district court’s imposition of a ten-year additional term of supervised release was substantively unreasonable. Exercising jurisdiction under 18 U.S.C. § 3724(a) and 28 U.S.C. § 1291, we affirm.

I

Jones was serving a four-year term of supervised release when he committed several state crimes in Colorado, including armed robberies, assault, and leading law enforcement officers on a high-speed chase. For these new offenses, he was sentenced to approximately twenty-six years of imprisonment by the state court.

Prior to these crimes, Jones came before the district court on two occasions for minor violations of his supervised release, but his release was not revoked. After Jones’s new state convictions, the federal district court held a hearing to determine whether to revoke Jones’s supervised release and to determine his revocation .sentence. Jones stipulated to the violations. The government argued for a consecutive sentence at the top of the range calculated using the United States Sentencing Guidelines, which was 24-30 months’ imprisonment. Jones argued for a time-served sentence, or a sentence at the lower end of the Guidelines range, to be served concurrent to his state sentence.

The government argued that Jones’s sentence should run consecutively because a provision of the Guidelines states:

Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be *668 served consecutively to any sentence of imprisonment that the defendant is serving, whether or not the sentence of imprisonment being served resulted from the conduct that is the basis of the revocation of probation or supervised release.

U.S.S.G. § 7B1.3(f). The government also highlighted the nature of Jones’s violations, characterizing them as “abscond[ing]” on a “violent crime spree.” ROA Vol. 2 at 11. It argued that Jones’s violations were “the kind of violation that is most severe,” and that a consecutive sentence at the high end of the Guidelines range was necessary.

Jones argued that, notwithstanding U.S.S.G. § 7B1.3(f), the court should exercise its discretion under 18 U.S.C. § 3584, which states:

[I]f a term of imprisonment is imposed on a defendant who is already subject to an undischarged term of imprisonment, the terms may run concurrently or consecutively _Multiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrent-ly_The court, in determining whether the terms imposed are to be ordered to run concurrently or consecutively, shall consider ... the factors set forth in [18 U.S.C. § ] 3553(a).

18 U.S.C. § 3584(a) and (b). Jones further argued that a concurrent sentence was more appropriate given the fact that he will be in his late fifties when discharged from his state sentence, and that statistically, his risk of recidivism will be relatively low.

After discussing Jones’s arguments, the district court stated it “basically agree[d] with the government’s position here, everything that [the government’s attorney] just said.” ROA Vol. 2 at 18-26. It found Jones’s argument about his age unpersuasive because “the history and characteristics of the defendant by the time he’s released ... are impossible to imagine,” and was instead persuaded by the government’s argument that the court was “sentencing the person who is standing here now.” Id. at 21, 24. It sentenced Jones to a consecutive thirty-month term of imprisonment and, despite the government not asking for it, ten years of additional supervised release. Jones does not challenge the length of the custodial sentence, but challenges its consecutive imposition and the length of his additional supervised release.

II

We review a district court’s decision to impose a consecutive sentence rather than a concurrent one for an abuse of discretion. United States v. Hurlich, 293 F.3d 1223, 1230 (10th Cir. 2002). A district court abuses its discretion when it makes the legal error of applying the Guidelines as mandatory, rather than advisory. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) (describing the abuse-of-discretion review of sentences as including review for “significant procedural error, such as .,. treating the Guidelines as mandatory”); United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th Cir. 2011) (“An error of law is per se an abuse of discretion.”). We will remand for resen-tencing only if the procedural errors were not harmless. United States v. Sanchez-Leon, 764 F.3d 1248, 1262 (10th Cir. 2014). A district court may also abuse its discretion by imposing a substantively unreasonable sentence. A sentence is unreasonable if it is “arbitrary, capricious, whimsical, or manifestly unreasonable” under the circumstances. United States v. Damato, 672 F.3d 832, 838 (10th Cir. 2012) (quoting United States v. Lewis, 594 F.3d 1270, 1277 (10th Cir. 2010)).

*669 A Procedural and Substantive Reasonableness of Imposing Consecutive Sentence

Jones first argues that the district court procedurally erred by treating U.S.S.G. § 7B1.3(f) as mandatory, and did not exercise its discretion under 18 U.S.C. § 3584. The government agrees, as it must, that treating U.S.S.G. § 7B1.3(f) as mandatory rather than advisory constitutes procedural error. See Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v.

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