FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6202 (D.C. No. 5:07-CR-00294-F-1) CAMERON TAEVON JONES, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________
This appeal arises from the district court’s order revoking Cameron Jones’
supervised release and imposing a 36-month prison sentence. Jones’ counsel filed an
Anders brief and moved to withdraw, asserting that the record gives rise to no
discernible non-frivolous issues on appeal. See Anders v. California, 386 U.S. 738,
744 (1967) (stating that if after “conscientious examination” of record, counsel finds
appeal “wholly frivolous,” counsel may move to withdraw and contemporaneously
file “a brief referring to anything in the record that might arguably support the
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. appeal”). After conducting our own review of the record, we agree with counsel’s
assessment. Accordingly, we dismiss the appeal and grant counsel’s motion to
withdraw. See id.
BACKGROUND
In 2007, Jones was convicted of possessing cocaine with intent to distribute.
The district court imposed a 71-month prison sentence and 5 years of supervised
release.
Jones was released from prison in August 2014. Less than a month later,
Jamaris Miles was shot to death. Two days after that, the United States Probation
Office moved to revoke Jones’ supervised release, alleging that Jones violated the
conditions of his release by murdering Miles and possessing a firearm.
At the revocation hearing, Inspector Robert Benavides—the detective who
investigated Miles’ murder—testified about a witness statement he obtained from
Lakisha Palmore after Miles’ shooting. The government made no effort to secure
Palmore’s presence at the revocation hearing. But according to Benavides, Palmore
stated that she saw Jones shoot Miles.
Relying heavily on Benavides’ testimony about Palmore’s statement, the
district court found, by a preponderance of the evidence, that Jones violated the terms
of his supervised release by murdering Miles and possessing a firearm. The district
court then revoked Jones’ supervised release and imposed a 36-month prison
sentence to be followed by 10 years of supervised release.
2 We reversed. Specifically, we held that the district court abused its discretion
in considering Palmore’s statements without balancing (1) Jones’ interest in his
constitutional right to confront Palmore against (2) the government’s good cause for
depriving him of that right. United States v. Jones, 818 F.3d 1091, 1099–1102 (10th
Cir. 2016).
On remand, Palmore testified that she saw Jones shoot Miles. And while the
district court acknowledged that Palmore’s credibility was hardly “unblemished,” it
ultimately concluded that a preponderance of the evidence established Jones killed
Miles. R. vol. 3, 209. The district court then “reaffirmed and entered” its previous
order: it revoked Jones’ supervised release, sentenced him to 36 months in prison,
and imposed 10 years of supervised release. Id. at 210.
Finally, as a condition of that supervised release, the district court again
imposed a “search condition.” Id. at 211. Under the terms of that condition, Jones
“must submit to a search of his person, property, electronic device or any automobile
under his control to be conducted in a reasonable manner and at a reasonable time,
for the purpose of detecting firearms and/or ammunition at the direction of the
probation officer upon reasonable suspicion.” R. vol. 1, 33. Jones appeals.
DISCUSSION
Defense counsel identifies three potential issues in his Anders brief:
(1) whether there was sufficient evidence to prove Jones violated the terms of his
supervised release; (2) whether the sentence the district court imposed upon
3 revocation is procedurally and substantively reasonable; and (3) whether the district
court committed plain error in imposing the search condition.
We agree with defense counsel that Jones couldn’t mount a non-frivolous
challenge to the sufficiency of the evidence. True, Palmore’s credibility was not—as
the district court readily acknowledged—“unblemished.” R. vol. 3, 209. Still, the
district court carefully and thoroughly analyzed Palmore’s testimony and previous
statements to police and found them sufficiently credible to satisfy the
preponderance-of-the-evidence standard. Such credibility determinations are entitled
to great deference. See United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir.
2015), cert. denied, 136 S. Ct. 1700 (2016). Finding nothing in the district court’s
factual findings that we might characterize as clearly erroneous, see id., we conclude
that any sufficiency-of-the-evidence argument would be frivolous.
We reach the same conclusion regarding the second potential basis for appeal
that defense counsel identifies: whether Jones’ sentence is procedurally and
substantively unreasonable. To the extent that counsel suggests the district court
failed to adequately articulate its reasons for imposing a 36-month prison sentence
and 10 years of supervised release, that argument would trigger plain-error review
because Jones failed to raise it below. See United States v. Lente, 647 F.3d 1021,
1030 (10th Cir. 2011) (characterizing challenge to adequacy of district court’s
explanation for chosen sentence as procedural, as opposed to substantive, challenge);
United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008) (“As a
general rule, when a defendant fails to preserve an objection to the procedural
4 reasonableness of his sentence, we review only for plain error.”). The same would be
true of any argument that the district court failed to consider the applicable policy
statements. See United States v. Franklin, 785 F.3d 1365, 1371 n.3 (10th Cir.), cert.
denied, 136 S. Ct. 523 (2015).
Jones couldn’t satisfy our plain-error test here. In its initial order revoking
Jones’ supervised release, the district court explicitly stated that it had considered the
Free access — add to your briefcase to read the full text and ask questions with AI
FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 8, 2017 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 16-6202 (D.C. No. 5:07-CR-00294-F-1) CAMERON TAEVON JONES, (W.D. Okla.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, BALDOCK, and MORITZ, Circuit Judges. _________________________________
This appeal arises from the district court’s order revoking Cameron Jones’
supervised release and imposing a 36-month prison sentence. Jones’ counsel filed an
Anders brief and moved to withdraw, asserting that the record gives rise to no
discernible non-frivolous issues on appeal. See Anders v. California, 386 U.S. 738,
744 (1967) (stating that if after “conscientious examination” of record, counsel finds
appeal “wholly frivolous,” counsel may move to withdraw and contemporaneously
file “a brief referring to anything in the record that might arguably support the
* After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore submitted without oral argument. This order and judgment isn’t binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. But it may be cited for its persuasive value. See Fed. R. App. P. 32.1; 10th Cir. R. 32.1. appeal”). After conducting our own review of the record, we agree with counsel’s
assessment. Accordingly, we dismiss the appeal and grant counsel’s motion to
withdraw. See id.
BACKGROUND
In 2007, Jones was convicted of possessing cocaine with intent to distribute.
The district court imposed a 71-month prison sentence and 5 years of supervised
release.
Jones was released from prison in August 2014. Less than a month later,
Jamaris Miles was shot to death. Two days after that, the United States Probation
Office moved to revoke Jones’ supervised release, alleging that Jones violated the
conditions of his release by murdering Miles and possessing a firearm.
At the revocation hearing, Inspector Robert Benavides—the detective who
investigated Miles’ murder—testified about a witness statement he obtained from
Lakisha Palmore after Miles’ shooting. The government made no effort to secure
Palmore’s presence at the revocation hearing. But according to Benavides, Palmore
stated that she saw Jones shoot Miles.
Relying heavily on Benavides’ testimony about Palmore’s statement, the
district court found, by a preponderance of the evidence, that Jones violated the terms
of his supervised release by murdering Miles and possessing a firearm. The district
court then revoked Jones’ supervised release and imposed a 36-month prison
sentence to be followed by 10 years of supervised release.
2 We reversed. Specifically, we held that the district court abused its discretion
in considering Palmore’s statements without balancing (1) Jones’ interest in his
constitutional right to confront Palmore against (2) the government’s good cause for
depriving him of that right. United States v. Jones, 818 F.3d 1091, 1099–1102 (10th
Cir. 2016).
On remand, Palmore testified that she saw Jones shoot Miles. And while the
district court acknowledged that Palmore’s credibility was hardly “unblemished,” it
ultimately concluded that a preponderance of the evidence established Jones killed
Miles. R. vol. 3, 209. The district court then “reaffirmed and entered” its previous
order: it revoked Jones’ supervised release, sentenced him to 36 months in prison,
and imposed 10 years of supervised release. Id. at 210.
Finally, as a condition of that supervised release, the district court again
imposed a “search condition.” Id. at 211. Under the terms of that condition, Jones
“must submit to a search of his person, property, electronic device or any automobile
under his control to be conducted in a reasonable manner and at a reasonable time,
for the purpose of detecting firearms and/or ammunition at the direction of the
probation officer upon reasonable suspicion.” R. vol. 1, 33. Jones appeals.
DISCUSSION
Defense counsel identifies three potential issues in his Anders brief:
(1) whether there was sufficient evidence to prove Jones violated the terms of his
supervised release; (2) whether the sentence the district court imposed upon
3 revocation is procedurally and substantively reasonable; and (3) whether the district
court committed plain error in imposing the search condition.
We agree with defense counsel that Jones couldn’t mount a non-frivolous
challenge to the sufficiency of the evidence. True, Palmore’s credibility was not—as
the district court readily acknowledged—“unblemished.” R. vol. 3, 209. Still, the
district court carefully and thoroughly analyzed Palmore’s testimony and previous
statements to police and found them sufficiently credible to satisfy the
preponderance-of-the-evidence standard. Such credibility determinations are entitled
to great deference. See United States v. Jordan, 806 F.3d 1244, 1252 (10th Cir.
2015), cert. denied, 136 S. Ct. 1700 (2016). Finding nothing in the district court’s
factual findings that we might characterize as clearly erroneous, see id., we conclude
that any sufficiency-of-the-evidence argument would be frivolous.
We reach the same conclusion regarding the second potential basis for appeal
that defense counsel identifies: whether Jones’ sentence is procedurally and
substantively unreasonable. To the extent that counsel suggests the district court
failed to adequately articulate its reasons for imposing a 36-month prison sentence
and 10 years of supervised release, that argument would trigger plain-error review
because Jones failed to raise it below. See United States v. Lente, 647 F.3d 1021,
1030 (10th Cir. 2011) (characterizing challenge to adequacy of district court’s
explanation for chosen sentence as procedural, as opposed to substantive, challenge);
United States v. Martinez-Barragan, 545 F.3d 894, 899 (10th Cir. 2008) (“As a
general rule, when a defendant fails to preserve an objection to the procedural
4 reasonableness of his sentence, we review only for plain error.”). The same would be
true of any argument that the district court failed to consider the applicable policy
statements. See United States v. Franklin, 785 F.3d 1365, 1371 n.3 (10th Cir.), cert.
denied, 136 S. Ct. 523 (2015).
Jones couldn’t satisfy our plain-error test here. In its initial order revoking
Jones’ supervised release, the district court explicitly stated that it had considered the
relevant policy statements. Likewise, at the initial revocation hearing, the district
court explained the basis for its sentencing decision: it noted (1) Jones’ “background
of gang-related activity”; (2) the severity of the violation; and (3) the need for
incapacitation. R. vol. 3, 64. Finally, in revoking Jones’ supervised release on
remand, the district court incorporated this earlier analysis by reference: it stated it
was “dispos[ing] of the matter on the very same basis.” Id. at 211. Accordingly, any
argument that the district court committed procedural error—let alone plain
procedural error—would be frivolous.
Based on the district court’s finding that Jones committed murder less than one
month after his 2014 release, we reach the same conclusion about any substantive
challenge to the length of Jones’ sentence, despite the fact that it exceeds the
applicable 18-to-24-month recommendation. See U.S.S.G. § 7B1.4; United States v.
Cordova, 461 F.3d 1184, 1188 (10th Cir. 2006) (“[A] sentence in excess of that
recommended by the Chapter 7 policy statements will be upheld ‘if it can be
determined from the record to have been reasoned and reasonable.’” (quoting United
States v. Rodriguez-Quintanilla, 442 F.3d 1254, 1258 (10th Cir. 2006))).
5 Finally, we agree that any challenge to the district court’s decision to impose a
search condition would also be frivolous. Because Jones didn’t object to this
condition below, we would again review such a challenge only for plain error. United
States v. Barela, 797 F.3d 1186, 1192 (10th Cir. 2015). And because we’ve
previously upheld a more restrictive search condition in less egregious circumstances
under a more favorable standard of review, Jones couldn’t make a showing of plain
error here. See United States v. Hanrahan, 508 F.3d 962, 971 (10th Cir. 2007)
(holding that district court didn’t abuse its discretion in imposing suspicionless-
search condition where defendant had been “convicted of unlawfully possessing a
firearm”); see also United States v. Watson, 766 F.3d 1219, 1228 n.5 (10th Cir. 2014)
(describing “abuse-of-discretion standard” as “more generous” than “plain-error
standard”).
CONCLUSION
Because Jones’ appeal presents no issues that are arguable on their merits, we
dismiss the appeal and grant defense counsel’s motion to withdraw.
Entered for the Court
Nancy L. Moritz Circuit Judge