FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2197 (D.C. No. 1:11-CR-02994-WJ-1) BRANDON LAWRENCE JONES, (D.N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, EBEL, and PHILLIPS, Circuit Judges. _________________________________
Brandon Jones appeals his sentence after pleading guilty to kidnapping.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On the night of November 5, 2011, Javier Vasquez was leaving a University of
Texas at El Paso basketball game when he was accosted by Jones. Displaying what
appeared to be a pistol in his waistband, Jones ordered Vasquez into his vehicle. He
then called to another man standing nearby, Jesus Gallegos, who also entered
Vasquez’s truck. Jones drove the vehicle, with Vasquez in the passenger seat and
Gallegos in the back.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Jones demanded that Vasquez provide his personal identification number and
direct them to a bank where Jones could withdraw funds. Gallegos grabbed
Vasquez’s head and face from behind and demanded the same. Vasquez complied,
and Jones obtained funds from Vasquez’s account at the bank. Jones then demanded
more money from Vasquez, who guided Jones to a different bank in El Paso where
Jones withdrew money several times in $300 increments. Jones gave Vasquez the
withdrawal receipts, telling him he would “need this for court.”
Vasquez begged to be released, noting that Jones and Gallegos had his truck
and wallet. But the pair refused, fearing that Vasquez would contact the police.
Nonetheless, it is clear that Jones and Gallegos lacked a coherent plan. Jones
repeatedly mentioned going north on a road trip, and at times treated Vasquez almost
as if he were a companion. He told Vasquez not to worry, and that he would be freed
eventually. Jones also forced Vasquez to drink tequila. But for most of the
misadventure, Jones and Gallegos essentially tortured Vasquez. Both men repeatedly
struck Vasquez during the encounter. At one point, Vasquez told Jones he had
missed a freeway entrance, prompting Jones to punch him in the head. Jones
threatened to shoot Vasquez. Gallegos grabbed Vasquez from behind and drove his
thumb into Vasquez’s left eye. At another point, Gallegos noticed that Vasquez had
loosened his seatbelt—in preparation for an escape attempt—and choked him with it.
Jones drove the truck to Las Cruces, New Mexico, and headed toward
Albuquerque. While in New Mexico, Jones stopped at another bank branch and
withdrew funds from Vasquez’s account. Also while in New Mexico, the vehicle
2 approached a U.S. Border Patrol checkpoint. Jones threatened to kill Vasquez if he
attempted to escape or alert Border Patrol at the checkpoint, saying “you may get me,
but I already killed three people; one more’s not gonna make a difference.” Gallegos
and Jones subsequently bound Vasquez’s hands, legs, and ankles with duct tape,
moved him to the back seat, and placed items over him. Apparently deciding that
arrangement would appear too suspicious, however, the pair cut Vasquez free.
Jones stopped the truck at a rest stop near Clines Corner, New Mexico, where
he and Gallegos fell asleep. After waiting to ensure the pair were actually
unconscious, Vasquez escaped from the truck and contacted law enforcement. He
was transported to a hospital in Albuquerque, where he was treated for pain in his
head, neck, and jaw, and for blurry vision in his left eye. Jones and Gallegos were
charged in federal court with kidnapping in interstate commerce in violation of 18
U.S.C. § 1201(a)(1). Jones pled guilty on December 28, 2012.
While in pretrial detention before his plea, Jones attempted to escape from the
Torrance County Detention Center. He and another inmate climbed over a fence into
a “dead man’s zone” wearing extra sets of clothing. They tackled a guard and threw
his radio over a fence, but were apprehended. After his plea, Jones was involved in
an apparent second escape attempt, this time from the Santa Fe Correctional Facility.
His cell bars were found to have been partially cut, and Marshals found paint
matching the color of the bars in his cell. Jones was later found with a piece of
metal. Marshals concluded he had used the metal object to saw into the bars, and
used the paint to conceal his efforts.
3 The district court held a sentencing hearing in May 2014. At the hearing, Dr.
Robert Avery testified that he conducted an exam of Vasquez in April 2013. Dr.
Avery’s exam concluded that, although Vasquez has good vision in both eyes, he
suffers from a pupillary dysfunction in his left eye caused by trauma. As a result of
this dysfunction, Vasquez’s pupil does not constrict properly and allows too much
light to enter the eye, causing discomfort and interfering with contrast enhancement.
Dr. Avery did not expect the condition to resolve.
Vasquez also spoke at the sentencing hearing. He explained that Gallegos and
Jones had beaten him, strangled him, and gouged his eye. Vasquez referred to the
crime as the longest night of his life, and stated “it was a very painful thing.”
Vasquez also testified that, the morning after the kidnapping, he could not recognize
his swollen face in the mirror. He described his appearance as “like Rocky at the end
of the movie.”
The district court imposed a sentence of 420 months’ imprisonment. Jones’
attorney failed to file a timely notice of appeal. However, Jones later obtained
habeas relief based on ineffective assistance of counsel for that failing and the case
was set for resentencing. While Jones’ habeas case was proceeding, Gallegos
prevailed in an appeal to this court challenging a sentencing enhancement for
permanent bodily injury. See United States v. Gallegos, 610 F. App’x 786 (10th Cir.
2015) (unpublished). The probation office issued an addendum to Jones’ Presentence
Investigation Report in response to that decision. On resentencing, the district court
imposed a new sentence of 360 months. Jones timely appealed.
4 II
We review claims that a sentence is procedurally unreasonable for abuse of
discretion. United States v. Halliday, 665 F.3d 1219, 1222 (10th Cir. 2011). In
doing so, “we review de novo the district court’s legal conclusions regarding the
[G]uidelines and review its factual findings for clear error.” United States v. Gantt,
679 F.3d 1240, 1246 (10th Cir. 2012). A district court abuses its discretion when it
commits an error of law. United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th
Cir.
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FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 31, 2018 _________________________________ Elisabeth A. Shumaker Clerk of Court UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-2197 (D.C. No. 1:11-CR-02994-WJ-1) BRANDON LAWRENCE JONES, (D.N.M.)
Defendant - Appellant. _________________________________
ORDER AND JUDGMENT* _________________________________
Before LUCERO, EBEL, and PHILLIPS, Circuit Judges. _________________________________
Brandon Jones appeals his sentence after pleading guilty to kidnapping.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.
I
On the night of November 5, 2011, Javier Vasquez was leaving a University of
Texas at El Paso basketball game when he was accosted by Jones. Displaying what
appeared to be a pistol in his waistband, Jones ordered Vasquez into his vehicle. He
then called to another man standing nearby, Jesus Gallegos, who also entered
Vasquez’s truck. Jones drove the vehicle, with Vasquez in the passenger seat and
Gallegos in the back.
* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Jones demanded that Vasquez provide his personal identification number and
direct them to a bank where Jones could withdraw funds. Gallegos grabbed
Vasquez’s head and face from behind and demanded the same. Vasquez complied,
and Jones obtained funds from Vasquez’s account at the bank. Jones then demanded
more money from Vasquez, who guided Jones to a different bank in El Paso where
Jones withdrew money several times in $300 increments. Jones gave Vasquez the
withdrawal receipts, telling him he would “need this for court.”
Vasquez begged to be released, noting that Jones and Gallegos had his truck
and wallet. But the pair refused, fearing that Vasquez would contact the police.
Nonetheless, it is clear that Jones and Gallegos lacked a coherent plan. Jones
repeatedly mentioned going north on a road trip, and at times treated Vasquez almost
as if he were a companion. He told Vasquez not to worry, and that he would be freed
eventually. Jones also forced Vasquez to drink tequila. But for most of the
misadventure, Jones and Gallegos essentially tortured Vasquez. Both men repeatedly
struck Vasquez during the encounter. At one point, Vasquez told Jones he had
missed a freeway entrance, prompting Jones to punch him in the head. Jones
threatened to shoot Vasquez. Gallegos grabbed Vasquez from behind and drove his
thumb into Vasquez’s left eye. At another point, Gallegos noticed that Vasquez had
loosened his seatbelt—in preparation for an escape attempt—and choked him with it.
Jones drove the truck to Las Cruces, New Mexico, and headed toward
Albuquerque. While in New Mexico, Jones stopped at another bank branch and
withdrew funds from Vasquez’s account. Also while in New Mexico, the vehicle
2 approached a U.S. Border Patrol checkpoint. Jones threatened to kill Vasquez if he
attempted to escape or alert Border Patrol at the checkpoint, saying “you may get me,
but I already killed three people; one more’s not gonna make a difference.” Gallegos
and Jones subsequently bound Vasquez’s hands, legs, and ankles with duct tape,
moved him to the back seat, and placed items over him. Apparently deciding that
arrangement would appear too suspicious, however, the pair cut Vasquez free.
Jones stopped the truck at a rest stop near Clines Corner, New Mexico, where
he and Gallegos fell asleep. After waiting to ensure the pair were actually
unconscious, Vasquez escaped from the truck and contacted law enforcement. He
was transported to a hospital in Albuquerque, where he was treated for pain in his
head, neck, and jaw, and for blurry vision in his left eye. Jones and Gallegos were
charged in federal court with kidnapping in interstate commerce in violation of 18
U.S.C. § 1201(a)(1). Jones pled guilty on December 28, 2012.
While in pretrial detention before his plea, Jones attempted to escape from the
Torrance County Detention Center. He and another inmate climbed over a fence into
a “dead man’s zone” wearing extra sets of clothing. They tackled a guard and threw
his radio over a fence, but were apprehended. After his plea, Jones was involved in
an apparent second escape attempt, this time from the Santa Fe Correctional Facility.
His cell bars were found to have been partially cut, and Marshals found paint
matching the color of the bars in his cell. Jones was later found with a piece of
metal. Marshals concluded he had used the metal object to saw into the bars, and
used the paint to conceal his efforts.
3 The district court held a sentencing hearing in May 2014. At the hearing, Dr.
Robert Avery testified that he conducted an exam of Vasquez in April 2013. Dr.
Avery’s exam concluded that, although Vasquez has good vision in both eyes, he
suffers from a pupillary dysfunction in his left eye caused by trauma. As a result of
this dysfunction, Vasquez’s pupil does not constrict properly and allows too much
light to enter the eye, causing discomfort and interfering with contrast enhancement.
Dr. Avery did not expect the condition to resolve.
Vasquez also spoke at the sentencing hearing. He explained that Gallegos and
Jones had beaten him, strangled him, and gouged his eye. Vasquez referred to the
crime as the longest night of his life, and stated “it was a very painful thing.”
Vasquez also testified that, the morning after the kidnapping, he could not recognize
his swollen face in the mirror. He described his appearance as “like Rocky at the end
of the movie.”
The district court imposed a sentence of 420 months’ imprisonment. Jones’
attorney failed to file a timely notice of appeal. However, Jones later obtained
habeas relief based on ineffective assistance of counsel for that failing and the case
was set for resentencing. While Jones’ habeas case was proceeding, Gallegos
prevailed in an appeal to this court challenging a sentencing enhancement for
permanent bodily injury. See United States v. Gallegos, 610 F. App’x 786 (10th Cir.
2015) (unpublished). The probation office issued an addendum to Jones’ Presentence
Investigation Report in response to that decision. On resentencing, the district court
imposed a new sentence of 360 months. Jones timely appealed.
4 II
We review claims that a sentence is procedurally unreasonable for abuse of
discretion. United States v. Halliday, 665 F.3d 1219, 1222 (10th Cir. 2011). In
doing so, “we review de novo the district court’s legal conclusions regarding the
[G]uidelines and review its factual findings for clear error.” United States v. Gantt,
679 F.3d 1240, 1246 (10th Cir. 2012). A district court abuses its discretion when it
commits an error of law. United States v. Lopez-Avila, 665 F.3d 1216, 1219 (10th
Cir. 2011).
Jones advances three challenges to the procedural reasonableness of his
sentence. First, he argues the district court wrongly imposed a two-level
enhancement under U.S.S.G. § 2A4.1(b)(2)(B). That provision applies “if the victim
sustained serious bodily injury.” Id. The term “serious bodily injury” is defined as
“injury involving extreme physical pain or the protracted impairment of a function of
a bodily member, organ, or mental faculty; or requiring medical intervention such as
surgery, hospitalization, or physical rehabilitation.” U.S.S.G. § 1B1.1 cmt. n.1(L).
The district court found that Vasquez suffers protracted impairment of his left
eye because of his pupillary dysfunction.1 We agree. Dr. Avery examined Vasquez
approximately a year-and-half after Jones’ crime, and found he continued to suffer
pupillary dysfunction. This length of time qualifies as protracted. See generally
United States v. Tsosie, 124 F.3d 218 (10th Cir. 1997) (table) (unpublished) (injury
1 The district court also found that Vasquez suffered extreme physical pain. Because we affirm the district court’s conclusion as to protracted injury, we need not address this finding. 5 qualified as protracted under 18 U.S.C. § 113(f) based on testimony of continued
numbness after similar period of time). Jones contends that pupillary dysfunction is
insufficiently serious. But the structure of the Guidelines undermines this argument.
Jones received a two-level enhancement for serious bodily injury rather than a four-
level enhancement for permanent bodily injury. Compare U.S.S.G. § 1B1.1 cmt.
n.1(J), with U.S.S.G. § 1B1.1 cmt. n.1(L). As we noted in Gallegos, a key
“distinction between the two levels of enhancement is the severity of the impairment;
a permanent bodily injury enhancement requires that the impairment at issue be
‘substantial,’ while the serious bodily injury enhancement has no severity
requirement.” 610 F. App’x at 790. We need not decide whether a de minimis
impairment would qualify. Dr. Avery explained that pupillary dysfunction causes
discomfort and can interfere with vision by precluding proper contrast enhancement.
Such an impairment cannot be dismissed as de minimis.
Jones also challenges the district court’s imposition of a two-level
enhancement for obstruction of justice under U.S.S.G. § 3C1.1. The district court
imposed the enhancement based on Jones’ attempted escape from the Torrance
County Detention Center. An application note to the Guideline includes “escaping or
attempting to escape from custody before trial or sentencing” on “a non-exhaustive
list of examples of the types of conduct to which this adjustment applies.” U.S.S.G.
§ 3C1.1 cmt. n.4. Although Jones acknowledges that the enhancement could apply,
he contends the district court should have declined to impose it based on mitigating
circumstances—specifically, the escape attempt occurred after Jones learned that he
6 faced a higher sentence than his attorney had suggested and he had previously
suffered trauma during incarceration in a Mexican prison. We conclude the district
court acted well within its discretion in finding the enhancement nevertheless
applied.
In Jones’ final procedural argument, he claims the district court erred in
denying him a sentencing reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a). That provision allows for an offense-level reduction “[i]f the defendant
clearly demonstrates acceptance of responsibility for his offense.” Id. Admitting to
the conduct that comprises the offense of conviction, as Jones did in pleading guilty,
can qualify a defendant for the reduction. U.S.S.G. § 3E1.1 cmt. n.1(A). However,
conduct resulting in an enhancement for obstruction of justice “ordinarily indicates
that the defendant has not accepted responsibility for his criminal conduct.” U.S.S.G.
§ 3E1.1 cmt. n.4. The Guidelines acknowledge, however, that there could “be
extraordinary cases in which adjustments under both §§ 3C1.1 and 3.E1.1 may
apply.” Id.
Jones argues that the district court relied on insufficiently reliable evidence as
to his escape attempt from the Santa Fe Correctional Facility. But the district court
held that Jones’ escape attempt from the Torrance County Detention Center justified
denial of the reduction, referencing the later attempt only as an alternative basis.
Jones is correct that the district court could have granted him a reduction based on his
guilty plea, which occurred after the Torrance County escape attempt. See United
States v. Banks, 252 F.3d 801, 806 (6th Cir. 2001); United States v. Knight, 905 F.2d
7 189, 192 (8th Cir. 1990). But he has not demonstrated that the district court was
required to do so. “Whether the defendant has clearly demonstrated acceptance of
responsibility is a factual question we review only for clear error” and “the
determination of the sentencing judge is entitled to great deference on review.”
United States v. Ivy, 83 F.3d 1266, 1292-93 (10th Cir. 1996). Jones points to the
same mitigating circumstances identified above regarding his Torrance County
attempt. But as with his prior argument, the district court acted within its discretion
in concluding Jones’ circumstances were not extraordinary.
III
Jones also challenges the substantive reasonableness of his sentence. We
review such claims for abuse of discretion. United States v. Smart, 518 F.3d 800,
805 (10th Cir. 2008). “[W]e afford substantial deference to the district court, and
determine whether the length of the sentence is reasonable given all the
circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).”
United States v. Balbin-Mesa, 643 F.3d 783, 788 (10th Cir. 2011) (quotation
omitted). A sentence is presumptively reasonable if the district court correctly
calculated the applicable Guidelines range and sentenced the defendant within or
below that range. Id. Jones bears the burden of rebutting that presumption. See
United States v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006).
In attempting to carry this burden, Jones points to a number of potentially
mitigating factors, including his difficult childhood, psychological and emotional
issues caused in part by a traumatic stint in a Mexican prison, and substance abuse
8 problems. He also argues that his conduct was not related to the particular harm
targeted by the federal kidnapping statute, crossing state lines to evade law
enforcement. And he points to the need to avoid unwarranted sentencing disparities.
Although Jones has identified numerous mitigating factors, other aggravating factors
played a role in the district court’s sentencing decision. The district court noted
Jones’ prior convictions (some of which were violent), the need to promote respect
for the law and to provide adequate deterrence, and perhaps most importantly, the
serious nature of Jones’ offense. Given all of the circumstances and the § 3553(a)
factors, we cannot say the district court “exceeded the bounds of permissible choice.”
United States v. McComb, 519 F.3d 1049, 1053 (10th Cir. 2007) (quotation omitted).
IV
AFFIRMED.
Entered for the Court
Carlos F. Lucero Circuit Judge