United States v. Jones

Opinion

Appellate Case: 23-6051 Document: 010111021091 Date Filed: 03/25/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT March 25, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 23-6051 (D.C. No. 5:22-CR-00345-HE-1) CORY O’NEAL JONES, a/k/a Cory (W.D. Okla.) O’Neil Jones, a/k/a Cory O’Nell Jones, a/k/a Coryo Jones, a/k/a Cory O. Cooper, a/k/a Corey Cooper,

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before TYMKOVICH, PHILLIPS, and ROSSMAN, Circuit Judges. _________________________________

Cory Jones was convicted after pleading guilty to possession of a firearm by a

felon in violation of 18 U.S.C. § 922(g)(1). He now appeals his sentence. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

* 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 This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-6051 Document: 010111021091 Date Filed: 03/25/2024 Page: 2

I

Mr. Jones’s plea agreement reserved his “right to appeal the substantive

reasonableness of [his] sentence” if the sentence exceeded the advisory range under

the United States Sentencing Guidelines. R. vol. 1 at 73.

Before sentencing, Probation prepared a presentence investigation report and

calculated an advisory Guidelines range of 57 to 71 months’ imprisonment. This

recommendation included an adjustment for Mr. Jones’s acceptance of responsibility.

The government argued for an upward variance to 120 months’

imprisonment—the statutory maximum, see § 924(a)(2). Mr. Jones argued for a

downward variance to 30 months’ imprisonment. The district court sentenced

Mr. Jones to the statutory maximum.

The court discussed as factors contributing to its sentencing decision, among

others, that

 Mr. Jones possessed AR-15s with high-capacity clips, which the court

concluded “increase[d] the seriousness of the offense.” R. vol. 3 at

25:17.

 Although the district court stated it was “not going to draw any hard and

fast conclusions here about whether he’s ultimately guilty of domestic

abuse as charged” in a separate proceeding, it was “persuaded by a

preponderance of the evidence that it did involve a situation where

[Mr. Jones] was making threats to and choking and bruising and so on

the victim at the time of that incident. So . . . the guns were possessed

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under circumstances which are more serious than might otherwise be the

case.” Id. at 25:25–26:9.

 Mr. Jones’s criminal history included twenty-eight previous criminal

convictions, two of which were for unlawful possession of a firearm by

a felon. See id. at 26–27.

 The offense conduct and Mr. Jones’s criminal history indicated

“a significant history of violence and physical abuse that he threatens or

accomplishes with women.” Id. at 28:8–9.

 In connection with his arrest for the offense of conviction, Mr. Jones

“prepar[ed] . . . false affidavits to try to manipulate the process as it

related to his detention” and “ma[de] false charges against the jailer at

the Cleveland County facility in an effort to manipulate the system” in

an attempt to minimize his own criminal exposure. Id. at 30:4–8.

This timely appeal followed.

II

“We review the substantive reasonableness of a sentence for abuse of

discretion.” United States v. Kaspereit, 994 F.3d 1202, 1207 (10th Cir. 2021).

Under this standard of review, “we will give substantial deference to the district

court’s determination and overturn a sentence as substantively unreasonable only if it

is arbitrary, capricious, whimsical, or manifestly unjust.” Id. But, “[a] district court

abuses its discretion when it . . . commits an error of law, such as applying an

incorrect legal standard or misapplying the correct legal standard.”

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United States v. Akers, 76 F.4th 982, 991 (10th Cir. 2023) (internal quotation marks

omitted). Where, as here, “the district court decides that an outside-Guidelines

sentence is warranted, the court must consider the extent of the deviation and ensure

that the justification is sufficiently compelling to support the degree of the variance.”

United States v. Peña, 963 F.3d 1016, 1028–29 (10th Cir. 2020) (internal brackets

and quotation marks omitted).1

Applying this standard of review, Mr. Jones’s arguments on appeal are

unpersuasive. He argues the district court unduly emphasized the number of events

in his criminal history—which already factored into his applicable Guideline range—

and mistakenly relied on the (unproven) charges of domestic abuse from the night of

the incident. But although the court did consider the number of prior criminal

convictions, it also looked at the nature of those convictions—including two

involving conduct similar to the offense conduct. And the court clarified that it was

aware the allegations of domestic violence were just that—allegations. It nonetheless

found based on the record before it that the allegations were persuasive by a

preponderance of the evidence. Further, “in arguing that the district court did not

appropriately weigh” his prior charged and uncharged domestic abuse conduct,

Mr. Jones “simply asks us to re-weigh factors already presented to the district

court—something we cannot and will not do.” United States v. Budder,

1 To this end, we reject the government’s reference to a “presumption of reasonableness of [an] above-[G]uideline sentence.” Resp. Br. at 16. The government cites no authority creating such a presumption, and we do not apply one here.

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76 F.4th 1007, 1017 (10th Cir. 2023) (internal quotation marks and citation omitted),

cert. denied, ___ U.S. ___, 144 S. Ct. 620 (U.S. Jan. 8, 2024) (No. 23-6205).

The court also considered other factors counseling in favor of its upward

variance to the statutory maximum sentence that Mr. Jones does not address

on appeal, including the specific firearm he possessed (an AR-15) and his

obstructive-of-justice conduct in connection with the instant offense. Considering

the record as a whole under the applicable standard of review, we cannot say the

district court abused its discretion.

Entered for the Court

Veronica S. Rossman Circuit Judge