United States v. Jones

• Court: Court of Appeals for the Second Circuit
• Decided: January 15, 2025
• Docket: 23-7105
• Status: Unpublished

Opinion

23-7105 United States v. Jones UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 15th day of January, two thousand twenty-five.

PRESENT: RICHARD J. SULLIVAN, JOSEPH F. BIANCO, BETH ROBINSON, Circuit Judges. _____________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 23-7105

KEVIN JONES, II, a.k.a. Ox, a.k.a. Scott,

Defendant-Appellant. * _____________________________________

* The Clerk of Court is respectfully directed to amend the official case caption as set forth above. For Defendant-Appellant: Daniel M. Perez, Law Offices of Daniel M. Perez, Newton, NJ.

For Appellee: Karen L. Peck, Sandra S. Glover, Assistant United States Attorneys, for Vanessa Roberts Avery, United States Attorney for the District of Connecticut, New Haven, CT.

Appeal from a judgment of the United States District Court for the District

of Connecticut (Alvin W. Thompson, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the September 6, 2023 judgment of the district

court is AFFIRMED.

Kevin Jones, II challenges the substantive reasonableness of his 180-month

term of imprisonment following his conviction after a guilty plea to one count of

possessing with intent to distribute morphine in violation of 21 U.S.C. §§ 841(a)(1)

and 841(b)(1)(C); one count of possessing with intent to distribute heroin, cocaine,

and fentanyl in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); and one count

of conspiring to distribute heroin, cocaine, fentanyl, and other controlled

substances in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B). We assume

the parties’ familiarity with the underlying facts, procedural history, and issues on

appeal.

2 We review the substantive reasonableness of a sentence under the

deferential “abuse-of-discretion standard, taking into account the totality of the

circumstances.” United States v. Rigas, 583 F.3d 108, 121 (2d Cir. 2009) (internal

quotation marks omitted); see also United States v. Broxmeyer, 699 F.3d 265, 289 (2d

Cir. 2012). We therefore will only set aside a district court’s sentence as

substantively unreasonable “in exceptional cases where the [district] court’s

decision cannot be located within the range of permissible decisions,” such as

when the sentence would “damage the administration of justice” because it is

“shockingly high, shockingly low, or otherwise unsupportable as a matter of law.”

United States v. Thavaraja, 740 F.3d 253, 259 (2d Cir. 2014) (internal quotation marks

omitted).

As the district court clearly noted during the sentencing proceeding, Jones’s

180-month sentence was well below the advisory U.S. Sentencing Guidelines

range of 262 to 327 months, which Jones does not challenge on appeal. “In the

overwhelming majority of cases, a Guidelines sentence will fall comfortably within

the broad range of sentences that would be reasonable,” which makes it even more

“difficult to find that a below-Guidelines sentence is unreasonable.” United States

v. Gates, 84 F.4th 496, 505 (2d Cir. 2023) (emphasis added) (internal quotation

3 marks omitted). Indeed, in fashioning a sentence that was nearly seven years

lower than the bottom end of the Guidelines range, the district court also provided

sound reasons for that sentence. See App’x at 205–07 (discussing the extent,

nature, and seriousness of Jones’s conduct; his criminal history; his post-arrest

rehabilitative efforts, contrition, and family support; and various other mitigating

and aggravating factors).

On appeal, Jones principally argues that the district court improperly

weighed the seriousness of his criminal conduct against various mitigating factors

– including his “minor” past criminal offenses, “which were committed when he

was fairly young”; his admission of guilt and “sincere contrition”; “his

programming accomplishments while incarcerated”; and “his strong family and

community support.” Jones Br. at 26. But the particular weight given to

mitigating factors “is a matter firmly committed to the discretion of the sentencing

judge.” Broxmeyer, 699 F.3d at 289 (internal quotation marks omitted). The

record clearly shows that the district court considered these mitigating factors and

even credited some of them when it imposed Jones’s substantially below-

Guidelines sentence. See, e.g., App’x at 207 (acknowledging Jones’s letters and

remarks expressing his remorse); id. (considering the certifications for programs

4 that Jones completed while incarcerated); id. (noting that Jones was unlikely to re-

offend). In addition to those mitigating factors, the court also identified

aggravating factors, including the seriousness of Jones’s offense as reflected by the

harm that Jones’s drug dealing inflicted on the community. See id. at 206. We

see no reason to second guess the district court’s weighing of the various

sentencing factors here. See United States v. Pope, 554 F.3d 240, 247 (2d Cir. 2009).

Jones also points to the government’s prior plea offers as “a more just

reflection of the true gravity of the seriousness of [his] crimes, his history and

characteristics, and other sentencing considerations.” Jones Br. at 30. But those

plea offers were rejected by Jones, and in any event, as the district court observed

at sentencing, the court was not bound by the rejected plea offers. Rather, the

district court was obliged to conduct its own assessment of the sentencing factors

based on the facts set forth in the presentence investigation report and the parties’

joint stipulation. Jones provides no case law – nor are we aware of any – that

suggests the district court abused its discretion by affording too little weight to the

previously rejected plea offers. We therefore cannot say that this is one of those

“exceptional cases where the [district] court’s decision cannot be located within

5 the range of permissible decisions.” Thavaraja, 740 F.3d at 259 (internal quotation

marks omitted).

We have considered Jones’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court