United States v. Jones

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2025 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 24-462

Plaintiff - Appellee, D.C. No. 1:21-cr-00106-DKW-1

v. MEMORANDUM* JAMIL JONES,

Defendant - Appellant.

Appeal from the United States District Court for the District of Hawaii

Derrick Kahala Watson, District Judge, Presiding

Submitted June 4, 2025** Honolulu, Hawaii

Before: W. FLETCHER, CHRISTEN, and DESAI, Circuit Judges.

After a jury trial, Defendant-Appellant Jamil Jones was convicted of

conspiracy and distribution of methamphetamine and heroin. We previously

vacated his 240-month sentence and remanded to the district court based on an

incorrect application of a firearm enhancement. United States v. Jones, No. 22-

10287, 2023 WL 7271090, at *3 (9th Cir. Nov. 3, 2023). On remand, the district

court imposed the same below-Guideline sentence of 240 months. Jones again * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). appeals from his sentence, arguing that it was substantively unreasonable because

the district court violated his Fifth Amendment right against self-incrimination by

considering his failure to express remorse or responsibility when sentencing him.

We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

A defendant who has been found guilty maintains his or her Fifth

Amendment privilege during the sentencing phase of a criminal case. See Estelle

v. Smith, 451 U.S. 454, 462–63 (1981). Accordingly, “[t]he normal rule in a

criminal case [] that no negative inference from the defendant’s failure to testify is

permitted” applies during sentencing. Mitchell v. United States, 526 U.S. 314,

327–28 (1999). Jones argues that the district court violated this rule at his

sentencing hearing by noting his failure to express remorse or contrition regarding

his conduct. However, the rule against adverse inferences does not apply here

because Jones did not exercise his right to remain silent at the hearing. Instead, he

voluntarily chose to speak.

Jones alternatively argues that § 3E1.1(a) of the Sentencing Guidelines,

which provides for a two-level offense reduction “[i]f the defendant clearly

demonstrates acceptance of responsibility for his offense,” is unconstitutional. We

have previously held that this provision is consistent with the Fifth Amendment

privilege against self-incrimination because it “is merely a benefit which may be

accorded to a defendant if he is able to make the necessary showing.” United

2 24-462 States v. Gonzalez, 897 F.2d 1018, 1021 (9th Cir. 1990); see also United States v.

Skillman, 922 F.2d 1370, 1379 (9th Cir. 1990) (“It would be a strange result if the

mere assertion of a Fifth Amendment right to remain silent would be a guarantee

that such silence would result in receiving a more lenient sentence.”). Because

“the district court determine[d] that the defendant [] failed to exhibit the requisite

contrition,” the court permissibly denied the reduction provided in § 3E1.1(a).

Gonzalez, 897 F.2d at 1021.

AFFIRMED.

3 24-462