U.S. v. Jones, s. 97-2341

• Decision Date: 08 September 1998
• Docket Number: Nos. 97-2341,97-2342,s. 97-2341
• Parties: 98 CJ C.A.R. 4783 UNITED STATES of America, Plaintiff-Appellant, v. David Yazzie JONES, Jr., Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 492

158 F.3d 492

98 CJ C.A.R. 4783

UNITED STATES of America, Plaintiff-Appellant, v. David Yazzie JONES, Jr., Defendant-Appellee.

Nos. 97-2341, 97-2342.

United States Court of Appeals Tenth Circuit.

Sept. 8, 1998.

Richard A. Friedman (John J. Kelly, United States Attorney, and Kathleen Bliss, Assistant United States Attorney, Albuquerque, New Mexico, with him on the briefs), Department of Justice, Washington, D.C., for Plaintiff-Appellant.

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New Mexico, for Defendant-Appellee.

Before BRORBY, HOLLOWAY, and EBEL, Circuit Judges.

BRORBY, Circuit Judge.

David Yazzie Jones pled guilty to one count of possession of a firearm by a prohibited person, in violation of 18 U.S.C. § 922(g)(8), and one count of providing false information to obtain a firearm, in violation of 18 U.S.C. § 922(a)(6). After departing downward three levels under the United States Sentencing Guidelines (U.S.S.G.), ¹ the district court sentenced Mr. Jones to six

                months of home confinement and three years of probation.  Pursuant to 18 U.S.C. § 3742(b), the Government now appeals Mr. Jones' sentence. 2  The Government variously challenges the permissibility and the adequacy of the grounds identified by the district court as the basis for the departure.  We have jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm
                

BACKGROUND

Mr. Jones married Janice Begay in 1979, eventually establishing a homestead with her in New Mexico. After their union produced three children, the marriage began to unravel. By 1995, Mr. Jones and his wife were estranged, and he had left their marital home. Ms. Begay obtained a series of restraining orders against Mr. Jones. The first order restraining Mr. Jones was issued by the Family Court of the Navajo Nation in June 1995. For reasons not clear from the record, Ms. Begay then moved her case to the New Mexico state district court. The state district court issued its first restraining order in September 1995.

On September 15, 1995, while under a restraining order issued at Ms. Begay's behest, Mr. Jones allegedly approached his estranged wife's residence, located in Indian country, while carrying a handgun. Mr. Jones was arrested a few hours later in the early morning hours of September 16, 1995, on a rural road near Ms. Begay's residence. A handgun was found in the vehicle in which he was riding. Mr. Jones was convicted in state magistrate court of negligent use of a deadly weapon and fined $100.

By March 1996, the Federal Bureau of Investigation had begun investigating Mr. Jones. On November 7, 1996, a federal grand jury indicted Mr. Jones. The indictment charged Mr. Jones with four counts of interstate violation of a protection order, in violation of 18 U.S.C. §§ 2262(a)(1), (b)(3), and (b)(5). Based on the September 15, 1995 incident, the indictment also charged one count of possession in or affecting commerce of a firearm and ammunition by a prohibited person, in violation of 18 U.S.C. §§ 922(g)(8) and 924(a)(2).

On November 14, 1996, Mr. Jones was arrested for the charges in the federal indictment. After his arraignment, he was released on personal recognizance on November 18, 1996. As a general condition of his release, Mr. Jones was not to commit any criminal offenses. Additional conditions of release prohibited Mr. Jones from possessing firearms, and from traveling, except for limited, specified purposes (e.g., work, church, grocery shopping).

Prior to his indictment on federal charges, Mr. Jones had been making installment payments toward the purchase of a firearm from Kirtland Pawn and Sporting Goods, located in Kirtland, New Mexico. On January 23, 1997, Mr. Jones traveled with a friend to Kirtland to make the final payment on the weapon. In filling out the requisite Bureau of Alcohol, Tobacco and Firearms form, Mr. Jones falsely indicated he was not under indictment for a crime punishable by more than one year of imprisonment, and misstated his date of birth. Store employees stated Mr. Jones claimed to be a police officer and wanted to take possession of the weapon without a so-called "Brady" clearance. Mr. Jones never attempted to claim the weapon after the mandatory five-day waiting period.

During this period, Ms. Begay had informed Federal Bureau of Investigation agents that she had discovered a receipt belonging to Mr. Jones for the purchase of a firearm. On February 11, 1997, Bureau agents filed a criminal complaint against Mr. Jones arising from his attempted purchase of the firearm from the Kirtland store. On March 5, 1997, Mr. Jones was indicted for making false statements in connection with acquisition of a firearm, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2).

On May 14, 1997, pursuant to a plea agreement under Rule 11(e)(2) of the Federal Rules of Criminal Procedure, Mr. Jones pled guilty to the firearm-possession count of the initial indictment and to the false-statement count of the second indictment. Under the terms of the plea agreement, the Government The initial presentence report placed Mr. Jones in criminal history category I, and assigned him an adjusted base offense level of 16. ³ The probation office deducted a total of three levels for Mr. Jones' acceptance of responsibility, resulting in a total offense level of 13. See U.S.S.G. §§ 3E1.1(a) and (b)(2). Based on these computations, the guideline range for Mr. Jones' offense was twelve to eighteen months imprisonment. See U.S.S.G. Ch. 5 Pt. A.

agreed to dismiss the other four counts contained in the first indictment and to stipulate to a three-level decrease under the Sentencing Guidelines for acceptance of responsibility, contingent on an appropriate culpability statement from Mr. Jones. See U.S.S.G. § 3E1.1(a) and (b)(2).

Following preparation of the presentence report, Mr. Jones moved for a three-level downward departure to offense level 10, which would allow the district court to impose a sentence of probation with home detention. Mr. Jones raised multiple grounds for departure, which the probation office summarized as his exemplary employment history; the harm to his children if he was unable to provide child support; and the aberrant nature of his criminal conduct. The probation office opined that none of the factors proffered by Mr. Jones would individually warrant a downward departure, but the combination of factors might suffice. The probation office concluded that "a departure would not be inappropriate."

On August 27, 1997, the district court conducted a sentencing hearing. At the hearing, the district court adopted the factual findings of the presentence report, as amended. The court also referenced receipt of twelve letters and statements praising Mr. Jones' character and past conduct, and heard from Ms. Begay. The district court entertained lengthy arguments from both sides on the appropriateness of a downward departure. In the end, the district court granted Mr. Jones' motion for a three-level downward departure under U.S.S.G. § 5K2.0. The court cited eleven factors which, in combination, warranted the downward departure. ⁴

The three-level downward departure reduced Mr. Jones' offense level to 10, resulting in a guideline imprisonment range of six to twelve months, thus allowing for a sentence of probation with home confinement under U.S.S.G. § 5C1.1(c)(3). Accordingly, the district court sentenced Mr. Jones to three years probation with special conditions, including a six-month period of home confinement under electronic monitoring, and forty hours of community service. These appeals followed.

ANALYSIS

As a general rule, if the case before the district court is a typical one, the court must impose a sentence within the applicable Sentencing Guidelines range. 18 U.S.C. § 3553(a); see also Koon v. United States, 518 U.S. 81, 85, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). However, the Sentencing Commission recognized that unusual or atypical cases would arise, and explicitly reserved some degree of flexibility to the sentencing court:

The Commission intends the sentencing courts to treat each guideline as carving out a "heartland," a set of typical cases embodying the conduct that each guideline describes. When a court finds an atypical case, one to which a particular guideline linguistically applies but where conduct significantly differs from the norm, the court may consider whether a departure is warranted.

U.S.S.G. Ch. 1, Pt. A, intro. comment. 4(b). See also Koon, 518 U.S. at 98, 116 S.Ct. 2035 (recognizing departure decisions as "embod[ying] the traditional exercise of discretion by a sentencing court"). Thus, district courts may depart from the applicable guideline range if "the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." 18 U.S.C. § 3553(b). In determining whether a circumstance was adequately taken into consideration by the Sentencing Commission, our inquiry is limited to the Sentencing Guidelines, policy statements, and official commentary of the Commission. Id.

Since the Supreme Court's watershed decision in Koon, this court has employed a four-prong analysis in reviewing decisions to depart from the applicable guideline sentencing range. See United States v. Collins, 122 F.3d 1297, 1303 (10th Cir.1997). We evaluate "whether the factual circumstances supporting a departure are permissible departure factors." Id. "Impermissible factors include forbidden factors, discouraged factors that are not present to some exceptional degree, and encouraged factors already taken into account by the applicable guideline that are not present to some exceptional degree." ⁵ Id. This inquiry, "whether a factor is a permissible departure factor under any circumstances" is "essentially legal," and our review is...