U.S. v. Jones

• Citation: 635 F.3d 909
• Decision Date: 15 March 2011
• Docket Number: No. 09–1556.,09–1556.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Christopher JONES, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

635 F.3d 909

UNITED STATES of America, Plaintiff–Appellee,

v.Christopher JONES, Defendant–Appellant.

No. 09–1556.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 7, 2010.Decided March 15, 2011.

Timothy John Chapman (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Ellen R. Domph (argued), Attorney, Chicago, IL, for Defendant–Appellant.Before FLAUM, ROVNER, and SYKES, Circuit Judges.ROVNER, Circuit Judge.

Christopher Jones pleaded guilty to multiple narcotics and weapons offenses, and the district court ordered him to serve a total prison term of 181 months. On appeal, Jones contends that he was deprived of the effective assistance of counsel when the attorney who represented him at sentencing failed to object to a two-level enhancement to his offense level based on his possession of a .22–caliber rifle with an obliterated serial number. See U.S.S.G. § 2K2.1(b)(4) (Nov.2005).¹ Jones was not charged with the possession of that rifle, as the government had no proof that the rifle had ever moved in interstate or foreign commerce. Jones reasons that absent evidence bringing his possession of the rifle within the authority of the federal government to prosecute, the district court could not consider the rifle in calculating his sentencing offense level for the crimes with which he was charged. However, because Jones's possession of the rifle was prohibited by Illinois law and constituted relevant conduct under the Sentencing Guidelines, it was entirely appropriate for the court to apply the enhancement. His attorney therefore did not deprive Jones of effective representation by posing no objection to the enhancement.

I.

Jones was approached and ultimately arrested by police in October 2004 after he was observed engaging in what looked like hand-to-hand narcotics sales near an alleyway entrance in Chicago's North Lawndale neighborhood. A search of his person uncovered nine-tenths of a gram of crack and a Desert Eagle semi-automatic pistol. A subsequent search of his residence in a nearby two-flat, conducted with the consent of the building's owner (Jones's great-grandfather) and his grandmother, with whom he lived in the second-floor apartment, unearthed another 11.4 grams of crack cocaine and nine firearms, among other contraband, in his bedroom. The serial numbers on two of those firearms, a Feg .380 semi-automatic pistol and a .22–caliber rifle, had been defaced.

A superseding indictment returned in July 2005 alleged that Jones had committed six offenses. Counts One through Three related to the crack cocaine and the Desert Eagle pistol that Jones had possessed at the alleyway and charged him respectively with possessing crack cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), using and carrying the Desert Eagle pistol in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).² Counts Four through Six were based on the additional cocaine and firearms found in Jones's residence, and respectively charged him with being a felon in possession of eight of the nine firearms found in his bedroom in violation of section 922(g)(1), possessing a firearm (the Feg pistol) with an obliterated serial number in violation of 18 U.S.C. § 922(k), and possessing more than five grams of crack cocaine in violation of 21 U.S.C. § 844. The .22–caliber rife was not cited in support of either the felon-in-possession charge in Count Four or the obliterated serial number charge in Count Five, as the government could not prove that the rifle had ever traveled in interstate or foreign commerce. See § 922(g)(1) (prohibiting person who has been convicted of felony from, inter alia, possessing any firearm “in or affecting commerce”); § 922(k) (prohibiting receipt or possession of firearm with obliterated serial number that “has, at any time, been shipped or transported in interstate or foreign commerce”).

After Jones entered a blind plea of guilty to all six charges, the probation officer conducted an investigation and prepared a presentence report (“PSR” or “report”). In ascertaining the advisory sentencing range specified by the Sentencing Guidelines, the probation officer determined that the highest adjusted offense level applicable to any of the charges was the one which applied to the firearms offenses in Counts Three, Four, and Five—Level 32—and she therefore applied that offense level to all of the charges except the section 924(c) charge set forth in Count Two, which mandated a consecutive prison term of 60 months. See § 924(c)(1)(A)(i); U.S.S.G. §§ 3D1.1(b)(1) & 3D1.2, comment. (n.1). The offense level of 32 included a two-point enhancement for possessing a weapon with an obliterated serial number, which the guideline governing firearms-possession offenses identifies as a specific offense characteristic. § 2K2.1(b)(4). The probation officer based that enhancement on the .22–caliber rifle found in Jones's bedroom. In this respect, the probation officer's methodology diverged from the government's own proposed sentencing calculations, which included the same enhancement but based on the Feg semi-automatic pistol (also found in Jones's bedroom) rather than the .22–caliber rifle. In the probation officer's view, because Jones had been charged in Count Five with possession of the Feg with its defaced serial number, it would be double-counting to apply the defaced serial number enhancement to the group of firearms offenses that included Count Five.³

Both parties submitted written objections to the PSR. The government's objections quarreled with the probation officer's methodology in calculating the adjusted offense level of 32 applicable to all charges but for that set forth in Count Two. But the government agreed that 32 was the right offense level. Jones's counsel objected to the two-level enhancement for obstruction of justice that the probation officer had applied based on testimony that Jones had given in support of an unsuccessful motion to quash his arrest and to suppress the evidence obtained pursuant to the arrest. See U.S.S.G. § 3C1.1. Jones's counsel voiced no objection to the proposed enhancement pursuant to section 2K2.1(b)(4) for possession of the .22–caliber rifle with the obliterated serial number.

A sentencing hearing commenced on February 24 and concluded on March 22, 2006. The district court sustained Jones's objection to the enhancement for obstruction of justice, which brought his offense level to 30; but the court otherwise adopted the probation officer's calculations. A final two-level reduction for acceptance of responsibility pursuant to section 3E1.1(a) further reduced Jones's adjusted offense level to 28. Coupled with a criminal history category of III, that offense level yielded an advisory sentencing range of 97 to 121 months in prison. The district court imposed a sentence at the top of that range, reasoning that although the range itself was consistent with the statutory sentencing factors set forth in 18 U.S.C. § 3553(a), a sentence at the high end of the range was necessary to account for the gravity of Jones's offenses, his “criminal nature,” and his “lack of respect for the law.” R. 64 at 13. With the addition of the mandatory consecutive sentence of sixty months on Count Two, Jones was ordered to serve a total prison term of 181 months.

Jones's counsel did not file a notice of appeal. Within a year of the entry of judgment, however, and with the assistance of new counsel, Jones filed a motion for collateral relief pursuant to 28 U.S.C. § 2255, contending that he had been denied the effective assistance of counsel guaranteed by the Sixth Amendment to the Constitution when the lawyer who represented him through sentencing failed (among other omissions) to file a notice of appeal on his behalf.⁴ After conducting an evidentiary hearing, the district court granted Jones's motion in part, agreeing that he was deprived of effective representation when his attorney neglected to file a notice of appeal despite Jones's request that he do so. R. 51 at 13–14; see United States v. Nagib, 56 F.3d 798, 801 (7th Cir.1995) (counsel's failure to file notice of appeal on client's instruction is per se ineffective, and prejudice need not be shown). To remedy the Sixth Amendment violation, the court entered an amended judgment imposing the same sentence on Jones, thus opening a new ten-day window in which Jones could file a direct appeal from his conviction and sentence. See United States v. Mosley, 967 F.2d 242, 243 (7th Cir.1992) (proper way to remedy counsel's failure to file notice of appeal is to reenter judgment so as to create new opportunity to appeal) (citing, inter alia, Page v. United States, 884 F.2d 300, 302 (7th Cir.1989)); see also United States v. West, 240 F.3d 456, 460–61 n. 3 (5th Cir.2001).

With the benefit of the relief granted to him pursuant to section 2255, Jones has now appealed his sentence. And here again, he invokes the Sixth Amendment. At bottom, his contention is that the district court improperly calculated his offense level, and the resulting sentencing range, when it applied the two-level enhancement called for by section 2K2.1(b)(4) for the possession of a firearm with a defaced serial number. Jones reasons that because there is no evidence that the .22– caliber rifle underlying that enhancement ever moved in interstate or foreign commerce, the district court could not rely on the rifle in imposing the enhancement. Of course, Jones's sentencing counsel never objected to this enhancement below ⁵ despite having advance notice by way of the PSR that the court might impose it, thereby forfeiting, if not waiving, Jones's right to direct appellate review of the enhancement.⁶ Jones's challenge to the enhancement is thus encapsulated within a claim that he was deprived of the...