U.S. v. Jones

Decision Date18 June 2003
Docket NumberNo. 02-1459.,02-1459.
Citation332 F.3d 1294
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wilson Ben JONES, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Lynn Hartfield, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, and Charles Szekely, Assistant Federal Public Defender, on the briefs), Office of the Federal Public Defender, District of Colorado and Wyoming, Denver, CO, for Appellant.

John M. Hutchins, Assistant United States Attorney (John W. Suthers, United States Attorney, with him on the brief), Office of the United States Attorney, Denver, CO, for Appellee.

Before TACHA, Chief Circuit Judge, BRORBY, and O'BRIEN, Circuit Judges.

TACHA, Chief Circuit Judge.

Defendant-appellant, Wilson Ben Jones, pled guilty to three counts of involuntary manslaughter, in violation of 18 U.S.C. §§ 1112(a) and 1153, and the district court sentenced him to 71 months imprisonment. Jones filed a timely notice of appeal on October 11, 2002. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and AFFIRM.

I. Background

Jones' three convictions stem from an alcohol-related accident on the Ute Mountain Indian Reservation on December 8, 2001, in which Rufus Cayaditto, his common-law wife, Latanyia Begay, and their infant child, Jasmyne Cayaditto, lost their lives. While driving a 1988 Ford Bronco II on Colorado Highway 160, Jones crossed the center line and collided head on with the victims' Dodge sedan. At the time of the accident, Jones' blood-alcohol level was .266, over twice the legal limit. Jones pled guilty to three counts of involuntary manslaughter under 18 U.S.C. § 1112.

At sentencing, the district court determined Jones' adjusted offense level as follows. First, the district court concluded that Jones' conduct was "reckless" under § 2A1.4 and set his base offense level at 14. Second, the court added three offense levels under § 3D1.2, to account for the multiple counts of conviction, bringing the adjusted offense level to 17. Finally, the district court decreased Jones' offense level by three levels, pursuant to the acceptance-of-responsibility provision, § 3E1.1. This resulted in an adjusted base offense level of 14.

The Presentencing Report ("PSR") recommended a nine-level upward departure in offense level and the imposition of the statutory maximum of 72 months imprisonment.1 In support of the PSR, the government filed a Motion for Upward Departure in which it also recommended a nine-level upward departure.2

The district court agreed that an upward departure for offense level was appropriate, but it did not adopt the recommended departure or the methodology set forth in either the PSR or the government's motion. Instead, the district court departed upward seven levels, bringing the offense level to 21. The district court arrived at this conclusion, based on the following allocation:

                Factor3 Increase to offense level
                Significant danger to public safety created
                by Jones' conduct                                                1
                Multiple deaths within a single family unit                      1
                Extreme recklessness of Jones' conduct                           5
                _____________________________________________________________________________
                Total                                                            7
                

The district court then increased Jones' criminal-history category from II to IV, based on his five prior drunk-driving convictions.4

The district court imposed a sentence of 71 months for each count, to be served concurrently, which was within the guideline range for offense level 21 and criminal-history category IV. This appeal followed.

II. Discussion

In this case, the sole question we must consider is whether the district court erred in concluding that Jones' conduct fell outside the "heartland" of involuntary manslaughter cases sufficient to support a seven-level upward departure in offense level under the Sentencing Guidelines. For the reasons set forth below, we affirm the district court's sentencing determination.

A. Standard of Review and Overview of Applicable Law

In criminal cases other than child crimes and sex offenses, a sentencing court 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." 18 U.S.C. § 3553(b)(1) (emphasis added). In reviewing a district court's sentencing determination, we accept the district court's findings of fact unless clearly erroneous. 18 U.S.C. § 3742(e). Further, we generally "give due deference to the district court's application of the guidelines to the facts." Id. Where the district court departs from the sentencing guidelines, however, we review de novo the district court's determinations under 18 U.S.C. § 3742(e)(3)(A) and (B). Id.

Application of the de novo standard of review in sentencing-departure cases represents a shift from our earlier case law. Prior to the enactment of the Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 ("PROTECT Act"), Pub.L. No. 108-21, 117 Stat. 650, we reviewed sentencing departures under a "unitary abuse of discretion standard," applying the four-part test set forth in United States v. Collins, 122 F.3d 1297, 1302-03 (10th Cir.1997). The amendments contained in the PROTECT Act5 modify the unitary abuse of discretion standard; the applicable analytical framework, however, remains generally consistent with the four-part test set forth in Collins.

In light of the PROTECT Act's amendments, our review of the district court's sentencing departure shall proceed as follows. First, we must ascertain whether the district court set forth, in a written order of judgment, its specific reasons for departure. 18 U.S.C. § 3742(e)(3)(A); 18 U.S.C. § 3553(c)(2). Second, we must consider whether the factors the district court relied upon "advance the objectives set forth in section 3553(a)(2),"6 18 U.S.C. § 3742(e)(3)(B)(i), and ensure that the district court's reliance on those factors did not violate any specific prohibition in the Guidelines, Koon v. United States, 518 U.S. 81, 106, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Our review under this second prong of the analysis is de novo. 18 U.S.C. § 3742(e)7; Collins, 122 F.3d at 1302-03. Third, we must consider whether the factors the district court relied upon were "authorized under section 3553(b)"8 and "justified by the facts of the case." 18 U.S.C. § 3742(e)(3)(B)(ii)-(iii). To determine whether the factors are "authorized," we look to 18 U.S.C. § 3553(b)(1), which provides that a district court may depart if "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." This third step in the analysis is commonly called the "heartland" determination. See Collins, 122 F.3d at 1303 (reviewing court must determine "whether the departure factors relied upon by the district court remove the defendant from the applicable Guideline heartland [sufficient to] warrant[] a departure"). We review de novo this "application of the guidelines to the facts" under 18 U.S.C. § 3742(e)(3)(B).9 See 18 U.S.C. § 3742(e). Finally, we must ask whether the district court's sentence "departs to an unreasonable degree from the applicable guidelines range." 18 U.S.C. § 3742(e)(3)(C); accord Collins, 122 F.3d at 1303 (reviewing court must determine "whether the degree of departure is reasonable"). In reviewing the degree of departure, we give due deference to the district court, 18 U.S.C. § 3742(e), and will not reverse absent an abuse of discretion. United States v. Goldberg, 295 F.3d 1133, 1138, 1141 (10th Cir.2002).

We proceed to consider the district court's sentence in this case, in light of the preceding framework.

B. Analysis
1. Whether the district court stated its reasons for departure "with specificity."

Under 18 U.S.C. § 3553(c)(2), a district court must set forth, in a written order of judgment, its reasons for departure "with specificity." 18 U.S.C. § 3553(c)(2). In this case, in its October 8, 2002, judgment, the district court concluded that Jones' conduct fell outside the "heartland" of involuntary manslaughter cases sufficient to warrant an upward departure. The district court based its conclusion on the following three factors: (1) the significant danger to public safety created by Jones' conduct, pursuant to U.S.S.G. § 5K2.14; (2) the multiple deaths, all within a single family, that resulted from Jones' criminal conduct, pursuant to the background commentary to U.S.S.G. § 3D1.4; and (3) the "extreme" recklessness of Jones' conduct. Thus, the district court satisfied section 3553(c)(2)'s requirement of a written order and judgment setting forth the specific reasons for departure.

2. Whether the district court relied on impermissible factors in concluding that Jones' conduct fell outside the heartland of involuntary manslaughter cases.

In determining whether to depart from the Sentencing Guidelines, a district court must determine whether the case falls within the "heartland" of cases embodying the conduct contemplated by each guideline, or whether some aggravating or mitigating circumstance renders the case atypical or "unusual." United States v. Whiteskunk, 162 F.3d 1244, 1248 (10th Cir. 1998) (citing Koon v. United States, 518 U.S. 81, 93, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996)). As the Supreme Court noted in Koon:

The Guidelines ... "place essentially no limit on the number of potential factors that may warrant a departure." The Commission set forth factors courts may not consider under any circumstances but made clear that with those exceptions, it "does not intend to limit the kinds of factors, whether or not mentioned...

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