U.S. v. Jones
| Decision Date | 27 March 2006 |
| Docket Number | No. 05-60152.,05-60152. |
| Citation | 444 F.3d 430 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Robert JONES, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Paul David Roberts, Asst. U.S. Atty. (argued), Oxford, MS, for Plaintiff-Appellee.
Thomas Constantine Levidiotis (argued), Oxford, MS, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of Mississippi.
Before BENAVIDES, STEWART and OWEN, Circuit Judges.
Robert Jones pleaded guilty to possession of child pornography in violation of 18 U.S.C § 2252A(a)(5)(B). At sentencing, which occurred after the United States Supreme Court decided United States v. Booker,1 the district court sentenced Jones to the statutory maximum prison term of 120 months,2 which was beyond the 46-to-57 month range calculated under the Guidelines. Jones challenges his sentence on three grounds, claiming, for the first time on appeal, that (1) in violation of Federal Rule of Criminal Procedure 32(h), he did not receive notice before sentencing that an upward departure was contemplated or notice of the grounds for that departure, (2) the district court based its decision to depart upwardly on impermissible factors, and (3) the sentence is unreasonable. Because we conclude that plain error has not been shown, we affirm Jones's sentence.
Jones pleaded guilty to the possession of child pornography that has been transported in interstate commerce, which constitutes a violation of 18 U.S.C. § 2252A(a)(5)(B). At his plea hearing, Jones specifically admitted to each element that established this crime, and he also admitted to all facts contained in the presentence report ("PSR"). Prior to the sentencing hearing, the Supreme Court decided Booker, which rendered the Sentencing Guidelines effectively advisory.3 The district court understood the Guidelines to be advisory at the time of sentencing and upwardly departed from the range calculated under the Guidelines citing several factors including prior arrests that did not result in convictions and "aggravating circumstances ... not adequately taken into consideration by the sentencing commission." Jones appeals his sentence.
Because the issue of whether the district court considered impermissible factors in deciding to depart upwardly from the Guidelines range informs our consideration of Jones's other contentions, we turn to it first. The PSR prepared by United States Probation reflects that Jones was indicted on February 26, 2004 for allegedly possessing child pornography on January 28, 2004. On February 22, 2004, he was arrested on state charges of two counts of sexual battery based on allegations that he inserted his penis in the mouth of a five-year-old and in the mouth of a six-year-old while babysitting. The PSR also reflected that Jones had been charged in 1993 with the rape of his four-year-old niece but that those charges had been dismissed. The sentencing hearing for Jones's conviction of the federal crime at issue in this case was held in March 2005. The two state sexual battery charges were pending at that time.
United States Probation determined Jones's base offense level to be 15 pursuant to U.S.S.G. § 2G2.4. After certain enhancements4 and a three-point reduction for acceptance of responsibility, Jones's total offense level was calculated to be 23. Because Jones had a criminal history category of I, the Guidelines imprisonment range was 46 to 57 months.5
The district court did not include a written statement in the judgment setting forth the reasons for the upward departure but did orally state its reasons at the sentencing hearing. It is clear the court considered the prior arrests in deciding to impose the maximum statutory sentence.6 The Guidelines expressly provide in a policy statement that "[a] prior arrest record itself shall not be considered for purposes of an upward departure...."7 While the Guidelines contemplate that a district court may base an upward departure on "[p]rior similar adult criminal conduct not resulting in a criminal conviction,"8 they also contemplate that there must be "reliable information" of such conduct.9 Arrests, standing alone, do not constitute reliable information under either the Guidelines or our precedent pre-dating the Guidelines.10 The district court did not find that Jones actually committed the rape of a child in 1993 or that Jones committed the sexual batteries of which he had been accused at the time of sentencing. Had there been such findings, supported by evidence, the district court could have considered those facts in determining the likelihood that Jones would commit crimes in the future. But absent such evidence and findings, it was error to take the mere fact of prior arrests into account. The government's contentions to the contrary are not well-taken.
Had Jones apprised the district court of his objection to consideration of prior arrests, we would have a roadmap from the Supreme Court, at least prior to the Booker decision. In Williams v. United States, the district court had erred in relying on prior arrests among other factors in imposing an upward departure.11 The Supreme Court granted certiorari to decide "whether a reviewing court may affirm a sentence in which a district court's departure from the guideline range is based on both valid and invalid factors."12
The Court explained that in reviewing a departure from a Guidelines range "the reviewing court is obliged to conduct two separate inquiries."13 The first is under 18 U.S.C. § 3742(f)(1).14 If the sentence was "imposed either in violation of law or as a result of an incorrect application of the Guidelines," a remand is required.15 If remand is not required under that section, the reviewing court should determine under § 3742(f)(2) if "the resulting sentence [is] an unreasonably high or low departure from the relevant guideline range."16 Accordingly, we first consider § 3742(f)(1).
The Williams decision held that a departure from a Guidelines range based on a factor that the Sentencing Commission has expressly rejected as an appropriate ground for departure "is an incorrect application of the Guidelines" within the meaning of 18 U.S.C. § 3742(f)(1).17 However, Williams concluded that because the statute only requires remand "if the sentence was `imposed as a result of an incorrect application,'" remand is not automatic.18 The Court reasoned that if the district court did not "intend[] to depart from the Guidelines, a sentence is imposed `as a result of' an incorrect application... when the error results in the district court selecting a sentence from the wrong guideline range."19 But if the district court intended to depart from the guideline range, "a sentence is imposed `as a result of' a misapplication of the Guidelines if the sentence would have been different but for the district court's error."20 The Court then said, "in determining whether a remand is required under § 3742(f)(1), a court of appeals must decide whether the district court would have imposed the same sentence had it not relied upon the invalid factor or factors."21
The Supreme Court further held in Williams that the "harmless error" rule applies,22 despite the dissenting opinion's assertion that "appellate review of departure sentences under § 3742 does not accommodate `harmless-error' review."23 Citing Federal Rule of Criminal Procedure 52(a), Williams concluded:
[T]he party challenging the sentence on appeal, although it bears the initial burden of showing that the district court relied upon an invalid factor at sentencing, does not have the additional burden of proving that the invalid factor was determinative in the sentencing decision. Rather, once the court of appeals has decided that the district court misapplied the Guidelines, a remand is appropriate unless the reviewing court concludes, on the record as a whole, that the error was harmless, i.e., that the error did not affect the district court's selection of the sentence imposed.24
The Williams decision did not directly discuss whether the "would-have-been-a-different-sentence" inquiry is altered when appellate review is for plain error. But based on the Court's reliance on Rule 52(a), its discussion of harmless error, and its pointed rejection of the dissenting opinion's position, it would seem that a defendant challenging a sentence for the first time on appeal should have a different burden, consistent with Rule 52(b)'s "subtle but important" difference, as articulated in the Supreme Court's decision in United States v. Olano.25
The decision in Olano set forth three "limitation[s] on appellate authority under Rule 52(b)," which are that there must be error, the error must be plain, and the plain error must affect substantial rights.26 Even when these elements are present, "the court of appeals has authority to order correction, but is not required to do so," and "the standard that should guide the exercise of remedial discretion under Rule 52(b)" is whether "the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"27 We have little difficulty in concluding that consideration of the mere fact of prior arrests was error and that it was plain. Whether the consideration of prior arrests in conjunction with other, permissible, factors affected Jones's substantial rights and whether, assuming it did, the error "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings" are more complex questions.
Olano explained that when a defendant has failed to call a complaint to the district court's attention and review is for plain error, the burden of establishing prejudice is generally shifted.28 "Normally, although perhaps not in every case, the defendant must make a specific showing of prejudice to satisfy the `affecting substantial rights' prong of ...
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