U.S. v. Jones, Docket No. 05-5879-cr.

• Citation: 531 F.3d 163
• Decision Date: 24 June 2008
• Docket Number: Docket No. 05-5879-cr.
• Parties: UNITED STATES of America, Appellee, v. Keith JONES, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

531 F.3d 163

UNITED STATES of America, Appellee, v. Keith JONES, Defendant-Appellant.

Docket No. 05-5879-cr.

United States Court of Appeals, Second Circuit.

Argued: April 10, 2007.

Decided: June 24, 2008.

Robert G. Smith, Assistant Federal Defender (Jay S. Ovsiovitch, of counsel, on the brief), Rochester, NY, for Defendant-Appellant.

Tiffany Lee, Assistant United States Attorney (James P. Kennedy, Assistant United States Attorney, on the brief), for Terrance P. Flynn, United States Attorney for the Western District of New York, Rochester, NY, for Appellee.

Before: LEVAL, CABRANES, and RAGGI, Circuit Judges.

REENA RAGGI, Circuit Judge:

Defendant Keith Jones appeals from a judgment of conviction entered on October 27, 2005, in the United States District Court for the Western District of New York (David G. Larimer, Judge), after a jury trial at which Jones was found guilty of unlawfully possessing more than five grams of a substance containing cocaine base (commonly known as "crack" cocaine) in violation of 21 U.S.C. § 844(a). Presently serving the 121-month prison term imposed in this case, Jones challenges his conviction on two grounds. First, he contends that the trial evidence was insufficient as a matter of law to establish his possession of crack cocaine. Second, he asserts that his sentence is unreasonable because the district court (a) miscalculated his Sentencing Guidelines range by including in his relevant drug quantity an amount of crack cocaine derived from the currency seized at the time of Jones's arrest, which was found to represent the proceeds of a crack sale; and (b) gave controlling effect to the Guidelines 100:1 ratio for assessing the relative seriousness of crimes involving powder cocaine as compared to crack cocaine, resulting in a prison term in his case that is greater than necessary to achieve the sentencing objectives of 18 U.S.C. § 3553(a). For the reasons stated in this opinion, we reject Jones's challenge to the sufficiency of the evidence and affirm the district court judgment insofar as it convicts him for cocaine possession. We also reject Jones's challenge to the district court's finding of drug quantity. Nevertheless, because the sentencing record is ambiguous as to whether the district court's understanding of its discretion to impose a non-Guidelines sentence was as now clarified in Kimbrough v. United States, ___ U.S. ___, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) and Gall v. United States, ___ U.S. ___, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007), we vacate the sentence component of the judgment and remand the case to the district court for the limited purpose of resentencing consistent with Kimbrough and Gall.

I. Factual Background

Because Jones raises a sufficiency challenge to his conviction, we briefly summarize the record evidence in the light most favorable to the government. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); accord United States v. Klein, 476 F.3d 111, 112 (2d Cir.2007).

A. The Search Leading to Jones's Arrest

On March 13, 2004, Rochester police executed a search warrant at 991 North Street, Apartment 2, authorizing the seizure of drugs and drug paraphernalia.¹ Upon entering the subject apartment, the police encountered Keith Jones standing in the hallway. In plain view in the living room they saw various of Jones's personal effects including a copy of his birth certificate and two photographs, one of Jones with friends, and one of Jones's daughter. No other persons were present in the apartment, nor did it appear that anyone resided there. Only the living room had any furniture; the two bedrooms were empty, and the kitchen contained no food.

While the officers found no signs of residency, they did find significant evidence indicating that the subject apartment was a "gatehouse," i.e., a location "used solely for the purpose of distribution of a controlled substance," in this case, crack cocaine. Trial Tr. at 16. Throughout the kitchen, which smelled of burnt acetone, officers found white residue caked onto counter tops, cooking pots, and utensils. They collected 22 grams of this residue, which laboratory analysis confirmed to be crack cocaine. In the kitchen, officers also found four discarded bundles of cellophane wrapping and duct tape, materials often used to package kilogram quantities of powder cocaine, which can be "cooked" into crack. They further seized two boxes of baking soda, which is frequently cooked with powder cocaine to create crack. From a cabinet in the hallway where Jones had been standing, the officers seized eight rounds of ammunition, as well as a digital scale, a razor blade, and plastic sandwich bags; the last three items are all commonly used in the packaging and distribution of drugs. Finally, the officers recovered $883 in cash, of which $783 was found beneath a pillow on a living room couch and $100 was found in plain view on the bathroom floor. When confronted with this evidence of apparently substantial narcotics activity, Jones stated: "I don't know nothing about that, I'm just selling a little — a little bit. I don't know nothing about no kilo wrappers." Id. at 85.

B. Trial

As a result of the seizures made in the subject apartment, Jones was charged in the Western District of New York with unlawful possession of ammunition, see 18 U.S.C. §§ 922(g)(1), 924(a)(2); possession of more than five grams of crack with intent to distribute, see 21 U.S.C. § 841(a)(1) & (b)(1)(B); and unlawful simple possession of the same quantity of crack, see id. § 844(a). After a three day trial, the jury found Jones guilty of simple crack possession and acquitted him on the other two charges.

C. Sentencing

Because the jury specifically found Jones to have possessed more than five grams of crack, he was subject to an enhanced statutory sentence of "not less than 5 years and not more than 20 years." Id.; see also, e.g., United States v. Gonzalez, 420 F.3d 111, 123-25 (2d Cir.2005) (noting our earlier holding that drug quantity is not a "mere sentencing factor[]" but rather an "element[] of aggravated offenses," which must be decided by a jury). Insofar as the Sentencing Guidelines were relevant to the district court's determination of where within this statutory range to sentence Jones, see 18 U.S.C. § 3553(a)(4) & (5), the Probation Department, in its PreSentence Report, recommended that the district court find Jones to have possessed approximately 55 grams of crack, a total derived from (1) the 22 grams of crack residue recovered from the kitchen of the subject apartment; (2) the 7 grams of crack purchased by a police informant on February 17 and 28, 2004; and (3) the 25.75 grams of crack that Jones likely sold to realize the $883 seized from the subject apartment.²

The district court declined to find Jones to have possessed the 7 grams of crack purchased by the confidential informant, but it otherwise followed the Probation Department's recommendations for calculating relevant drug quantity. Based on Jones's possession of approximately 47 grams of crack, the district court identified his Guidelines offense level as 30, which, with a criminal history category of III, yielded a sentencing range of 121 to 151 months' incarceration.³

At his sentencing hearing on October 24, 2005, Jones protested the drug quantity finding. In addition, he requested a non-Guidelines sentence on the ground that the Guidelines 100:1 ratio for offenses involving powder as compared to crack cocaine overstated the seriousness of his crime and resulted in a sentencing range greater than necessary to effectuate the goals stated in 18 U.S.C. § 3553(a). In rejecting this argument, the district court offered the following explanation for its decision to sentence Jones within the Sentencing Guidelines range:

Congress has made a determination, and the Guideline Commission has also made a determination — which I guess we can debate — that crack cocaine should be dealt with harshly.

But that's what it is, and I think the court in general is wise to follow that directive and not substitute its own view. Crack cocaine, of those that receive it and get addicted to it, destroy their own lives and they do certainly affect others that commit other crimes.

...

There has been a history of drug use and abuse [by the defendant]. There was a prior conviction involving drugs — admittedly some time ago, back in 1972, that was a misdemeanor.

But I guess most disturbing also, there was the robbery conviction that Mr. Jones was on parole for when this even happened. That's especially of concern. So this looked like, you know, a search of a premises where drug dealing occurred. In fact, there's evidence of that, that two or three weeks before this search and arrest of Mr. Jones there were two buys out of that house for not an insubstantial quantity of drugs. And I just think all of this suggests that a guideline sentence is appropriate in this case, and I will impose such a sentence.

Sentencing Tr. at 20-21. Nevertheless, "recogniz[ing] the severity of the drug calculations for crack cocaine as opposed to powdered cocaine," id. at 22, the district court imposed a sentence at the low end of Jones's Guidelines range: 121 months' incarceration, three years' supervised release, a $750 fine, and a $100 special assessment.

Jones filed a timely notice of appeal challenging both his underlying conviction and the reasonableness of his sentence.

II. Discussion

A. Sufficiency of the Evidence to Prove Possession

Jones asserts that, "[c]ontrary to the jury's finding, the government failed to establish beyond a reasonable doubt that [he] knowingly and intentionally possessed in excess of five grams [of] a mixture or a substance containing cocaine base." Appellant's Br. at 28. Specifically, Jones contends that the government's evidence, at most, showed that he was present inside an apartment where more than five grams of cocaine base was found;...