U.S. v. Jones

• Decision Date: 02 August 2006
• Docket Number: Docket No. 05-2289-CR.
• Citation: 460 F.3d 191
• Parties: UNITED STATES of America, Appellant, v. Eric JONES, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

Page 191

460 F.3d 191

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

Docket No. 05-2289-CR.

United States Court of Appeals, Second Circuit.

Argued: January 19, 2006.

Decided: August 2, 2006.

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Steve Baczynski, Asst. U.S. Atty., Rochester, N.Y. (Michael A. Battle, U.S. Atty., Rochester, N.Y., on the brief), for Appellant.

Roxanne Mendez Johnson, Asst. Federal Defender, Rochester, N.Y. (Jay S. Ovsiovitch, of counsel, on the brief), for Appellee.

Before WALKER, Chief Judge, NEWMAN and KATZMANN, Circuit Judges.

NEWMAN, Circuit Judge.

This appeal of a sentence by the Government presents three issues: (1) whether the District Judge provided an adequate explanation for imposing a non-Guidelines sentence below the applicable Guidelines range to permit appellate review for reasonableness, (2) if so, whether the sentence is reasonable, and (3) if so, whether the judgment must be corrected to include the District Judge's reasons for the sentence. The appeal is from the April 5, 2005, judgment of the District Court for the Western District of New York (David G. Larimer, District Judge), sentencing Defendant-Appellee Eric Jones primarily to 15 months' imprisonment. We conclude that the District Judge's oral statement of reasons for the sentence set forth on the record was adequate, that the sentence is reasonable, but that the failure to include the reasons for the sentence in the judgment violates 18 U.S.C. § 3553(c)(2) and requires correction of the judgment. We therefore affirm the sentence, but remand for correction of the judgment.

Background

The pending case arose when Rochester, New York, police arrested Jones in September 2004 in the barbershop where he worked. They found five bags of marijuana and three firearms. Jones admitted that he was the owner of the drugs and the guns, at least one of which he said was for his protection. The police arrested Jones for violation of state law. Nine months later the matter was taken over by federal authorities, and a federal grand jury indicted Jones on one count of being a felon in possession of firearms, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of "a detectable amount" of marijuana, in violation of 21 U.S.C. § 844(a). Jones had previously been convicted on a guilty plea of attempted criminal possession of a controlled substance in the third degree and sentenced to six weeks' imprisonment and five years' probation. He was discharged from probation in April 2002.

In November 2004, Jones pleaded guilty to the firearms count pursuant to a plea agreement specifying that the agreed Guidelines range under the then-mandatory Guidelines was 30-37 months. After the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), on January 12, 2005, the District Court indicated that it would not accept the plea in Jones's case with its stipulated sentencing range of 30-37 months. At a hearing in March 2005, Judge Larimer indicated that he considered that range too harsh. In anticipation of a more lenient sentence, Jones withdrew his guilty plea and pleaded guilty to both counts.

Sentencing occurred at the end of March. Judge Larimer noted that the applicable sentencing range remained 30-37 months. He then mentioned two matters that he found "troubling." First, Jones had been unemployed for the past month, contrary to the representation of his defense counsel that he was currently employed. Second, Jones tested positive for marijuana on the day of sentencing. Upon inquiry by the Court, Jones explained that his work for his current employer was sporadic and that he did some part-time work that was not "on their books." Jones acknowledged marijuana use, which his lawyer attributed to stress in his life stemming from the recent death of his father.

After hearing from the Government, defense counsel, and Jones, Judge Larimer explained the thinking that prompted him to give a non-Guidelines sentence. Initially, he acknowledged the seriousness of the offenses, especially in view of the prior state drug conviction. He then referred to factors that he considered to count in Jones's favor. These included a "consistent work ethic," Jones's support of his wife and son, his assistance and support for other members of his family, his recent loss of his father, his attempt at college, his "very good and positive" adjustment to state probation, and the fact that Jones would be on supervised release for three years and would have to be "prepared for a much stiffer sentence" if he violated supervised release. The Judge candidly acknowledged that part of his thinking was not explainable: "I just had a gut feeling about you"; "I still have the sense that Eric Jones is capable of doing much better." Finally, Judge Larimer noted that he had considered all of the sentencing factors under 18 U.S.C. § 3553(a) and the applicable guideline and was "convinced that a non-guidelines sentence here is appropriate." Judge Larimer imposed a sentence of 15 months' imprisonment, followed by three years of supervised release.

Discussion

I. Sufficiency of the Reasons for a Non-Guidelines Sentence

After Booker, a sentencing judge remains obligated "to state in open court the reasons for its imposition of the particular sentence." 18 U.S.C. § 3553(c); see United States v. Lewis, 424 F.3d 239, 244-45 (2d Cir.2005); United States v. Crosby, 397 F.3d 103, 116 (2d Cir.2005). Booker left section 3553(c) "unimpaired." Crosby, 397 F.3d at 116.

The Government challenges Judge Larimer's reasons for imposing a non-Guidelines sentence on essentially two grounds. First, the Government contends that several of the reasons relied upon, notably the Defendant's education, emotional condition, favorable employment record, family support, and good record on state probation are factors that the Sentencing Commission has concluded are "ordinarily" not relevant "in determining whether a departure is warranted." See U.S.S.G. §§ 5H1.2 (education); 5H1.3 (emotional condition); 5H1.5 (employment record); 5H1.6 (family ties); 5H1.11 (prior good works). By citing the Guidelines' departure standards, however, the Government fails to appreciate that Jones's post-Booker sentence is not a Guidelines departure; it is a non-Guidelines sentence. See Crosby, 397 F.3d at 111 n. 9. With the entire Guidelines scheme rendered advisory by the Supreme Court's decision in Booker, the Guidelines limitations on the use of factors to permit departures are no more binding on sentencing judges than the calculated Guidelines ranges themselves. Of course, a sentencing judge's obligation to "consider" the Guidelines, see 18 U.S.C. § 3553(a)(4), along with the other relevant factors listed in section 3553(a), see United States v. Canova, 412 F.3d 331, 350 (2d Cir.2005), includes the obligation to consider the Commission's relevant policy statements as well as the calculated Guidelines range. But "consideration" does not mean mandatory adherence.

The Government's misconception concerning the force of the Commission's policy statements limiting departures is illustrated by its reliance on decisions of this Court rendered before the Supreme Court's decision in Booker. See Brief for Appellant at 14 (citing United States v. Mora, 22 F.3d 409 (2d Cir.1994), and United States v. Stevens, 192 F.3d 263 (2d Cir.1999)).

Second, the Government challenges Judge Larimer's expression of the subjective component of his thinking as to the appropriateness of a non-Guidelines sentence. As the Government notes, Judge Larimer said he had "the sense" that Jones is capable of doing better and that he had a "gut feeling" about Jones. We think this criticism, too, fails to appreciate the enhanced scope of a sentencing judge's discretion in the post-Booker world of advisory Guidelines. Although the sentencing judge is obliged to consider all of the sentencing factors outlined in section 3553(a), the judge is not prohibited from including in that consideration the judge's own sense of what is a fair and just sentence under all the circumstances. That is the historic role of sentencing judges, and it may continue to be exercised, subject to the reviewing court's ultimate authority to reject any sentence that exceeds the bounds of reasonableness.

It is true that, after explaining his reasons for the particular non-Guidelines sentence he intended to impose, Judge Larimer gave no specific articulation as to why 15 months was the appropriate amount of punishment, i.e., why the sentence was 15 months, rather than, say, 14 or 16 months. We decline to impose a requirement for such specific articulation of the exact number of months of an imposed sentence. Selection of an appropriate amount of punishment inevitably involves some degree of subjectivity that often cannot be precisely explained. In light of the reasons of the sort identified by Judge Larimer, a sentencing judge has many available guideposts in ultimately selecting an amount of punishment. The judge undoubtedly is familiar with the maximum penalty authorized by Congress and the proportion of that maximum that a particular sentence reflects. The judge is also aware of both the calculated Guidelines range and the sentences typically imposed in the district for misconduct of comparable seriousness.

Judge Larimer's reasons for the non-Guidelines sentence he imposed, even if not "ordinarily" grounds for a pre-Booker Guidelines departure and even though influenced in part by his subjective assessment of the Defendant, are adequate to support his conclusion that a post-Booker non-Guidelines sentence was appropriate for Eric Jones, and they suffice to satisfy the statutory requirement to state "the reasons for [the court's] imposition of the particular sentence." 18 U.S.C. § 3553(c).

II. Reasonableness of the Non-Guidelines Sentence

We recently reviewed a challenge to a non-Guidelines sentence, alleged to be...