United States v. Jones

• Decision Date: 10 January 2014
• Docket Number: No. 13–1020.,13–1020.
• Parties: UNITED STATES of America v. Mekail Omar JONES, Appellant
• Court: U.S. Court of Appeals — Third Circuit

740 F.3d 127

UNITED STATES of America

v.Mekail Omar JONES, Appellant

No. 13–1020.

United States Court of Appeals,Third Circuit.

Argued Oct. 18, 2013.

Opinion Filed: Jan. 10, 2014.

Rebecca R. Haywood, Esq., Michael L. Ivory, Esq., Office Of United States Attorney, Pittsburgh, PA, Christine A. Sanner, Esq., Office of United States Attorney, Erie, PA, for United States of America.

Thomas W. Patton, Esq., Office of Federal Public Defender, Erie, PA, for Appellant.

Lisa B. Freeland, Esquire, Federal Public Defender, Thomas W. Patton, Esquire (Argued), Assistant Federal Public Defender, Office of Federal Public Defender, Erie, PA, for Appellant.

David J. Hickton, Esquire, United States Attorney, Michael L. Ivory, Esquire (Argued), Assistant United States Attorney, Rebecca R. Haywood, Esquire, Office of United States Attorney, Pittsburgh, PA, Christine A. Sanner, Esquire, Office of United States Attorney, Erie, PA, for Appellee.

Before: RENDELL, JORDAN and LIPEZ ^*, Circuit Judges.

OPINION

RENDELL, Circuit Judge:

Defendant Mekail Omar Jones appeals his sentence of 120 months imprisonment following his guilty plea to possession of a firearm by a convicted felon. Jones makes three claims of error by the District Court. First, he argues that his prior conviction for vehicular flight should not have counted as a crime of violence under the sentencing guidelines. Second, Jones contends that his conduct in this case did not support a guideline enhancement for assault on a police officer. Third, he states that the District Court erred by presuming his guidelines range to be reasonable, ignoring arguments made by his defense counsel.

For the reasons that follow we will affirm in part, and reverse in part, the District Court's judgment of sentence.

I.

On the afternoon of April 27, 2011, uniformed City of Erie police officers Ryan Onderko and Gregory Baney responded to a disturbance call at a bar located at Parade and 11th Streets in Erie, Pennsylvania. As the officers approached the bar in their marked police cruiser, they spotted an individual, later identified as Jones, running from the bar.

Officer Onderko was familiar with Jones from a prior arrest, as described below, and both officers were aware that Jones had an outstanding arrest warrant. As the police cruiser approached, Jones stopped running and began walking, and Officer Onderko was then able to recognize him. Officer Onderko exited the car and said, “hey, Jones, come here.” (App.258.) Jones then “took off running” toward 12th Street and Officer Onderko pursued him on foot, “yelling several times, ‘stop you're under arrest.’ ” (Id.) The foot-chase that ensued saw Jones lead Officer Onderko across traffic on 12th Street before heading back in the direction where the chase began.

As Officer Onderko closed in, he could tell that Jones was reaching or digging in his waistband, but could not discern what Jones was reaching for. (App.259.) Officer Baney parked the police cruiser, exited and began to pursue Jones as well. As Jones fled back towards the parking lot where the chase had begun, Officer Baney observed Jones retrieve a handgun from his waistband while he was “no more than ... two parking spots” away. (App.218.) Officer Onderko then caught up to Jones and tackled him from behind. At that moment, Officer Baney shouted, “Gun!” and the handgun flew out of Jones's hand. (App.219.) In tackling Jones, Officer Onderko suffered a complete tear of his anterior cruciate ligament. Yet Jones managed to escape and continue fleeing. Officer Baney grabbed Jones's shirt, but Jones slipped out of his shirt and again continued to run. Officer Baney then shot Jones with his taser from a distance of 30–40 feet three times, finally subduing Jones.

Police later recovered the firearm that Jones had removed from his waistband, a Smith & Wesson .38 caliber handgun. In a post-arrest statement, Jones, a convicted felon, admitted that he was carrying the gun. Jones was subsequently charged with, and pleaded guilty to, one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).

The Presentence Report (“PSR”) calculated Jones's base offense level to be 24, pursuant to U.S.S.G. § 2K2.1(a)(2), because Jones had previously been convicted of two “crimes of violence”: conspiracy to commit robbery, and fleeing or attempting to elude law enforcement. Jones objected, arguing that fleeing or attempting to elude was not a crime of violence. (App.47.)

This prior conviction was for a second degree misdemeanor charge of “Fleeing or Attempting to Elude [a] Police Officer” under Pennsylvania law, 75 Pa. Cons.Stat. § 3733. The relevant language of the statute is as follows:

Offense defined.—Any driver of a motor vehicle who willfully fails or refuses to bring his vehicle to a stop, or who otherwise flees or attempts to elude a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits an offense as graded in subsection (a.2).

The “grading” provision makes this offense a misdemeanor of the second degree, unless, while “fleeing or attempting to elude a police officer,” the driver (1) drives under the influence of alcohol or a controlled substance, or (2) crosses a state line, or (3) “endangers a law enforcement officer or member of the general public due to the driver engaging in a high-speed chase.” 75 Pa. Cons.Stat. § 3733(a.2)(i)-(iii). In that event, the offense is a third-degree felony.

The District Court first took note of several cases which had held that vehicular flight is categorically a crime of violence, as well as a non-precedential opinion of our Court in which we held that a conviction for vehicular flight under Pennsylvania law constituted a crime of violence. (App.298–300) (citing United States v. Jackson, 495 Fed.Appx. 224 (3d Cir.2012)).

However, the District Court did not resolve whether misdemeanor vehicular flight pursuant to 75 Pa. Cons.Stat. § 3733(a)(1) categorically constitutes a crime of violence under the sentencing guidelines. Instead, the District Court looked at the records of Jones's conviction and concluded, “the factual conduct attributed to the defendant in the criminal information ... and agreed to by the defendant during his colloquy is consistent with that attributed to the defendant in the Third Circuit's decision in Jackson and would support an application of the enhancement pursuant to a modified categorical approach.” (App.301.) The District Court then recounted that “during the [plea] colloquy, the defendant admitted to backing his vehicle into Officer Onderko's attended vehicle, engaging in a high speed chase, and failing to stop for multiple stoplights and stop signs. In addition, he admitted to striking a fence and driving onto a lawn.” (App.10–11.) Thus, the District Court concluded that Jones's prior conviction for fleeing and eluding was a crime of violence and overruled his objection.

The Government also objected to the PSR, urging that an additional six-level increase pursuant to U.S.S.G. § 3A1.2(c)(1) was warranted, because Jones assaulted Officer Onderko during the foot-chase. Jones objected to this enhancement. The District Court sustained the Government's objection, concluding that reaching for a loaded gun is enough to produce a substantial risk of serious bodily injury, thereby warranting the six-level enhancement.

Toward the conclusion of sentencing, the District Court addressed defense counsel's request for a variance, inquiring as to the factors that would support a sentence below the guidelines range. The Court also engaged in a colloquy with defense counsel concerning his argument that it did not promote respect for the law to enhance Jones's sentence to the statutory maximum based on uncharged conduct.

In calculating the final guidelines range, pursuant to § 2K2.1(a)(2), the District Court utilized the base offense level of 24 based on two prior convictions for crimes of violence. The Court then added four levels for an enhancement under § 2K2.1(b)(6)(B), not at issue here, for the possession of a firearm in connection with resisting arrest. Subtracting three levels for acceptance of responsibility, the offense level stood at 25 with a criminal history category III, corresponding to an imprisonment range of 70 to 87 months. Then, the subsequent addition of six levels for “assault” on Officer Onderko pursuant to § 3A1.2(c)(1) led to a new total offense level of 31, for an imprisonment range of 135 to 168 months. However, the statutory maximum time of imprisonment was ten years, so that pursuant to § 5G1.1(c), 120 months became Jones's guidelines range. The District Court accordingly sentenced Jones to 120 months' imprisonment. In so doing, the District Court declined to grant a downward variance.

II.

The District Court had jurisdiction over this case under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291.

Determination of what constitutes a crime of violence under the sentencing guidelines, and legal interpretations of the guidelines, are both subject to plenary review. United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.1996). Factual findings pertaining to sentencing are reviewed for clear error, and we review application of the guidelines to the facts for abuse of discretion. Id.;United States v. Blackmon, 557 F.3d 113, 118 (3d Cir.2009). We review procedural error for abuse of discretion, but if an appellant fails to raise a contemporaneous objection below, we will review for plain error. United States v. Russell, 564 F.3d 200, 203 (3d Cir.2009).

As noted above, Jones raises three separate claims of error concerning his sentence: (1) that the District Court erred in determining that his vehicular flight conviction constituted a crime of violence under the guidelines, (2) that the District Court erred in imposing a six-level enhancement for assaulting the police, and (3) that the District Court improperly presumed the applicable...