United States v. Jones

• Decision Date: 07 August 2020
• Docket Number: No. 17-30829,17-30829
• Citation: 969 F.3d 192
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Noel JONES, also known as Skinny Jones, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

969 F.3d 192

UNITED STATES of America, Plaintiff - Appellee

v.Noel JONES, also known as Skinny Jones, Defendant - Appellant

No. 17-30829

United States Court of Appeals, Fifth Circuit.

FILED August 7, 2020

Kevin G. Boitmann, Diane Hollenshead Copes, Esq., Assistant U.S. Attorneys, U.S. Attorney's Office, Eastern District of Louisiana, New Orleans, LA, for Plaintiff - Appellee.

Samantha Jean Kuhn, Assistant Federal Public Defender, Federal Public Defender's Office, Eastern District of Louisiana, New Orleans, LA, for Defendant - Appellant.

Before CLEMENT, SOUTHWICK, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Appellant Noel Jones argues that his conviction for conspiracy to distribute a kilogram or more of heroin should be vacated because (1) his factual basis was inadequate, (2) the district court improperly instructed him about the government's burden in proving the drug quantity, rendering his guilty plea unknowing and involuntary, and (3) he received ineffective assistance of counsel. We find no reversible error and AFFIRM.

I.

On March 27, 2014, Jones was charged in a 30-count indictment with conspiring, along with 11 other people, to distribute at least a kilogram of heroin between the years 2011 and 2014. In addition to conspiracy, the indictment charged Jones with six substantive drug offenses and being a felon in possession of a firearm. On March 31, 2015, Jones pleaded guilty to Count One of the indictment, which was the conspiracy charge. The court dismissed the remaining counts against him.

On June 24, 2015, the court sentenced Jones to 327 months imprisonment, with 87 months running concurrently to a previously imposed state sentence, and 5 years of supervised release.

Jones did not file a direct appeal. On June 24, 2016, Jones filed a motion under 28 U.S.C. § 2255 to vacate or set aside his sentence. He argued that his counsel was ineffective for multiple reasons, including because he failed to file a notice of appeal when Jones requested that he do so. On September 27, 2017, the district court reinstated the judgment in order to re-start Jones's time to file an appeal. Jones filed a timely notice of appeal on October 11, 2017.

II.

Because Jones did not raise any of his arguments before his sentence was imposed, the appropriate standard of review is plain error. United States v. Trejo , 610 F.3d 308, 313 (5th Cir. 2010). In order to prevail under that standard, Jones must show that he did not intentionally relinquish or abandon the claim of error, the error was plain, clear, or obvious, and the error affected his substantial rights. United States v. Perez-Mateo , 926 F.3d 216, 218 (5th Cir. 2019). "Where those three conditions are met, and the error also ‘seriously affects the fairness, integrity or public reputation of judicial proceedings,’ then ‘the court of appeals should exercise its discretion to correct the forfeited error.’ " Id . (quoting Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) ).

III.

Jones argues that the factual basis for his guilty plea was inadequate, his plea was involuntary because the district court misinformed him of the government's burden of proof, and that he received ineffective assistance of counsel. We address each argument in turn.

A. Sufficiency of the Factual Basis

According to Jones, the government's factual basis did not support his involvement in a larger conspiracy involving all twelve defendants and a kilogram of heroin. Upon reviewing the record, we conclude that Jones's guilty plea was adequately supported by his factual basis.

"A district court cannot enter a judgment of conviction based on a guilty plea unless it is satisfied that there is a factual basis for the plea." United States v. Hildenbrand , 527 F.3d 466, 474 (5th Cir. 2008) (citing Fed. R. Crim. P. 11(b)(3) ). "An appellate court reviews the district court finding that there was a factual basis for a guilty plea according to a clear error standard." United States v. Reasor , 418 F.3d 466, 474 (5th Cir. 2005). "In assessing factual sufficiency under the plain error standard, we may look beyond those facts admitted by the defendant during the plea colloquy and scan the entire record for facts supporting his conviction." Trejo , 610 F.3d at 313. The record must contain factual allegations indicating that the defendant committed each element of the crime, rather than mere conclusory statements of the legal elements. See United States v. Adams , 961 F.2d 505, 508–09 (5th Cir. 1992). To determine whether the factual basis is sufficient, the court compares "(1) the conduct to which the defendant admits with (2) the elements of the offense charged in the indictment or information." Hildenbrand , 527 F.3d at 474–75 (quoting United States v. Marek , 238 F.3d 310, 315 (5th Cir. 2001) (en banc)).

"To prove the offense of conspiracy to distribute a controlled substance, the government must establish (1) the existence of an agreement between two or more persons to violate narcotics laws, (2) the defendant's knowledge of the conspiracy, and (3) the defendant's voluntary participation in the conspiracy." United States v. Fuchs , 467 F.3d 889, 908 (5th Cir. 2006) ; see also United States v. Morgan , 117 F.3d 849, 853 (5th Cir. 1997). "Direct evidence of a conspiracy is unnecessary; each element may be inferred from circumstantial evidence." United States v. Mitchell , 484 F.3d 762, 768–69 (5th Cir. 2007) (quoting United States v. Casilla , 20 F.3d 600, 603 (5th Cir. 1994) ). "While a conspiracy conviction is supported by mere proof of an agreement involving drugs, and does not require actual possession and seizure of the drugs, the Government still must prove the quantity of drugs involved in the conspiracy." United States v. Daniels , 723 F.3d 562, 571 (5th Cir.), on reh'g in part , 729 F.3d 496 (5th Cir. 2013). The government must also prove "the conspiracy charged" rather than "some other conspiracy." Pattern Crim. Jury Instr. 5th Cir. § 2.16 (2019). "If ... a defendant was not a member of the conspiracy charged in the indictment, then ... that defendant [is] not guilty, even though that defendant may have been a member of some other conspiracy." Id .

Whether the evidence establishes a single conspiracy or multiple conspiracies is a question of fact. United States v. Simpson , 741 F.3d 539, 548 (5th Cir. 2014). "[T]he primary factors to be considered in determining whether a single conspiracy was proven are (1) the existence of a common goal, (2) the nature of the scheme, and (3) the overlapping of participants in the various dealings." United States v. Gallardo-Trapero , 185 F.3d 307, 315 (5th Cir. 1999).

Jones argues that the only conspiracy supported by the factual basis is an agreement between Jones and Dyer to sell gram quantities of heroin on the street totaling less than a kilogram of heroin. Jones argues that the only evidence connecting him to the larger, charged conspiracy with Taylor and the other co-defendants is the "generic, conclusory statement at the end of the factual basis" in which Jones stipulated that he should be held responsible for at least a kilogram of heroin.

Jones's factual basis states:

The government and the defendant, NOEL JONES, stipulate and agree that the defendant should be held accountable for at least one kilogram but less than three kilograms of heroin, as this amount of heroin was distributed during the course of the conspiracy as a result of the defendant's conduct and the reasonably foreseeable conduct of his co-conspirators within the timeframe of the Indictment.

It also explains that Jones "bought wholesale quantities of heroin from ARTHUR MCKINNIS and TERENCE TAYLOR," and that he "worked with TERRELL DYER to resell the heroin in gram quantities to street-level customers on a daily basis" from at least January 2011 to November 2013. Even disregarding the stipulation that Jones suggests is conclusory, it was not clear error for the district court to rely on these factual allegations to support Jones's plea to distributing a kilogram of heroin. Although he sold only "gram quantities," he did so "daily" for nearly three years. Together, these sales total more than a kilogram of heroin over the course of the conspiracy. See Mitchell , 484 F.3d at 768–69 (holding that the facts of a conspiracy can be proven through circumstantial evidence).

Further, the court did not clearly err in finding that individuals other than Jones and Dyer were part of the same conspiracy. Although there is limited evidence that Jones worked directly with other conspirators, a defendant need not know every member of a conspiracy personally. United States v. Chapman , 851 F.3d 363, 377 (5th Cir. 2017) (holding that it was unnecessary "for all co-conspirators to know each other or to work together on every transaction" (quoting United States v. DeLeon , 641 F.2d 330, 334 (5th Cir. 1981) )). Two defendants are part of the same conspiracy when the factfinder "reasonably could have inferred from the evidence that the defendants had a common goal of distributing illegal drugs for profit, that they knew they were part of a larger venture, and that the activities of each conspirator were advantageous to the success of the overall venture." United States v. Thomas , 12 F.3d 1350, 1357–58 (5th Cir. 1994). Indeed, we have noted that "[i]n many narcotics distribution networks the ultimate retailers may not know the identities of those who supply their wholesaler, and the retailers’ identities may be unknown to those suppliers; but all are well aware that they are participating in a collective venture." Id . at 1358 (quoting United States v. Lokey , 945 F.2d 825, 831 (5th Cir. 1991) ).

Even if Jones never met Taylor, this does not make the district court's finding clearly erroneous as long as the court could reasonably have inferred that Jones knew he was part of a larger venture that included others such as Taylor. Jones admitted that he purchased...