United States v. Jones

United States Court of Appeals
Fifth Circuit
F I L E D
June 15, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
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m 06-30855
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
EARNEST JONES III,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
______________________________
Before SMITH, BENAVIDES, and DENNIS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Earnest Jones III pleaded guilty, without a
plea agreement, to one count of possession of
a firearm by a felon. He received a non-guide-
line sentence of 60 months, a departure of 23
months from the top of his guideline range.
He appeals, claiming that the court based the
sentence on the inappropriate factor of his
lengthy arrest record. On plain error review,
we affirm.
I.
Jones was arrested while in possession of a
firearm. He admitted that he was on probation
for a conviction eleven days earlier in Louisi-
ana state court of attempted possession with

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intent to distribute crack cocaine, a felony. He
also admitted to being aware that he had no
right to own or possess a firearm.
Jones’s base offense level under the guide-
lines was 20. After a three-level reduction for
acceptance of responsibility, his offense level
was 17. His criminal history included a juven-
ile conviction of illegal carrying weapons, and
the adult cocaine conviction. Two points were
added because the instant offense was com-
mitted while Jones was on probation, resulting
in a criminal history category of III. The pre-
sentence investigation report (“PSR”) correct-
ly calculated the guidelines range as 30-37
months and recommended a sentence at the
bottom of that range. Neither party objected
to the PSR.
At the initial sentencing hearing, the district
court announced that it was “considering
sentencing Mr. Jones above the guideline
range in this case for certain reasons,” and it
granted a continuance so both parties could
submit memoranda. In its memo, the govern-
ment did not argue for a sentence outside the
range.
At the final sentencing hearing, the court
stated that Jones has “an extensive arrest rec-
ord here, although, none of these count for his
criminal history category. For someone who
is only 18 or 19 years old to have this exten-
sive arrest record indicates to me that his crim-
inal history category probably or clearly
understates the significance of his past criminal
conduct. . . . [P]articularly disturbing is the
fact that so many of [the arrests] involve
violence, weapons, and you appear to have
some kind of fascination with guns.”
The court concluded that “a sentence out-
side the guidelines range is clearly warranted in
your case, Mr. Jones. You have . . . engaged
in a long course of criminal conduct of using
and carrying firearms and guns. . . . [Y]our
conduct when put on probation in state court
to commit another serious felony made eleven
days later speaks volumes to me here as to the
need to give you a sentence above the
guidelines here in order to deter any future
conduct on your behalf . . . and to protect the
public; most importantly, to protect the public
from further crimes.”
Jones did not object following the court’s
statement of reasons. He appeals, arguing that
the court erred in considering his arrest record
at sentencing. Jones acknowledges that he did
not preserve the issue.
II.
“[I]t is an incorrect application of the
Guidelines for a district court to depart from
the applicable sentencing range based on a fac-
tor that the Commission has already fully
considered in establishing the guideline range
or . . . on a factor that the Commission has ex-
pressly rejected as an appropriate ground for
departure.” Williams v. United States, 503
U.S. 200 (1992). This statement remains con-
trolling law in this circuit even in the wake of
United States v. Booker, 543 U.S. 220 (2005).
See United States v. Jones, 444 F.3d 430, 434-
37 (5th Cir.), cert. denied, 126 S. Ct. 2958
(2006). Consideration of prior arrests by a
district court in sentencing is error. See id. at
436; U.S.S.G. § 4A1.3. If Jones had
preserved this error, we would likely review
under the harmless error standard.1
Because Jones did not preserve, we review
under United States v. Olano, 507 U.S. 725
1 See Williams, 503 U.S. at 203; Jones, 444
U.S. at 434-35 (questioning whether Williams
remains controlling after Booker).

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(1993). That framework requires Jones to
show (1) there was error, (2) the error was
plain, (3) the error affected his “substantial
rights,” and (4) the error seriously affected
“the fairness, integrity or public reputation of
judicial proceedings.” Id. at 732, 734.
The district court’s consideration, at sen-
tencing, of prior arrests was plain error. See
Jones, 444 F.3d at 436. Although the govern-
ment argues that the court discussed Jones’s
arrests only in passing, that argument is belied
by the record. The court commented that
Jones’s criminal history score inadequately re-
flected his past conduct immediately following
a review of Jones’s arrest record.
The court’s conclusion that Jones was “en-
gaged in a long course of criminal conduct of
using and carrying firearms and guns” neces-
sarily resulted from the court’s examination of
his past arrests for gun-related crimes; Jones
had only a single conviction for a gun-related
offense before the instant case. The court did
not find that Jones actually committed the of-
fenses for which he was arrested, and com-
mented only that it seemed unlikely that he
would have been arrested wrongfully so many
times. The plainly erroneous consideration of
the arrest record was a factor in sentencing.
The remaining considerations are whether
the error affected substantial rights and seri-
ously affected the fairness, integrity, or public
reputation of judicial proceedings. In Jones,
we noted that this circuit has applied two dif-
ferent tests to determine whether an error in
sentencing affected substantial rights. See
Jones, 444 F.3d at 437. In United States v.
Ravitch, 128 F.3d 865, 869 (5th Cir. 1997),
we used an objective test, to the effect that er-
ror affects substantial rights only if the district
court cannot impose the same sentence on re-
mand. More recently, in United States v. Vil-
legas, 404 F.3d 355, 364 (5th Cir. 2005), we
used a subjective test that states that error
affects substantial rights where there is a rea-
sonable probability that, but for the error, the
court would have imposed a lesser sentence.
In Jones, 444 F.3d at 438, we avoided this
conflict, because we concluded that the defen-
dant had failed to show the error affected his
substantial rights under either test.
As in Jones, we need not resolve this dis-
parity. Assuming, arguendo, that there is a
reasonable probability that Jones’s sentence
would have been less had the district court not
considered his arrest record, the error did not
seriously affect the fairness, integrity, or public
reputation of judicial proceedings.
Neither party disputed that Jones had a his-
tory with guns, and the court was “particularly
disturbed” by Jones’s possession of a gun little
more than a week after a state court felony
conviction. The court engaged in a lengthy
discussion of the defendant’s criminal history
and the offense characteristics, and it
addressed the arguments raised by defense
counsel. Finally, the court sought to align
Jones’s sentence with similarly situated defen-
dants, and it sentenced Jones in line with Unit-
ed States v. Smith, 440 F.3d 704 (5th Cir.
2006), in which we upheld a larger departure
to sixty months for a felon-in-possession
charge. Our respect for the district court’s dil-
igent effort at the sentencing hearing is not
undermined by its unnecessary discussion of
Jones’s arrest record.
The cases Jones cites to demonstrate that
this sentencing error seriouslyaffected the fair-
ness, integrity or public reputation of judicial
proceedings involve more egregious errors. In
United States v. Palmer, 456 F.3d 484, 491-92

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(5th Cir. 2006), we reversed a guilty-plea
conviction where the facts stipulated did not
provide a factual basis to conclude that the
defendant had committed the charged offense
of possession of a firearm in furtherance of a
drug trafficking crime. In United States v.
Severin, No. 05-30332, 2006 U.S. App.
LEXIS 25386 (5th Cir. Oct. 11, 2006) (per
curiam) (unpublished), we vacated a sentence
where the court had incorrectly applied the
firearm enhancement under the sentencing
guidelines without a factual basis, resulting in
an incorrectly calculated sentencing range.
These errors go to the criminality of the
underlying conduct, not to the discretionary
decision of how lengthy a sentence is nec-
essary to provide adequate deterrence and pro-
tect the public.
The judgment of sentence is AFFIRMED.

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