United States of America v. Javon Joshua Jennings

United States Court of Appeals
For the Eighth Circuit
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No. 19-3544
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Javon Joshua Jennings
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Council Bluffs
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Submitted: July 20, 2020
Filed: July 23, 2020
[Unpublished]
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Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Javon Jennings appeals his conviction and the sentence the district court1
imposed after he pleaded guilty to witness tampering and retaliating against a witness.
1The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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At sentencing, the district court ordered Jennings’s sentence to be served
consecutively to an unrelated state sentence and referenced U.S.S.G. § 5G1.3(a) (if
instant offense was committed after sentencing for undischarged term of
imprisonment, sentence for the instant offense shall run consecutively to the
undischarged term of imprisonment), which counsel pointed out did not apply to
Jennings, because the offense was committed after Jennings was convicted of the
state charges, but before he was sentenced. The court clarified that it was merely
referring to the reasoning of section 5G1.3(a), noted that the Guidelines were
advisory, and stated that, even if reliance on that section was incorrect, the court
would still impose the sentence consecutively. Jennings’s counsel has filed a brief
under Anders v. California, 386 U.S. 738 (1967), arguing that the district court erred
in declining to order Jennings’s sentence to run concurrently with his state sentence.
Jennings has filed a pro se brief raising additional issues.
Upon careful review, we conclude that the district court did not err in ordering
Jennings’s sentence to be served consecutively to his state sentence, and that any
error in referring to section 5G1.3(a) was harmless. We note that because Jennings
had not been sentenced in state court, he was covered by the catch-all provision of
section 5G1.3(d), which allows for a consecutive or a concurrent sentence. See 18
U.S.C. § 3584(a) (if a term of imprisonment is imposed on a defendant who is already
subject to an undischarged term of imprisonment, the terms may run concurrently or
consecutively); U.S.S.G. § 5G1.3(d) (in any other case involving an undischarged
term of imprisonment, the sentence for the instant offense may be imposed to run
concurrently, partially concurrently, or consecutively to achieve a reasonable
punishment for the instant offense); United States v. Jackson, 594 F.3d 1027, 1030
(8th Cir. 2010) (where there is clear record that district court intended to impose same
sentence and took into account potential impact of specific error alleged, it is
appropriate to treat alleged error as harmless).
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As to Jennings’s pro se arguments, we conclude that there was sufficient
factual basis to support his plea, see United States v. Christenson, 653 F.3d 697, 700
(8th Cir. 2011) (challenge to factual basis is reviewed for plain error if not raised in
the district court; court asks only whether there was sufficient evidence before district
court upon which it may reasonably determine that defendant likely committed
offense); and that his conviction on both counts did not violate double jeopardy, as
the counts required proof of different elements, see United States v. Gamboa, 439
F.3d 796, 809 (8th Cir. 2006) (Double Jeopardy Clause is violated in single
proceeding only where multiple punishments are imposed for same crime; no
violation if each offense requires proof of element not required by other). To the
extent Jennings attempts to assert ineffective assistance of counsel, we decline to
address the claim in this direct appeal. See United States v. Hernandez, 281 F.3d 746,
749 (8th Cir. 2002) (generally, ineffective-assistance claim is not cognizable on direct
appeal).
We have also independently reviewed the record under Penson v. Ohio, 488
U.S. 75 (1988), and we find no non-frivolous issues for appeal. Accordingly, we
affirm.
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