and 08-4175 UNITED STATES OF AMERICA v. Larnell Jones, Jr

NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NOS. 08-4174 and 08-4175
UNITED STATES OF AMERICA
v.
LARNELL JONES, JR.
On Appeal From the United States
District Court
For the Western District of Pennsylvania
(D.C. Crim. Action No. 2-04-cr-00036-001)
(D.C. Crim Action No. 2-07-cr-00357-001)
District Judge: Hon. Gary L. Lancaster
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 28, 2009
BEFORE: SMITH, FISHER and STAPLETON,
Circuit Judges
(Opinion Filed November 3, 2009 )

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OPINION OF THE COURT
STAPLETON, Circuit Judge:
Larnell Jones, Jr., appeals his seventy-two month sentence of imprisonment for
two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1), and his consecutive twelve month sentence of imprisonment for violation of
supervised release. For the reasons that follow, we will affirm.
Because we write only for the parties who are familiar with the factual context and
procedural history of this case, we set forth only those facts necessary to our analysis.
I.
On August 12, 2004, Jones pled guilty to an indictment charging him with one
count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). Jones was sentenced to forty-six months’ imprisonment and three years’
supervised release. Jones was released from prison and began serving his term of
supervised release on December 11, 2006. On December 12, 2006, Jones was arrested by
the City of Pittsburgh Police Department and later charged in state court with offenses
including illegal possession of a firearm, carrying a firearm without a license, receiving
stolen property, and driving under the influence. On July 14, 2007, Jones was again
arrested and later charged in state court with offenses including driving under the

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influence, illegal possession of a firearm, and carrying a firearm without a license.
Although a condition of his supervision required that he inform his probation officer of an
arrest, Jones did not notify his probation officer of either arrest.
On September 26, 2007, a federal grand jury issued an indictment charging Jones
with two counts of possession of a firearm by a convicted felon, in violation of 18 U.S.C.
§ 922(g)(1), based on the events of December 12, 2006, and July 14, 2007. Jones’s
probation officer filed a Supplemental Petition on Supervision noting Jones’s indictment
and alleging that he had violated the condition of his supervision requiring that Jones not
commit another federal, state, or local crime.
Jones entered a plea of guilty to both counts of the indictment, which also
constituted an admission of the supervised release violations. The District Court held a
combined sentencing hearing with regard to Jones’s criminal offenses and his supervised
release violations. The Court noted at the outset that the presentence report (“PSR”) had
calculated Jones’s advisory guideline range to be sixty-three to seventy-eight months based
upon a total offense level of nineteen and a criminal history category of VI.
Jones objected to the computation of his criminal history score, arguing that he
could not be assessed one criminal history point for a 1998 state conviction for carrying a
loaded weapon listed in ¶53 of the PSR because it was not based on information that was
sufficiently reliable. He noted that the PSR stated that the “facts of the case are
unknown.” Elimination of this criminal history point would lower his total criminal

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history score from thirteen to twelve and his criminal history category from VI to V, thus
reducing the guideline sentence range to fifty-seven to seventy-one months. Jones also
argued for a variance below the guideline range and for a concurrent term of imprisonment
for the supervised release violations.
The District Court found as a fact that Jones had been convicted of the offense
reported in ¶53 of the PSR. It did so based on a docket sheet certified by the court of
conviction which evidenced that Jones had pled guilty to the offense of carrying a loaded
weapon in 1998. In considering the § 3553(a) factors, the District Court noted Jones’s
significant criminal past, the seriousness of the offense, and the fact that the bottom of the
guideline range sentence it previously imposed on Jones for his original felon in
possession charge had not sufficiently impressed upon him the seriousness of his conduct.
The District Court sentenced Jones to seventy-two months’ imprisonment for the felon in
possession charges, a consecutive twelve-month term of imprisonment for the supervised
release violations, and three years of supervised release with listed conditions. It is this
sentence from which Jones appeals.
II.
The sentencing guidelines provide that “[i]n determining the relevant facts,
sentencing judges are not restricted to information that would be admissible at trial” but
may consider any information “so long as it has sufficient indicia of reliability to support
its probable accuracy.” U.S.S.G. § 6A1.3, cmt. (citing United States v. Watts, 519 U.S.

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148, 157 (1997)). In United States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009), relying on
the Supreme Court’s holding in Watts that facts considered at sentencing must be proved
by a preponderance of the evidence, we determined that an arrest record, without more, did
not suffice to carry the government’s burden of proving that a defendant had been
convicted of an earlier crime.
Here, however, Jones’s conviction of the offense in question was evidenced by a
record of the convicting court, the authenticity of which had been certified by that court,
and Jones proffered no reason to question the accuracy of that document. See United
States v. McKenzie, 539 F.3d 15, 19 (1st Cir. 2008) (holding that attested copies of
electronic docket entries may be sufficient proffer of prior conviction for sentencing
proceedings, noting that electronic docket records are increasingly the “norm,” and the
defendant did not show records were inaccurate and conceded they were properly
authenticated). The docket information was also consistent with the automated National
Crime Information Center Database printouts for the resolution of the case. See United
States v. Townley, 472 F.3d 1267, 1277 (10th Cir. 2007) (government met burden to show
prior conviction by preponderance of evidence where presented evidence derived from
National Crime Information Center database and confirmed by probation office). The
certified docket sheet clearly had “sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3, cmt. Therefore, we conclude that the District Court did not
abuse its discretion when it determined that the government had demonstrated the

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existence of the prior conviction listed at ¶53 by a preponderance of the evidence.
Jones’s argument to the contrary is based on the Supreme Court’s decisions in
Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13
(2005). In Taylor and Shepard, the Supreme Court addressed the range of information
upon which a sentencing judge may rely in determining whether a defendant’s prior
conviction satisfies the definition of “violent felonies” set forth in the Armed Career
Criminal Act, 18 U.S.C. § 924(e). In Shepard, the Court explained that, in making this
determination, a court could consider only the terms of the charging document, a plea
agreement or transcript of colloquy in which the factual basis for the plea was confirmed
by the defendant, or “some comparable judicial record of this information.” 544 U.S. at
26; see Taylor, 495 U.S. at 601-02 (determining that § 924(e) requires that the trial court
look only to the fact of conviction and the statutory definition of the prior offense, not the
particular facts underlying the conviction).
The Court in Taylor and Shepard was addressing issues distinct from that before
the District Court in this case. The sentencing judges in those cases were required to
determine whether the convictions before them were “violent” within the meaning of the
Armed Career Criminal Act. Here, the only fact relevant under the guidelines was
whether Jones was convicted of the alleged offense in 1998.
Decisions from our sister Courts of Appeals support the conclusion that the
holdings in Shepard and Taylor do not limit the type of documents a sentencing court may

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consider for purposes of determining the fact of a prior conviction in order to compute a
defendant’s criminal history score. These decisions have consistently rejected applying
the holding of Shepard in such instances and continue to consider whether the documents
submitted have sufficient indicia of reliability to support their probable accuracy. See
United States v. Felix, 561 F.3d 1036, 1045 (9th Cir. 2009) (determining that defendant’s
reliance on Shepard was without merit because the issue was only whether the documents
supported the fact of the conviction, not its type or character); United States v. Neri-
Hernandes, 504 F.3d 587, 591 (5th Cir. 2007) (Shepard does not apply when determining
whether the government has satisfied its burden of proof as to the existence of a prior
conviction; a court must consider whether the submitted documents have sufficient indicia
of reliability to be used as evidence of prior conviction); United States v. Zuniga-Chavez,
464 F.3d 1199, 1204 (10th Cir. 2006) (Shepard did not address what documents could be
used to prove the fact of a prior conviction; rather, Shepard was only concerned with what
documents could be used to prove the facts underlying the conviction where the elements
of the state crime did not mirror the federal definition; therefore Shepard was not
controlling).
III.
We are unpersuaded by Jones’s argument that the District Court did not consider all
of the § 3553(a) factors and his arguments regarding those factors. We are also
unpersuaded that the sentence was substantively unreasonable. The record as a whole

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shows that the District Court conducted a detailed and thorough analysis of the relevant §
3553(a) factors and of Jones’s arguments for a variance with respect to these factors.
In addressing the factors set forth in § 3553(a), the District Court began with the
nature and circumstances of the offense, noting that the offense was not violent in nature
but that it was part of a pattern of criminal activity. In considering the history and
characteristics of the defendant, the Court noted that Jones was thirty-two years old at the
time of the offense and his conduct could not be attributed to youthful indiscretion, that he
had a significant history of criminal conduct as an adult, and that he consistently violated
the terms of his probation and supervision. The Court noted Jones’s arguments about
witnessing his mother commit a homicide, about his physical and mental health problems,
about his admitted alcohol and substance abuse, and about his having received his GED
and obtained employment “in some instances.” The Court then considered the need to
impose a sentence that reflected the seriousness of the offense and promoted respect for
the law, noting that it is a serious offense for a convicted felon to possess a firearm. The
Court also noted the significant need for deterrence because of Jones’s extensive criminal
history and the need to protect the public.
Immediately after imposing the sentence, the Court provided the following
explanation of the principal reasons for its imposition:
Defendant stands before us for the second time for possession of a
firearm by a felon. Convicted felons are prohibited from possessing firearms

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Jones relied upon the same § 3553(a) variance arguments when he requested that the1
violation of supervised release sentence run concurrent with the sentence on the
indictment. In denying a concurrent sentence, the District Court incorporated its §
3553(a) analysis from the denial of the variance. App. at 110. The Court noted that it
was within its discretion to make the sentence run consecutively, “[o]therwise the
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for good reason, and the possession of them warrants a significant penalty.
At his first sentencing, I noted his difficult childhood and imposed a
sentence at the bottom end of the estimated guideline range. His conduct in
this case, however, shows that that was not apparently the appropriate
sentence. In order to impress upon the defendant the seriousness of his
conduct, I will impose a substantial period of incarceration along with the
maximum period of supervised release to include a substance abuse
treatment program.
App. at 108.
The record reflects that the District Court gave meaningful consideration to all the
relevant § 3553(a) factors. That it did this before giving Jones an additional opportunity to
address the Court does not make the Court’s discussion a “meaningless rote recitation” of
the factors. Additionally, the fact that the Court reiterated certain factors after imposing
the actual sentence does not detract from the previous analysis in which the Court
thoroughly considered all the relevant factors. Moreover, as the above-quoted passage
suggests, a review of the record contradicts Jones’s argument that the District Court failed
to rule on his request for a variance based on his personal history.
A review of the record does not reveal any procedural error. Nor can we say that
the sentence is substantively unreasonable given the Court’s reasoned and thorough
explanation for imposing a sentence within the advisory guideline range.1

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violation of the supervised release is meaningless.” App. at 113. In addition to all the
factors previously discussed, the Court noted that Jones would be forty years old when he
was released from incarceration and would still have a full life ahead of him. We note
that the twelve month consecutive sentence was below the advisory guideline range of
eighteen to twenty-four months. “A district court’s primary consideration in handing
down a revocation sentence is the defendant’s breach of trust.” United States v. Dees,
467 F.3d 847, 853 (3d Cir. 2006) (finding maximum statutory sentence was reasonable
where defendant had multiple and flagrant breaches of trust that began almost
immediately upon his release from prison, and rehabilitation had not been achieved
during the first term of imprisonment). Because the District Court gave meaningful
consideration to the § 3553(a) factors, and given Jones’s repeated breaches of trust that
began immediately upon his release from incarceration, the District Court did not commit
procedural error in imposing a consecutive sentence, nor was that sentence substantively
unreasonable.
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For these reasons, the judgment of the District Court will be affirmed.

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