United States of America v. Dustin D. Jones

United States Court of Appeals
For the Eighth Circuit
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No. 21-1711
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United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Dustin D. Jones,
lllllllllllllllllllllDefendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: January 10, 2022
Filed: July 5, 2022
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Before COLLOTON, KELLY, and KOBES, Circuit Judges.
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COLLOTON, Circuit Judge.
Dustin Jones pleaded guilty to unlawful possession of a firearm as a previously
convicted felon. See 18 U.S.C. § 922(g)(1). At sentencing, the district court1 varied
upward from the advisory guideline range of 51 to 63 months, and sentenced Jones
1The Honorable Greg Kays, United States District Judge for the Western
District of Missouri.

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to 105 months’ imprisonment. On appeal, Jones argues that the district court gave
weight to an improper and irrelevant sentencing factor and thus imposed an
unreasonable sentence. We discern no reversible error, and therefore affirm the
judgment.
The conviction arose from an incident on November 24, 2018, in
Independence, Missouri. Police received a report of a breaking and entering at a
residence, and a responding officer arrested Jones near the victim’s residence.
Assisting officers recovered a loaded firearm on the ground, approximately ten feet
from where Jones was placed in custody. The arrest occurred only five days after
Jones was released on parole after serving a term of imprisonment for involuntary
manslaughter in Missouri. Jones was forbidden by law to possess a firearm because
he had sustained five prior convictions for felony offenses.
Jones then pleaded guilty to the felon-in-possession firearms offense. In
calculating Jones’s advisory sentencing range under the sentencing guidelines, the
probation office determined that Jones had committed the instant offense after
sustaining a prior felony conviction for a “crime of violence”—namely, involuntary
manslaughter in Missouri. See USSG § 2K2.1(a)(4)(A); Mo. Rev. Stat. § 565.024.1.
The presentence report concluded that involuntary manslaughter was a crime of
violence under the guidelines, because it had as an element the use, attempted use, or
threatened use of physical force against the person of another. See USSG
§ 4B1.2(a)(1). The report thus recommended a base offense level of 20 and an
advisory guideline range of 92 to 115 months’ imprisonment.
Jones objected to the report and argued that his manslaughter conviction did
not qualify as a crime of violence under the “force” clause of the guideline. The
government ultimately agreed. As a result, the parties determined that Jones’s base
offense level should be 14.
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At sentencing, the district court accepted the recommendation of the parties on
this point. After applying adjustments, the court arrived at a total offense level of 17.
With a criminal history category of VI, Jones’s advisory sentencing guideline range
was 51 to 63 months’ imprisonment. Jones sought a sentence within the range, and
the government recommended an upward variance to a sentence of 108 months’
imprisonment.
With respect to Jones’s prior conviction for involuntary manslaughter, the
district court remarked that “someone’s already lost their life at your hands,” and
explained that “but for the tortured logic of our court system” under which “shooting
another human being to death” is not considered “a violent crime,” the court would
have arrived at “a much higher guideline range.” The court then considered the
sentencing factors set forth in 18 U.S.C. § 3553(a), and decided to vary above the
advisory guideline range based on the need to protect the public, the need to afford
adequate deterrence, and the need to promote respect for the law. The court
ultimately imposed a sentence of 105 months’ imprisonment.
Jones argues that the sentence was excessive and unreasonable. We review the
reasonableness of a sentence under a deferential abuse-of-discretion standard. Gall
v. United States, 552 U.S. 38, 51 (2007). Jones contends that the district court placed
significant weight on an improper factor—namely, the court’s “personal opinion” that
governing precedent on the meaning of “crime of violence” was “tortured.” Jones
argues that if the district court instead had agreed with appellate decisions dictating
that involuntary manslaughter was not a crime of violence, then there is a “real
possibility” that he would have received a lower sentence.
That the district court may have disagreed with the sentencing guideline as
construed by the appellate courts does not amount to an abuse of discretion.
Notwithstanding any such disagreement, the court properly calculated the advisory
range. In determining whether to vary from that range to fashion a sentence that was
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sufficient to comply with the purposes of sentencing under 18 U.S.C. § 3553(a), the
court was not bound to adhere to the policies of the advisory guidelines. See Spears
v. United States, 555 U.S. 261, 263-66 (2009) (per curiam); United States v. Parker,
762 F.3d 801, 812 (8th Cir. 2014). And even if the court did not quarrel with a policy
of the guidelines for setting the base offense level, the court was allowed to account
for factors that it believed were not adequately weighed by the guidelines. See United
States v. Davis, 932 F.3d 1150, 1153 (8th Cir. 2019).
Jones’s prior conviction for involuntary manslaughter did not qualify as a crime
of violence under the guidelines, even though Jones shot the victim to death, because
the offense does not “categorically” require an offender to use force, attempt to use
force, or threaten to use force against the person of another. That is, some offender
could commit involuntary manslaughter in Missouri without meeting one of the force-
related elements. Insofar as the district court’s reference to the “tortured logic of our
court system” registered disagreement with the categorical approach, the court did not
refuse to apply it in determining the advisory range. And in varying from the range,
it was permissible for the court to consider that Jones would have been assessed a
higher offense level under a fact-based approach to the phrase “crime of violence”
that encompassed reckless conduct. Alternatively, if the court meant to express no
policy disagreement with the guideline, then the court was allowed to vary upward
on the ground that the base offense level did not account for the fact that Jones shot
a victim to death in his previous offense. Either way, the court did not abuse its
discretion by considering an improper factor.
The judgment of the district court is affirmed.
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