United States of America v. Andrew Timothy Jones

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4710
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW TIMOTHY JONES,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of North Carolina, at
Charlotte. Frank D. Whitney, District Judge. (3:03-cr-00055-FDW-DCK-1)
Submitted: October 3, 2023 Decided: November 28, 2023
Before KING, Circuit Judge, and MOTZ and FLOYD, Senior Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Leslie Carter Rawls, Charlotte, North Carolina, for Appellant. Dena J. King,
United States Attorney, Elizabeth M. Greenough, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Andrew Timothy Jones was convicted of attempted Hobbs Act robbery, 18 U.S.C.
§ 1951 (Count One); using and carrying a firearm during and in relation to the attempted
Hobbs Act robbery, 18 U.S.C. § 924(c)(1) (Count Two); bank robbery, 18 U.S.C. § 2113(a)
(Count Three); armed bank robbery, 18 U.S.C. § 2113(d) (Count Four); and using and
carrying a firearm during and in relation to the armed bank robbery, 18 U.S.C. § 924(c)(1)
(Count Five). The Government dismissed Count Three, and the district court sentenced
Jones to concurrent 77-month terms of imprisonment for Counts One and Four, a
120-month consecutive sentence for the first § 924(c) offense for using and carrying a
firearm during and in relation to attempted Hobbs Act robbery, and a 300-month
consecutive sentence for the second § 924(c) offense. The court also ordered Jones to serve
five years of supervised release on each count with the terms to run concurrently.
Pursuant to Jones’s 28 U.S.C. § 2255 motion, the district court vacated his
conviction for Count Two because attempted Hobbs Act robbery was not categorically a
crime of violence. Noting that the parties agreed “that a time-served sentence on the
remaining counts is appropriate,” the court found that “a resentencing hearing is
unnecessary and that a sentence of time served on the remaining counts is appropriate
pursuant to [18 U.S.C.] § 3553(a).” (J.A. 89). The court instructed the Clerk, “[w]ith the
consent of the parties,” “to issue an Amended Judgment imposing a sentence of time served
for the remaining counts, with all other terms and conditions remaining in effect.” (J.A.
89). A conforming amended judgment was filed, retaining the concurrent five-year terms
of supervised release.

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On appeal from the amended judgment, Jones asserts that the district court erred by
not stating a particularized basis for the supervised release term and by imposing a
substantively unreasonable supervised release sentence. A judgment entering the result of
a § 2255 resentencing “is a hybrid order that is both part of the petitioner’s § 2255
proceeding and part of his criminal case.” United States v. Hadden, 475 F.3d 652, 664 (4th
Cir. 2007). We generally “review the form of relief the district court awards to a successful
§ 2255 petitioner for abuse of discretion.” Id. at 667.
Moreover, errors invited by the party asserting them are not reviewable on appeal.
See United States v. Bennafield, 287 F.3d 320, 325 (4th Cir. 2002). In addition, even were
we to consider Jones’ sentencing challenge on the merits, our review would be only for
plain error because Jones failed to raise this issue below. United States v. Cohen, 63 F.4th
250, 258 & n.5 (4th Cir. 2023) (applying plain error where defendant did not request a
different supervised release sentence below), petition for cert. filed (June 20, 2023). To
establish plain error, Jones must show: “(1) error; (2) that is plain; and (3) that affects his
substantial rights.” United States v. King, 628 F.3d 693, 699 (4th Cir. 2011). Moreover,
we will exercise our discretion to correct plain error only if the error “‘seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings,’ or where failure to
correct would result in a ‘miscarriage of justice.’” United States v. Muslim, 944 F.3d 154,
164 (4th Cir. 2019) (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
The district court has “broad and flexible power . . . to fashion an appropriate
remedy” in granting relief on collateral review. United States v. Hillary, 106 F.3d 1170,
1171 (4th Cir. 1997) (internal quotation marks omitted). In Hadden, we explained that a

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“district court is authorized to conduct a resentencing in awarding relief pursuant to
§ 2255,” but that a hearing is not required in every case. 475 F.3d at 668. We observed
that, in a § 2255 proceeding, the district court may remedy an unlawful sentence by one of
the following: (1) releasing the prisoner, (2) granting the prisoner a future new trial, or
(3) imposing a new sentence either by (a) resentencing the prisoner or (b) correcting the
prisoner’s sentence. Id. at 667. “[T]he goal of § 2255 review is to place the defendant in
exactly the same position he would have been had there been no error in the first instance.”
Id. at 665 (internal quotation marks omitted).
Here, the parties agreed that a resentencing hearing was not required and that a
sentence of time served was appropriate. As such, we find that Jones is not entitled to relief
for numerous reasons. First, Jones invited the error and waived any reconsideration of his
supervised release term by arguing for the expedited imposition of a time served sentence
without a resentencing hearing.* Second, even if the district court erred in failing to
sua sponte reevaluate Jones’s supervised release term, Jones cites no cases directly on point
and, as such, has failed to show that any error was “plain.” Third, the district court did not
abuse its broad discretion by leaving the supervised release term untouched. It is
* Notably, Jones does not seek a new sentencing hearing. Nor could he given that
Jones himself sought the entry of a new criminal judgment without a resentencing hearing
in order to expedite his release. Jones does not explain how the district court should have
both entered a new judgment without a resentencing hearing and altered the supervised
release term, presumably without briefing on the issue or the preparation of a new
presentence report (which would have delayed his release). Thus, Jones is apparently
arguing that the district court was required to address the supervised release issue sua
sponte, predict the parties’ arguments, and make assumptions regarding his amended
Sentencing Guidelines range.

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undisputed that the supervised release term was originally appropriate, and while one of
Jones’ convictions was legally void, the facts of his criminal behavior had not changed.
Further, Jones presented no evidence or argument that the factors supporting a five-year
term of supervision had been altered. See United States v. Nichols, 897 F.3d 729, 738 (6th
Cir. 2018) (holding that, when choosing to “correct” a sentence rather than conduct a
de novo resentencing, district court “could properly rely on the explanation that the
sentencing court originally provided”).
Because there was no error in correcting Jones’ sentence without reconsidering his
supervised release term, we affirm Jones’ sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED

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