USA v. Noah Jones

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11461
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOAH JONES,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:21-cr-00212-TFM-MU-1
____________________
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2 Opinion of the Court 22-11461
Before J ORDAN, ROSENBAUM , and J ILL PRYOR , Circuit Judges.
PER CURIAM:
Noah Jones appeals the 84-month sentence imposed by the
district court after he pled guilty to being a felon in possession of a
firearm under 18 U.S.C. § 922(g)(1). Mr. Jones argues that the dis-
trict court’s 27-month upward variance above the top end of the
applicable Sentencing Guidelines range of 46 to 57 months was pro-
cedurally and substantively unreasonable. After review of the par-
ties’ briefs and the record, we vacate and remand for resentencing.
I
On December 26, 2020, a police officer in Mobile, Alabama
attempted to stop a vehicle driven by Mr. Jones for making a turn
without signaling. Mr. Jones, who was out on bond at the time
pending state murder charges, responded by making a turn and tak-
ing off at a high rate of speed. After traveling a few blocks, Mr.
Jones lost control of his vehicle and slammed into a tree in a vacant
lot. Mr. Jones then fled on foot through several backyards before
being apprehended.
When the police searched Mr. Jones’ vehicle, they found a
Glock pistol loaded with a high-capacity magazine between the
driver’s seat and the center console. On the back floorboard of the
vehicle, the officers found another loaded Glock pistol, a loaded
Taurus pistol, and a wallet containing identification belonging to
someone other than Mr. Jones.
A
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22-11461 Opinion of the Court 3
A grand jury returned an indictment charging Mr. Jones
with illegal gun possession by a felon in violation of 18 U.S.C. §
922(g)(1) (Count I) and receipt of a firearm by a person under in-
dictment in violation of 18 U.S.C. § 922(n) (Count II). The indict-
ment also contained a forfeiture notice relating to the three fire-
arms found in the vehicle.
Mr. Jones pled guilty to Count I pursuant to a plea agree-
ment. The government in return agreed to dismiss Count II and
to recommend a sentence at the low end of the Sentencing Guide-
lines range. Mr. Jones agreed to waive most of his appellate rights
but reserved the right to directly appeal any sentence which consti-
tuted “an upward departure or variance from the advisory guide-
line range.” The district court accepted Mr. Jones’ guilty plea at a
change of plea hearing.
B
A probation officer prepared a presentence report (“PSR”)
before sentencing. The PSR recommended a guideline imprison-
ment range of 46 to 57 months. In calculating the offense level, the
PSR set the base offense level at 22. Mr. Jones began with a base
offense level of 22 because his offense involved a semiautomatic
firearm that could hold a high-capacity magazine and because he
had a prior robbery conviction that was deemed a crime of vio-
lence. Mr. Jones’ offense level was increased two points, to 24, be-
cause he “recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing from a law
enforcement officer.” See U.S.S.G. § 3C1.2. The adjusted offense
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4 Opinion of the Court 22-11461
level of 24 was then reduced by three levels for acceptance of re-
sponsibility, resulting in a total offense level of 21.
The PSR also described Mr. Jones’ criminal history, which
involved a state armed robbery conviction in 2017 and a state con-
viction for leaving the scene of an accident with property damage
in 2021. The PSR attributed five criminal history points to these
two prior convictions, placing Mr. Jones in a criminal history cate-
gory of III. With respect to Mr. Jones’ robbery conviction, the PSR
stated that “in the course of committing or attempting to commit
a theft of an iPhone and cigarettes,” Mr. Jones, “use[d] or
threaten[ed] the imminent use of force against the victim, while
armed with a gun.”
Additionally, the PSR indicated that Mr. Jones had pending
state murder charges for which he had been released on bond when
he committed the offense in this case. Aside from case-identifying
information, the PSR stated: “The alleged details are that on Octo-
ber 2, 2016, the defendant, with the intent to cause the death of
another person, caused the death of Deanthony Means with a fire-
arm.” According to the PSR, Mr. Jones also had other pending state
charges for firearm possession, attempt to elude, and resisting ar-
rest stemming from the same incident as his federal charges in this
case.
Mr. Jones’ criminal history category of III and an offense
level of 21 yielded a Sentencing Guidelines range of 46 to 57
months.
C
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22-11461 Opinion of the Court 5
The government did not object to the PSR, but Mr. Jones
raised primarily two written objections. First, Mr. Jones objected
to the application of the § 3C1.2 enhancement because he believed
that his conduct at the time of his arrest did not create a substantial
risk of death or serious bodily injury. Second, Mr. Jones argued
that the base offense level should be 20, rather than 22, because his
second-degree robbery conviction did not qualify as a “crime of vi-
olence” as the term is defined in the Sentencing Guidelines.
The sentencing hearing started off with the district court
hearing argument on those two objections. Neither side brought
up the pending state murder charges. After dispensing with Mr.
Jones’ second objection, the district court stated:
The other thing that I cannot turn a blind eye to and
that’s a firearm-related offense. The defendant shot
and killed someone, whether it was murder or not,
capital murder or not, he shot and killed somebody.
This, to me, indicates somebody who has shown the
ultimate disregard for other people.
Regardless of what occurred on this occasion -- and I
don’t know all the details of it -- he shouldn’t have,
because he had a felony conviction at the time,
shouldn’t have had a gun to shoot somebody and kill
them.
* * *
He's already used [a pistol] to kill somebody before.
So it appears to me that that’s the reason that he has
a firearm is to use it against someone.
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6 Opinion of the Court 22-11461
Although Mr. Jones had not objected to the PSR referencing
his pending state murder charges, he did object following the dis-
trict court’s statement. Mr. Jones objected to any conclusion that
he was “guilty of the crime of murder” or “that he actually used a
firearm to kill an individual” because it was merely a charge at that
point. The district court responded by saying that “I understand
your argument, and I overrule that.”
In response to further objection by Mr. Jones, the district
court explained that “[e]ven if I set aside the murder charge, the
flight, the initial robbery, the possession of the firearm on this oc-
casion, all of that, in my opinion . . . warrants an upward depar-
ture.”
Although the government recommended a sentence of 46
months, which was the low end of the Sentencing Guidelines
range, the district court imposed a term of imprisonment of 84
months. The district court stated that its 27-month upward vari-
ance “addresses the seriousness of the offense, the sentencing ob-
jectives of punishment, deterrence, and incapacitation” and was
“appropriate . . . considering all of the sentencing factors.” Accord-
ing to the district court, “the totality of the circumstances of this
case indicate[d] that Mr. Jones is a dangerous individual who has
no regard for the safety of other people or their property and that
his case is not within . . . the heart of the guidelines.”
During sentencing, the government asked the district court
if it would make a finding, based on United States v. Keene, 470 F.3d
1347, 1349 (11th Cir. 2006), as to the Sentencing Guidelines and
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22-11461 Opinion of the Court 7
how they applied in this case, and if it would impose the same sen-
tence regardless. The court responded: “Yes. This sentence is, I
think, the appropriate sentence regardless of the guidelines. As I
said, I would’ve departed upward if I had to, as the guidelines are
now advisory.”
The district court ultimately imposed a sentence of 84
months, to run concurrently with any sentence imposed in the re-
lated state case, followed by a supervised release term of three
years. The district court noted in its statement of reasons that the
above-guideline sentence was based on the nature and circum-
stances of the offense and Mr. Jones’ history and characteristics.
The district court further stated that “[t]he sentence imposed ad-
dresses the seriousness of the offense and meets the sentencing ob-
jectives of deterrence, incapacitation, and punishment.”
Mr. Jones timely appealed.
II
We review the substantive reasonableness of a sentence un-
der a “deferential abuse of discretion standard.” United States v.
Early, 686 F.3d 1219, 1221 (11th Cir. 2012) (citing Gall v. United
States, 552 U.S. 38, 41 (2007)). We use a two-step process to review
the reasonableness of a sentence imposed by a district court. See
United States v. Cubero, 754 F.3d 888, 892 (11th Cir. 2014). First, we
determine whether the sentence is procedurally sound. See id. As-
suming it is, we then examine whether the sentence is substan-
tively reasonable given the totality of the circumstances and the
sentencing factors set out in 18 U.S.C. § 3553(a). See id. At both
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8 Opinion of the Court 22-11461
steps of the process, the party challenging the sentence bears the
burden of showing it is unreasonable. See United States v. Pugh, 515
F.3d 1179, 1189 (11th Cir. 2008).
III
On appeal, Mr. Jones argues that the district court imposed
a procedurally and substantively unreasonable prison sentence of
84 months. See Appellant’s Br. at 9. Mr. Jones argues that his sen-
tence is procedurally unreasonable because it rests on the district
court’s findings that he “shot and killed someone” and was guilty
of the pending state murder charge. See id. Mr. Jones contends that
this finding by the district court is clearly erroneous because there
was no reliable evidence in the record to support it. See id. Addi-
tionally, Mr. Jones argues that his sentence is substantively unrea-
sonable because the district court placed significant weight on facts
that were already taken into account by the Sentencing Guidelines.
See id.
A
A sentence is procedurally unreasonable if the district court
commits a “significant procedural error” such as failing to calculate
or incorrectly calculating the guidelines range, treating the guide-
lines as mandatory, failing to consider the § 3553(a) factors, failing
to adequately explain the chosen sentence, or selecting a sentence
based on clearly erroneous facts. See Pugh, 515 F.3d at 1190.
Mr. Jones’ argument here focuses on the latter procedural
deficiency. He believes that his sentence is procedurally unreason-
able because “it is based on the district court’s clearly erroneous
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22-11461 Opinion of the Court 9
finding that [he] ‘shot and killed someone.’” Appellant’s Br. at 17.
According to Mr. Jones, “it was error for the district court to con-
clude that [he] shot and killed someone’ and to then rely on that
conclusion to support an upward variance from the guideline
range.” Id. at 19.
The government responds that if any error occurred, it was
harmless because the district court stated on the record that it
would have imposed the same sentence regardless of the pending
state murder charges. Appellee’s Br. at 15.
We conclude that Mr. Jones has the better argument. The
district court relied on—as the government does not contest—a
clearly erroneous fact in sentencing Mr. Jones. The totality of the
district court’s statements on the record, and the nature of the state
pending charges, leaves us unsure as to whether the error was
harmless such that we must vacate and remand for resentencing.
While “failure to object to allegations of fact in a [PSR] ad-
mits those facts for sentencing purposes,” United States v. Wade, 458
F.3d 1273, 1277 (11th Cir. 2006), the district court may still, as it did
here, consider a defendant’s objection at the sentencing hearing.
See United States v. Harrison, 743 F.3d 760, 762 (10th Cir. 2014). See
also United States v. Hollander, 287 Fed. Appx. 74, 75 (11th Cir. 2008)
(considering government’s newly raised objection to PSR at sen-
tencing). And an objected-to-fact can only be considered in sen-
tencing if it is proven by a preponderance of the evidence. See
United States v. Barakat, 130 F.3d 1448, 1452 (11th Cir. 1997) (“Rele-
vant conduct of which a defendant was acquitted nonetheless may
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10 Opinion of the Court 22-11461
be taken into account in sentencing for the offense of conviction,
as long as the government proves the acquitted conduct relied
upon by a preponderance of the evidence.”).
Here, the district court had no evidence—only an unproven
charge—on which to base its conclusion that Mr. Jones killed some-
one with a gun. As district courts regularly instruct juries in this
circuit, an “indictment or formal charge against a defendant isn’t
evidence of guilt.” 11th Cir. Criminal Pattern Jury Instructions
B2.1 (March 2022). Thus, even the lesser standard of a preponder-
ance of the evidence was not met. For purposes of sentencing, the
finding that Mr. Jones killed someone with a gun was clearly erro-
neous.
Multiple points in the transcript reflect the district court’s re-
liance on that clearly erroneous fact and preclude a finding of harm-
lessness. First, The district court expressed its inability to “turn a
blind eye” to that fact that “[t]he defendant shot and killed someone
. . . . ” Second, when Mr. Jones’ counsel objected that his 2016
charge for murder and felony murder were “still pending” and he
was not “convicted of that,” the district court overruled the objec-
tion. Third, when Mr. Jones’ mother criticized the district court at
sentencing for having “already accused [her] child of being guilty
of murder and he hasn’t even been to court,” the district court ex-
plained, “I bring up the fact that somebody is dead, shot by him.
He shouldn’t have even had a gun at the time.”1
1 The danger in relying on mere accusations of a crime in sentencing is exem-
plified by the subsequent history of Mr. Jones’ state case. After Mr. Jones’ filed
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22-11461 Opinion of the Court 11
B
Under our precedent, we need not review an issue when (1)
the district court states it would have imposed the same sentence,
even absent an alleged error, and (2) the sentence is substantively
reasonable. See Keene, 470 F.3d at 1349. “Our rationale for this pol-
icy is to avoid ‘pointless reversals and unnecessary do-overs of sen-
tence proceedings.’” United States v. McLellan, 958 F.3d 1110, 1116
(11th Cir. 2020) (quoting Keene, 470 F.3d at 1349).
Although the district court said it would have imposed the
same sentence “[e]ven if [it] set aside the murder charge,” we have
serious doubts as to whether it was actually able to do so given its
multiple condemnations of Mr. Jones as a murderer and overruling
of his objection to that characterization. See United States v. Johnson,
648 F.3d 273, 279 (5th Cir. 2011) (vacating sentence for considering
bare arrest records even though district court said “the sentence is
not based on the arrests”). Murder is among the most serious of
crimes, and it is difficult for us to see how the district court could
his opening brief in this appeal, the state dismissed the murder charge and
amended the felony murder charge to discharging a gun in an occupied dwell-
ing, to which he pled guilty. Appellant’s Reply Br. at 1 n.1. We take judicial
notice of the of the Conviction Report in Mr. Jones’ state case confirming the
same. See Conviction Report at D.E. 161, State of Alabama v. Noah Jones, Case
No. 17-5257 (Ala. Cir. Ct. Aug. 3, 2022). See also United States v. Jones, 29 F.3d
1549, 1553 (11th Cir. 1994) (“[A] court may take notice of another court’s order
only for the limited purpose of recognizing the ‘judicial act’ that the order rep-
resents or the subject matter of the litigation”).
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12 Opinion of the Court 22-11461
have put aside its view of Mr. Jones as a murderer. The govern-
ment, in other words, has not met its burden of showing that the
district court’s error was harmless. See United States v. Pon, 963 F.3d
1207, 1227 (11th Cir. 2020).2
IV
We vacate Mr. Jones’ sentence. The 84-month sentence was
procedurally unreasonable, and Mr. Jones was prejudiced by the
error. We remand for resentencing.
VACATED AND REMANDED FOR RESENTENCING.
2 We express no view as to whether Mr. Jones’ sentence is substantively rea-
sonable.
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