United States of America v. Mario Jones

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2008
Decided June 4, 2008
Before
ILANA DIAMOND ROVNER, Circuit Judge
DIANE S. SYKES, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 08‐1122
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MARIO JONES,
Defendant‐Appellant.
Appeal from the United States
District Court for the
Southern District of Illinois.
No. 07 CR 30097
G. Patrick Murphy,
Judge.
O R D E R
A 911 dispatcher received a call warning that a man “walking through the projects”
in Alorton, Illinois, was “shooting a gun.” The caller identified the shooter as Mario Jones
and described his attire. A police officer responded and detained a man fitting the caller’s
description, later identified as Jones. A pat‐down search revealed a revolver in his
waistband. Jones was arrested and charged in federal court with possession of a firearm by
a felon. See 18 U.S.C. § 922(g)(1). At trial Jones attempted to establish through cross‐
examination that the Alorton officer had lied when he said he found the gun on Jones. A
jury found Jones guilty, and he was sentenced to 115 months’ imprisonment.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08‐1122 Page 2
Jones appeals, but his appointed counsel has moved to withdraw because he cannot
discern a nonfrivolous basis for appeal. See Anders v. California, 386 U.S. 738 (1967). Jones
did not accept our invitation to respond to counsel’s motion, see CIR. R. 51(b), but instead he
moved for the appointment of substitute counsel. Our review is limited to the potential
issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968,
973‐74 (7th Cir. 2002).
In his brief counsel identifies three potential issues that Jones might raise on appeal.
First, counsel considers whether Jones could argue that the district court abused its
discretion by purportedly limiting the defense from discussing during closing argument a
highly publicized confrontation between a motorist and a police officer in suburban
St. Louis, Missouri. Trial counsel had suggested that threats made by the officer during that
incident, which occurred just weeks before Jones’s trial, would never have come to light had
the motorist not recorded a video and posted the footage on You Tube. And without a
video, counsel told the jury, the Alorton “officer’s word” that he found the gun in Jones’s
waistband “can’t alone give you a reasonable doubt.”
It is within a district court’s discretion to exclude peripheral issues from closing
arguments, see United States v. White, 472 F.3d 458, 463 (7th Cir. 2006); United States v. Snyder,
189 F.3d 640, 647 (7th Cir. 1999), and indeed it is the duty of the court to exclude matters
that might perpetuate preexisting prejudices, see Doe v. Burnham, 6 F.3d 476, 481 (7th Cir.
1993). In this case it is difficult to discern any limitation imposed by the court—other than a
general admonishment that defense counsel should “make it brief”—and counsel (who also
represented Jones at trial) does not say what else he might have told the jury about the
incident if given the additional “latitude” he says he was denied. In any event, the court
would have been within its discretion to preclude all mention of the taped encounter. That
incident had nothing do with Jones’s case, the video was not part of the trial evidence, and
defense counsel’s only purpose in bringing it up was to bolster his position that a police
officer’s uncorroborated testimony cannot support a guilty verdict. Therefore, counsel
correctly concludes that this argument is frivolous.
Second, counsel considers whether Jones could challenge his prison sentence. In
assessing the legitimacy of Jones’s sentence, counsel initially evaluates whether the district
court was aware that it must not presume a sentence within the guidelines’ range to be
reasonable. See Gall v. United States, 128 S. Ct. 586, 597 (2007); United States v. McIlrath,
512 F.3d 421, 426 (7th Cir. 2008). At sentencing the district court acknowledged that the
guidelines are advisory. Any argument that the district court erroneously thought itself
bound by the guidelines would therefore be frivolous.

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No. 08‐1122 Page 3
Counsel also evaluates whether Jones could argue that the district court premised its
choice of sentence on a factual assumption that lacks an evidentiary basis. We review a
district court’s factual determinations at sentencing for clear error. United States v. Santiago,
495 F.3d 820, 824 (7th Cir. 2007). At sentencing the district court concluded that Jones had
fired the revolver just as the 911 caller said he did. The government produced no witness
who actually saw Jones fire the revolver, and the identity of the 911 caller remains
unknown. Thus, Jones could potentially argue that the district court’s factual conclusion is
unsupported. But that contention would fail because the caller’s statement that Jones was
“shooting a gun” was corroborated by the evidence of a spent casing in the cylinder of the
gun recovered from Jones. Counsel correctly identifies this as a frivolous argument.
Counsel then assesses the overall reasonableness of Jones’s sentence. The district
court calculated Jones’s base offense level as 24, see U.S.S.G. § 2K2.1(a)(2), which combined
with his criminal history category of V yielded an imprisonment range of 92 to 115 months.
The district court then sentenced Jones to the highest possible within‐guidelines
sentence—115 months. A sentence within a properly calculated guidelines range is entitled
to a presumption of reasonableness. See United States v. Anderson, 517 F.3d 953, 966 (7th Cir.
2008); United States. v. Harvey, 516 F.3d 553, 556 (7th Cir. 2008). Here, the district court gave
meaningful consideration to the factors enumerated in 18 U.S.C. § 3553(a) and found that a
sentence at the high end of the guidelines range was appropriate because of Jones’s
significant criminal history and the inherent dangerousness of the crime. Therefore, counsel
correctly concludes that any argument challenging the reasonableness of Jones’s sentence
would be frivolous. See United States v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008).
Finally, counsel addresses whether Jones could argue that he did not receive
effective representation at trial. We have repeatedly stated that any such claim would be
better raised in a petition for habeas corpus, see United States v. Harris, 394 F.3d 543, 557 (7th
Cir. 2005) (collecting cases), and counsel is correct to recognize the perils of making this
argument on direct appeal. Additionally, as counsel points out, it is entirely impractical for
the appellant to argue that his trial counsel was ineffective when trial and appellate counsel
are one and the same—as is the situation here. See United States v. Rezin, 322 F.3d 443, 445
(7th Cir. 2003). Therefore, it is prudent for Jones to forgo raising this argument on direct
appeal. In this case Jones asked that we appoint substitute counsel, which would leave
appellate counsel free to comment on the trial lawyer’s performance. But the point of
Anders is that a defendant has no right to appointed counsel where an appeal is deemed
frivolous. See United States v. Eggen, 984 F.2d 848, 850 (7th Cir. 1993). Nevertheless, neither
Jones nor his counsel has identified any basis for bringing an ineffective‐assistance claim;
any claim Jones might have is best saved for collateral proceedings. See United States v.
Wilson, 481 F.3d 475, 484‐85 (7th Cir. 2007).

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No. 08‐1122 Page 4
Accordingly, we GRANT counselʹs motion to withdraw and DISMISS the appeal.
Jones’s motion for the appointment of substitute counsel is DENIED.

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