USA v. Shea Jones

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10320
Non-Argument Calendar
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D.C. Docket No. 9:11-cr-80122-DTKH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
SHEA JONES,
a.k.a. Black,
Defendant - Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(August 8, 2012)
Before HULL, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
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Shea Jones appeals his 135-month sentence on the grounds that it is both
procedurally and substantively unreasonable. After a thorough review of the
record, we affirm.
Jones was charged in an eleven-count indictment with various drug and
firearm related offenses. He agreed to plead guilty to dealing in a firearm without
a license, in violation of 18 U.S.C. § 922(a)(1)(A) (Count 1); and possession of an
unregistered short-barreled rifle, in violation of 26 U.S.C. § 5861(d) (Count 2).
The remaining nine counts were dismissed.
The charges arose from sales Jones and others made to an undercover
officer between August 2010 and May 2011. During that time, Jones sold over 80
firearms and drugs to the undercover officer. None of the firearm sales occurred1
at the same time as the drug sales.
The probation officer prepared a presentence investigation report (PSI),
grouping the two offenses together and calculating Jones’s sentence under
U.S.S.G. § 2K2.1, the guideline applicable to firearm offenses. The probation
officer included in the calculation increases for various specific offense
characteristics. At issue in this appeal is the application of a 4-level increase
According to the presentence investigation report, Jones sold 84 weapons. Jones1
disputes three of these sales. This discrepancy has no impact on the sentencing calculations. See
U.S.S.G. § 2K2.1(b)(1)(C).
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under § 2K2.1(b)(6)(B). That subsection provides,
If the defendant . . .[u]sed or possessed any firearm or ammunition in
connection with another felony offense; or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to
believe that it would be used or possessed in connection with another
felony offense, increase by 4 levels.
U.S.S.G. § 2K2.1(b)(6)(B). The probation officer concluded that the 4-level
increase applied because Jones sold drugs to the undercover officer while armed
with firearms. Jones’s total adjusted offense level, coupled with a criminal history
category of I, yielded a guideline range of 135 to 168 months’ imprisonment. The
statutory maximum sentence for Count 1 was five years’ imprisonment; the
maximum for Count 2 was ten years’ imprisonment. See 18 U.S.C.
§ 924(a)(1)(D); 26 U.S.C. § 5871.
Jones’s objected to the § 2K2.1(b)(6)(B) increase, arguing that there was no
evidence the guns were in connection with another crime or that he had any reason
to believe they would be used in that manner.
At sentencing, the court clarified that Jones never sold guns and drugs at the
same time, and the court removed from the PSI the statement that Jones had sold
them together. Jones argued that § 2K2.1(b)(6)(B) did not apply because it was
pure speculation that he would have known that the guns would be used in other
criminal activities. The government responded that Jones had reason to believe
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that the guns would be used in other activity, specifically drug trafficking, because
Jones sold the guns and drugs to the same undercover officer. The government
further stated that the manner in which Jones conducted the sales showed that he
knew the guns would be used in other crimes. The government noted that Jones
did not carry the guns out in the open when he delivered them, and some of the
guns had no serial numbers.
The court determined that § 2K2.1(b)(6)(B) applied because Jones would
have known that he sold the guns to a drug dealer, and guns have the ability to
facilitate drug crimes. The court then reviewed the sentencing factors in 18 U.S.C.
§ 3353(a) to fashion the sentence. The court noted that Jones was young and had
no significant criminal history. But the court was concerned over the large
number of guns involved, many of which had been stolen or were untraceable.
Citing the need to protect the public and provide a sentence that would act as a
deterrent, the court stated that a sentence within the guideline range would be
appropriate. The court sentenced Jones to 135 months’ imprisonment, which
consisted of 15 months’ imprisonment on Count 1 and a consecutive 120-month
sentence on Count 2. This is Jones’s appeal.
We review the reasonableness of a sentence under a deferential abuse-of-
discretion standard. Gall v. United States, 552 U.S. 38, 41 (2007). We may “set
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aside a sentence only if we determine, after giving a full measure of deference to
the sentencing judge, that the sentence imposed truly is unreasonable.” United
States v. Irey, 612 F.3d 1160, 1191 (11th Cir. 2010) (en banc), cert. denied, 131
S.Ct. 1813 (2011).
Our review for reasonableness involves two steps. First, we ensure that the
sentence was procedurally reasonable, meaning the district court properly
calculated the guideline range, treated the Guidelines as advisory, considered the
§ 3553(a) factors, did not select a sentence based on clearly erroneous facts, and
adequately explained the chosen sentence. Gall, 552 U.S. at 51. Once we
determine that a sentence is procedurally sound, we examine whether the sentence
was substantively reasonable in light of the totality of the circumstances. Id. The
party who challenges the sentence bears the burden to show it is unreasonable in
light of the record and the § 3553(a) factors. United States v. Tome, 611 F.3d
1371, 1378 (11th Cir.), cert. denied, 131 S.Ct. 674 (2010).
On appeal, Jones argues that the four-level enhancement is improper
because there was insufficient evidence to demonstrate a connection between any
firearm he sold and another offense, which renders his sentence procedurally
unreasonable. He also argues that the sentence imposed was substantively
unreasonable because it was greater than necessary to achieve the goals of 18
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U.S.C. § 3553(a). We address each issue in turn.
A. Procedural reasonableness
We review a district court’s factual findings using a clear error standard.
United States v. Jordi, 418 F.3d 1212, 1214 (11th Cir. 2005). “For a factual
finding to be clearly erroneous, this court, after reviewing all of the evidence, must
be left with a definite and firm conviction that a mistake has been committed.”
United States v. Rodriguez-Lopez, 363 F.3d 1134, 1137 (11th Cir. 2004) (internal
quotation marks omitted). The government bears the burden of establishing by a
preponderance of the evidence any facts necessary to support a sentence
enhancement. United States v. Askew, 193 F.3d 1181, 1183 (11th Cir. 1999).
Section 2K2.1(b)(6)(B) instructs the district court to increase the base
offense level by four points if the defendant “[u]sed or possessed any firearm or
ammunition in connection with another felony offense; or possessed or transferred
any firearm or ammunition with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another felony offense.” U.S.S.G.
§ 2K2.1(b)(6)(B). “In connection with” means “if the firearm or ammunition
facilitated, or had the potential of facilitating, another felony offense.” Id.,
comment. (n. 14(A)).
We have consistently adopted an expansive interpretation of the phrase “in
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connection with.” United States v. Matos-Rodriguez, 188 F.3d 1300, 1308-09
(11th Cir. 1999). Further, we have long acknowledged that “[g]uns and violence
go hand-in-hand with illegal drug operations.” United States v. Hromada, 49 F.3d
685, 689 (11th Cir. 1995); see also United States v. Cruz, 805 F.2d 1464, 1474
(11th Cir. 1986) (“[G]uns are a tool of the drug trade.”).
Here, although the court clarified that Jones never sold guns and drugs at
the same time, there was sufficient evidence to support the application of
§ 2K2.1(b)(6)(B). The record shows that Jones sold the guns and drugs to the
same person, and the quantity of drugs was such that Jones had to know the buyer
was distributing drugs to others. These facts are sufficient for the government to
meet its burden and to establish that the enhancement applied. Accordingly, we
conclude that Jones’s sentence is procedurally reasonable.
B. Substantive Reasonableness
The district court must impose a sentence “sufficient, but not greater than
necessary to comply with the purposes” listed in 18 U.S.C. § 3553(a)(2), including
the need to reflect the seriousness of the offense, promote respect for the law,
provide just punishment for the offense, deter criminal conduct, and protect the
public from the defendant’s future criminal conduct. See 18 U.S.C. § 3553(a)(2).
In imposing a particular sentence, the court must also consider the nature and
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circumstances of the offense, the history and characteristics of the defendant, the
kinds of sentences available, the applicable guideline range, the pertinent policy
statements of the Sentencing Commission, the need to avoid unwarranted
sentencing disparities, and the need to provide restitution to victims. Id.
§ 3553(a)(1), (3)-(7).
Although we do not automatically presume a sentence falling within the
guideline range to be reasonable, we ordinarily expect such a sentence to be
reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir. 2008). A
sentence imposed well below the statutory maximum penalty is another indicator
of a reasonable sentence. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th
Cir. 2008).
Here, we conclude that the sentence imposed was substantively reasonable.
The district court properly considered the guidelines as well as the § 3553(a)
factors when fashioning its sentence. After balancing the mitigating factors, such
as Jones’s youth and lack of significant criminal history, against the seriousness of
the offense, the number of guns involved, the need to protect society, and the
deterrent effect, the court imposed a sentence at the low end of the applicable
guideline range. Moreover, the total sentence imposed was well below the total
maximum sentence of 180 months’ imprisonment. Accordingly, we affirm the
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sentence imposed as reasonable.
AFFIRMED.
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