United States of America v. Joseph Jones, Also Known As Jo Jo

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2013 Decided March 14, 2014
No. 08-3033
UNITED STATES OF AMERICA,
APPELLEE
v.
JOSEPH JONES, ALSO KNOWN AS JO JO,
APPELLANT
Consolidated with 10-3108, 11-3031
Appeals from the United States District Court
for the District of Columbia
(No. 1:05-cr-00100-16)
Stephen C. Leckar, appointed by the court, argued the
cause and filed the joint brief for appellant Antwuan Ball.
Anthony D. Martin, appointed by the court, argued the
cause and filed the joint brief for appellant Joseph Jones.
Jonathan Zucker, appointed by the court, argued the
cause and filed the joint brief for appellant Desmond
Thurston.

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Jeffrey T. Green, Timothy O’Toole, and Arthur B. Spitzer
were on the brief for amici curiae The National Association
of Criminal Defense Lawyers, et al. in support of appellants.
Stratton C. Strand, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman, Assistant
U.S. Attorney.
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: Following a lengthy trial, a jury
convicted Joseph Jones, Desmond Thurston, and Antwuan
Ball of distributing small quantities of crack cocaine, but
acquitted them of conspiracy to distribute drugs. At
sentencing, the district court nevertheless found that all three
defendants had engaged in the charged conspiracy and, based
largely on that finding, sentenced them to terms of
imprisonment ranging from fifteen to nearly nineteen years.
They now appeal, arguing that their sentences were
procedurally and substantively unreasonable and were
unconstitutionally predicated upon acquitted conduct.
Thurston and Ball also argue that the district court
impermissibly delayed sentencing them. Finding no merit in
appellants’ arguments, we affirm.
I
In 2005, a grand jury charged appellants and fifteen
named coconspirators with narcotics and racketeering
offenses arising from their alleged membership in the
Congress Park Crew, a loose-knit gang that ran a market for

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crack cocaine in the Congress Park neighborhood of
Southeast Washington, D.C., for nearly thirteen years. After
eleven of the coconspirators pled guilty and one was
convicted at a trial of his own, appellants proceeded to their
trial in February 2007 on charges that included crack
distribution and participation in a crack distribution
conspiracy.1 The government’s evidence included recordings
of appellants engaging in sales of crack and testimony from
several cooperating witnesses, including members of the
alleged conspiracy and individuals who had purchased crack
from appellants. On November 28, 2007, the jury returned its
verdict, acquitting appellants of the conspiracy charge but
convicting them of distribution. Based on appellants’ criminal
records, Jones’s conviction carried a maximum sentence of
thirty years’ imprisonment and Thurston’s a maximum of
twenty years. Because of the larger quantity of crack
involved, Ball’s conviction carried a minimum of five years
and maximum of forty years. See 21 U.S.C.
§ 841(b)(1)(B)(iii), (C).
At Jones’s sentencing in May 2008, the district court
found by a preponderance of the evidence that his crimes
were part of a common scheme to distribute crack in Congress
Park and that he could foresee sales of over 500 grams of
crack by his coconspirators. Based on these findings, the
district court determined that the U.S. Sentencing Guidelines
recommended a sentence of 324 to 405 months’
imprisonment. The court then imposed an actual sentence of
1 The government also charged Jones and Ball with various
violent crimes and all three appellants with participation in a
racketeer influenced corrupt organization. Those charges are not
relevant to this appeal, however, because the jury acquitted
appellants of those charges, and the district court did not rely on the
alleged conduct underlying them at sentencing.

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only 180 months, varying below the Guidelines due to
concerns about the overall severity of punishments for crack
offenses and considerations related to Jones’s background and
crimes more particularly.
Thurston was sentenced on October 29, 2010, some 35
months after the jury’s verdict, and Ball was sentenced on
March 17, 2011, some 40 months after. Although the district
court originally planned to sentence Thurston and Ball around
the same time as Jones, it postponed their sentencing hearings
after a co-defendant, who is not a party to this appeal, filed a
post-trial motion that the district court believed might affect
their convictions but that ultimately did not. That motion,
which was filed in March 2008, was not resolved until July
2010. During that period, Thurston and Ball repeatedly
requested sentencing.
At sentencing, the district court found that their crimes,
like Jones’s, were part of a conspiracy to distribute crack in
Congress Park and that they could foresee that their
coconspirators would distribute at least one-and-a-half
kilograms of crack. Based primarily on those findings, the
district court calculated Thurston’s Guidelines range as 262 to
327 months and Ball’s as 292 to 365 months. Varying below
the Guidelines again, the district court sentenced Thurston to
194 months and Ball to 225 months. The district court
justified these downward variances on grounds similar to
those given at Jones’s sentencing. The district court also
explained that it was reducing Thurston’s sentence by another
twelve months, and Ball’s by another fifteen, to remedy any
prejudice from the delays in their sentencings.
Appellants timely appealed their sentences, and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

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II
We use a two-step analysis to review sentences. See Gall
v. United States, 552 U.S. 38, 51 (2007). At the first step, we
ensure that the district court committed no significant
procedural error in determining the Guidelines ranges, such as
calculating them based on factual findings that are clearly
erroneous. See United States v. Settles, 530 F.3d 920, 923
(D.C. Cir. 2008). We review purely legal questions de novo
and factual findings for clear error, and we give “due
deference” to the district court’s application of the Guidelines
to facts. United States v. Henry, 557 F.3d 642, 645 (D.C. Cir.
2009). At the second step, we consider the substantive
reasonableness of the sentences in light of the totality of the
circumstances, reversing only if we conclude that the district
court abused its discretion. See Gall, 552 U.S. at 51; United
States v. Gardellini, 545 F.3d 1089, 1093 (D.C. Cir. 2008).
A
Appellants challenge the procedural reasonableness of
their sentences principally on the ground that it was clear
error for the district court to find that they had formed an
agreement with members of the Congress Park Crew to
distribute crack. See United States v. Graham, 83 F.3d 1466,
1471 (D.C. Cir. 1996) (“The essential element of conspiracy
is an agreement with at least one other person to violate the
law.”). Under the clear error standard, we must affirm the
district court’s findings unless we are “‘left with the definite
and firm conviction that a mistake has been committed.’”
United States v. Brockenborrugh, 575 F.3d 726, 738 (D.C.
Cir. 2009) (quoting United States v. U.S. Gypsum Co., 333
U.S. 364, 395 (1948)); see also United States v. Mohammed,
693 F.3d 192, 202 (D.C. Cir. 2012) (holding that a district
court’s factual findings were not clearly erroneous where the

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inferences it drew from evidence were “plausible”). We give
especially strong deference to credibility determinations, see
United States v. Delaney, 651 F.3d 15, 18 (D.C. Cir. 2011),
because the district court has a “unique opportunity ‘to
evaluate the credibility of witnesses and to weigh the
evidence,’” Brockenborrugh, 575 F.3d at 738 (quoting
Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855
(1982)).
Appellants argue that the district court should not have
credited the testimony of the cooperators, whom they describe
as a rogues’ gallery unworthy of credence. Appellants catalog
evidence that the cooperators repeatedly deceived authorities,
perjured themselves, framed loved ones, abused drugs,
breached plea agreements, and took money from the
government. But while such facts may undercut the
cooperators’ credibility generally, they do not establish that it
was implausible for the district court to credit particular
aspects of their testimony, especially where, as here, the
cooperators offered mutually corroborative accounts that
appellants associated with named conspirators, sold crack in
Congress Park during the period of the conspiracy, shared
sales proceeds with other conspirators, and protected their
control of the Congress Park drug trade against outside
competitors. Cf. Graham, 83 F.3d at 1471-72 (rejecting
sufficiency of the evidence challenge to narcotics conspiracy
conviction where the government’s evidence consisted of
testimony from six cooperating drug dealers, all of whom
vouched for the existence of a conspiracy and testified that the
defendants were part of it). Indeed, for each of these critical
facts concerning appellants’ involvement in the conspiracy,
the district court relied only on testimony corroborated by at
least one, and usually several, other witnesses.

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Furthermore, the district court was well aware of the
cooperators’ credibility issues. For instance, the court
declined to impose an obstruction-of-justice enhancement on
Ball based solely on one cooperator’s “uncorroborated
report.” At the same time, the court explained that even giving
“full effect” to appellants’ impeachment of several
cooperators would “not undermine the mutually corroborative
evidence[]” establishing appellants’ involvement in the
conspiracy. Given the highly corroborated accounts of
appellants’ conspiratorial conduct and the district court’s
evident care in weighing the evidence, it was not clearly
erroneous to find that appellants had conspired to distribute
crack in Congress Park.
Nor was it clearly erroneous for the district court to find
that the evidence established a single conspiracy—a finding
appellants challenge in hopes of reducing the amount of crack
sales attributable to them. In determining whether evidence
establishes single or multiple conspiracies, we look for the
presence of a number of factors, including, in descending
order of importance, a common goal, interdependence among
alleged participants, and overlapping membership. See
Graham, 83 F.3d at 1471; United States v. Tarantino, 846
F.2d 1384, 1393 (D.C. Cir. 1988) (per curiam). Appellants
argue that the cooperators’ testimony established, at most,
multiple drug cliques operating at different periods and
comprising different members. But the evidence cited by the
district court at sentencing establishes all three attributes of a
single conspiracy: a common goal of selling crack for profit in
Congress Park; interdependence in the forms of shared sales
proceeds and the protection of turf against encroachment by
outsiders; and overlap in membership both across time and
among the different cliques. Given that we have found a
single drug conspiracy even where the conspirators did not
share profits with one another and “sometimes competed with

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each other for sales,” Graham, 83 F.3d at 1471, the degree of
interdependence and overlap supports the district court’s
finding that appellants engaged in a single conspiracy with the
other members of the Congress Park Crew.
Appellants’ remaining challenges to the procedural
reasonableness of their sentences need be addressed only
briefly. They assert that the district court failed to show that
the acts of coconspirators attributed to them met the
Guidelines’ definition of “relevant conduct.” See U.S.S.G.
§ 1B1.3 (instructing courts to consider “relevant conduct” in
determining Guidelines ranges). But “relevant conduct”
includes acts “that were part of the same course of conduct or
common scheme or plan as the offense of conviction,” id.
§ 1B1.3(a)(2), and here, the district court specifically found
that appellants’ crack distribution offenses were part of a
“common scheme” with Congress Park Crew members, a
finding that we have already determined was not clearly
erroneous. Appellants also challenge the district court’s
reliance on hearsay implicating them in the Congress Park
Crew’s drug dealing, but such reliance poses no legal
problem. Clear precedent permits hearsay to be used in
sentencing decisions, United States v. Bras, 483 F.3d 103, 108
(D.C. Cir. 2007); see also 18 U.S.C. § 3661, and the
testimony cited by the district court, which came from guilty
plea proffers, was but one piece of a larger mosaic of
evidence establishing appellants’ participation in a drug
conspiracy.
B
Appellants challenge the substantive reasonableness of
their sentences solely on the ground that their sentences far
exceeded the norm for their crimes. But the average and
median figures appellants cite reveal neither the full range of

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sentences meted out for their crimes nor how differences in
individual levels of culpability affect variations in sentencing.
Appellants’ Guidelines ranges, by contrast, reflect
individualized assessments of their conduct, and those ranges,
which were properly calculated, called for sentences
significantly higher than those appellants actually received.
Because it is well established that sentences that fall within
the Guidelines range are entitled to a presumption of
reasonableness, see United States v. Fields, 699 F.3d 518, 524
(D.C. Cir. 2012) (citing United States v. Dorcely, 454 F.3d
366, 376 (D.C. Cir. 2006)), it is “hard to imagine” how we
could find appellants’ below-Guidelines sentences to be
unreasonably high, United States v. Mejia, 597 F.3d 1329,
1343 (D.C. Cir. 2010); see also United States v. George, 403
F.3d 470, 473 (7th Cir. 2005) (“It is hard to conceive of
below-range sentences that would be unreasonably high.”).
Appellants fail to show that their case is exceptional, and we
reject their challenges.
III
Appellants also argue that their sentences violated their
Sixth Amendment right to trial by jury because they were
based, in part, on appellants’ supposed involvement in the
very conspiracy that the jury acquitted them of participating
in. Take their acquitted conduct out of the calculation, they
contend, and their Guidelines ranges would have been
between 27 and 71 months, a mere fraction of the sentences
they received.
Although we understand why appellants find sentencing
based on acquitted conduct unfair, binding precedent of this
court establishes that the practice does not violate the Sixth
Amendment when the conduct is established by a
preponderance of the evidence and the sentence does not

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exceed the statutory maximum for the crime. See United
States v. Settles, 530 F.3d 920, 923-24 (D.C. Cir. 2008)
(citing United States v. Watts, 519 U.S. 148, 156-57 (1997)
(per curiam)); Dorcely, 454 F.3d at 371 (“[A] sentencing
court may base a sentence on acquitted conduct without
offending the defendant’s Sixth Amendment right to trial by
jury.”). This is true even when consideration of the acquitted
conduct multiplies a defendant’s sentence severalfold. See
Dorcely, 454 F.3d at 370-71. Appellants, in effect, ask us to
reconsider Settles and Dorcely. But not only do those
decisions bind us, see LaShawn A. v. Barry, 87 F.3d 1389,
1395 (D.C. Cir. 1996) (en banc), no subsequent decision by
the Supreme Court or another circuit calls their validity into
question. Cf. FED. R. APP. P. 35(b)(1) (suggesting contrary
decisions by the Supreme Court or by another court of appeals
as grounds for en banc review). Indeed, since the Supreme
Court struck down the mandatory federal sentencing
guidelines and freed judges “to exercise broad discretion in
imposing a sentence within a statutory range,” United States
v. Booker, 543 U.S. 220, 233, 243-44 (2005), every numbered
circuit has addressed the constitutionality of sentencing based
on acquitted conduct, and each one has reached the same
conclusion reached by this court. See United States v. White,
551 F.3d 381, 384-86 (6th Cir. 2008) (en banc); United States
v. Mercado, 474 F.3d 654, 656-58 (9th Cir. 2007) (collecting
cases from every numbered circuit but the Sixth).
We also lack any basis to reconsider the settled rule that
enhancing a sentence within the statutory range based on facts
found by the judge, as opposed to the jury, does not violate
the Sixth Amendment. See Settles, 530 F.3d at 923; Bras, 483
F.3d at 107. Appellants’ challenge to this practice relies
principally on Justice Scalia’s concurrence in Rita v. United
States, 551 U.S. 338 (2007), which suggested that defendants
should be permitted to challenge sentences that depend on

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judge-found facts to survive substantive reasonableness
review. See Rita, 551 U.S. at 375 (Scalia, J., concurring)
(reading the majority’s opinion as not “rul[ing] out . . . Sixth
Amendment challenges to sentences that would not have been
upheld as reasonable on the facts encompassed by the jury
verdict or guilty plea”); see also Gall v. United States, 552
U.S. 38, 60 (2007) (Scalia, J., concurring).
Whatever the merits of Justice Scalia’s argument, it is not
the law. See Rita, 551 U.S. at 352 (majority opinion) (“This
Court’s Sixth Amendment cases do not automatically forbid a
sentencing court to take account of factual matters not
determined by a jury and to increase the sentence in
consequence.”). No Supreme Court majority has ever
recognized the validity of such challenges, and among the
courts of appeals the consensus is clearer still: every circuit to
have considered such challenges has rejected them as
inconsistent, in principle, with the post-Booker rule that “[f]or
Sixth Amendment purposes, the relevant upper sentencing
limit established by the jury’s finding of guilt is . . . the
statutory maximum, not the advisory Guidelines maximum
corresponding to the base offense level.” Settles, 530 F.3d at
923; see United States v. Norman, 465 F. App’x 110, 120-21
(3d Cir. 2012) (collecting cases). And though our circuit has
not specifically considered such challenges, our precedent is
equally categorical: judicial fact-finding does “not implicate
the Sixth Amendment even if it yield[s] a sentence above that
based on a plea or verdict alone.” Bras, 483 F.3d at 107
(internal quotation marks omitted). Accordingly, we must
reject appellants’ Sixth Amendment claims. The district court
did not violate their right to trial by jury by sentencing them
within the statutory range based on acquitted conduct that it
found by a preponderance of the evidence.

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IV
Finally, Thurston and Ball argue that the district court
violated their assumed right to speedy sentencing and ask that
their sentences be reduced accordingly. Both the Supreme
Court and this circuit have assumed without deciding that the
Sixth Amendment protects the right to speedy sentencing. See
Pollard v. United States, 352 U.S. 354, 361 (1957); United
States v. Yelverton, 197 F.3d 531, 533 (D.C. Cir. 1999). We
determine whether such a right was violated by balancing the
four factors enumerated in Barker v. Wingo: the “‘[l]ength of
[] delay, the reason for the delay, the defendant’s assertion of
his right, and prejudice to the defendant.’” United States v.
Gibson, 353 F.3d 21, 27 (D.C. Cir. 2003) (first alteration in
original) (quoting Barker, 407 U.S. 514, 530 (1972)).2
Here, however, we need not decide whether Thurston and
Ball suffered a constitutional injury because we find that even
if they did, the sentence reductions they received were
adequate remedies. In Yelverton, we held that a reduction of
“several months” was sufficient to remedy a 33-month delay
where the defendant “ma[de] no claim that the delay affected
2 Jones does not assert a speedy sentencing claim but suggests
that the delays associated with Thurston and Ball’s sentencings
denied him the right to a speedy appeal. We decline to consider this
issue, however, because Jones offers only “bare-bones arguments”
unsupported by any citations to legal authority. Wash. Legal Clinic
for the Homeless v. Barry, 107 F.3d 32, 39 (D.C. Cir. 1997); see
also FED. R. APP. P. 28(a)(8)(A) (requiring an appellant’s brief to
contain “appellant’s contentions and the reasons for them, with
citations to the authorities . . . on which the appellant relies”); Ry.
Labor Execs.’ Ass’n v. U.S. R.R. Ret. Bd., 749 F.2d 856, 859 n.6
(D.C. Cir. 1984) (declining to resolve issue “on the basis of briefing
which consisted of only three sentences . . . and no discussion of the
relevant statutory text, legislative history, or relevant case law”).

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his ability to present his position on his sentence or adversely
affected the sentence he received.” Yelverton, 197 F.3d at
538-39. Thurston and Ball similarly conceded at oral
argument that the delay probably had little to no impact on the
district court’s conspiracy finding, which drove the high
sentences they received. Oral Arg. Recording at 47:45-48:18.
Accordingly, we find that the twelve- and fifteen-month
reductions that Thurston and Ball respectively received were
adequate remedies for any speedy sentencing violation they
may have suffered.
V
For the foregoing reasons, we affirm appellants’
sentences.

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