United States of America v. Nathaniel Jones, Iii

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4489
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
NATHANIEL JONES, III,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. Frank W. Bullock, Jr.,
District Judge. (CR-02-155)
Argued: March 17, 2006 Decided: May 16, 2006
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Vacated and remanded by unpublished opinion. Judge Gregory wrote
the majority opinion, in which Judge Duncan joined. Senior Judge
Hamilton wrote a separate opinion concurring in the judgment in
part and dissenting in part.
ARGUED: Lisa S. Costner, Winston-Salem, North Carolina, for
Appellant. Lawrence Patrick Auld, OFFICE OF THE UNITED STATES
ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Anna
Mills Wagoner, United States Attorney, Paul A. Weinman, Assistant
United States Attorney, Greensboro, North Carolina, for Appellee.

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2
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).

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GREGORY, Circuit Judge:
Nathaniel Jones, III pleaded guilty to the use of a firearm
during carjacking, in violation of 18 U.S.C. § 924(1)(A)(ii) & (2),
and armed bank robbery, in violation of 18 U.S.C. § 2113(d). On
appeal, Jones asserts that the district court committed plain error
under United States v. Booker, 543 U.S. 220 (2005), by imposing
three sentencing enhancements related to the armed bank robbery
charge. Because we find that the sentence violated the Sixth
Amendment based on the third enhancement for obstruction of
justice, we vacate and remand for resentencing.
I.
Jones and his co-defendant, Carlos Antonio Williams, were
charged by a grand jury in a second superseding indictment, which
asserted six counts related to carjacking and bank robbery. Jones
entered into a plea agreement only with respect to Count Three,
which alleged that defendants used and carried a firearm in
relation to carjacking, and Count Five, which alleged that
defendants committed armed bank robbery. The government also
submitted a factual basis in support of the plea, which detailed
the carjacking and armed bank robbery.
According to the factual basis, Jones met with Komikka
Gregory, Rashime Gardner, and Williams on August 20, 2000, to
discuss plans to rob a bank. After deciding on a particular branch

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of Bank of America, Jones gave Gregory the keys to his rental truck
and told the others to steal a car to use in the robbery. Gregory,
Gardner, and Williams subsequently drove around and approached a
woman at a car wash. Gardner directed the woman to exit her car,
and Williams brandished a gun. After the woman got out of the car,
Gardner and Williams drove the car to an area near the designated
bank. Gregory, Gardner, and Williams then drove Jones’s truck to
Jones’s residence.
The factual basis further asserted that the next morning,
Gregory, Gardner, Williams, and Jones drove the truck to where the
stolen car had been parked, parked the truck, and drove the stolen
car to the bank. At that point, Jones, Gardner, and Williams
entered the bank, with Jones and Williams each armed with handguns.
Williams “jumped over the teller counter and brandished his handgun
at the tellers.” J.A. 36. Gardner took money from several
tellers. When two customers entered the bank, Jones brandished his
handgun and ordered them to the floor. Upon exiting the bank, the
three men got into the stolen car, which was being driven by
Gregory, and drove to where the truck had been parked. The four
abandoned the stolen car and drove the truck to Jones’s residence,
where they split $5,901 in robbery proceeds.
At the plea hearing, the district court discussed the
proffered factual basis with the parties. At that time, Jones’s
counsel objected to a portion of the factual basis that provided

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1The PSR calculated a Guidelines range only for Count Five,
because the Guidelines sentence for Count Three was determined by
statute. J.A. 124; § 2K2.4 (stating that the Guidelines sentence
for violating 18 U.S.C. § 924(c) is “the minimum term of
imprisonment required by the statute”). The relevant criminal
statute, 18 U.S.C. § 924(c)(1), requires a minimum sentence of
seven years, to run consecutively with any other term of
imprisonment.
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that Jones “told” the others to steal a car to use in the robbery.
J.A. 34. Counsel argued that “there was no express telling, but
the general factual basis is correct.” J.A. 59. When the district
court asked whether “generally you and Mr. Jones are in agreement
with the factual basis,” Jones’s counsel replied “Yes, sir, Your
Honor.” Id.
The probation office subsequently prepared a presentence
investigation report (“PSR”) applying the 2002 edition of the
United States Sentencing Guidelines (“Guidelines”). With respect
to the armed bank robbery charge in Count Five, the PSR calculated
a base offense level of twenty under § 2B3.1.1 The PSR added (1)
a two-level enhancement for stealing property from a financial
institution under § 2B3.1(b)(1); (2) a six-level enhancement for
using a firearm under § 2B3.1(b)(2)(B); and (3) a two-level
enhancement because the armed bank robbery involved carjacking
under § 2B3.1(b)(5). The PSR further recommended a two-level
enhancement for obstruction of justice pursuant to § 3C1.1 based on
an intercepted letter Jones had apparently written to Gardner, who
was then an inmate at Rowan Correctional Center, urging him to

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“tell the police me and Carlos didn’t have anything to do with it”
or to “say nothing.” J.A. 123. Ultimately, with a total offense
level of thirty-two and a criminal history category of I, the PSR
recommended a Guidelines range of 121 to 151 months’ imprisonment
for Count Five. J.A. 132. Jones did not file any objections to
the PSR.
At the joint sentencing hearing for Jones and Williams,
Williams’s counsel first asserted that “[o]ur objection was not to
any of the factual content of the presentence report, but rather
was to the guideline application” regarding the enhancement for
using a firearm during the robbery under § 2B3.1(b)(2)(B). J.A.
71. In addition, Williams’s counsel stated that “I did not
understand from the government’s response that the government had
any objection to the facts as set forth in the presentence report.”
Id. Although Jones had not raised a similar objection, the
district court announced that it would consider the issue with
respect to both Williams and Jones.
Immediately before the government began to present its
evidence, Williams’s counsel objected to “the government presenting
evidence that will contradict any aspect of the facts set out in
the presentence report without having time to file an objection to
them.” J.A. 74. Jones’s counsel joined this objection. J.A. 75.
After the district court acknowledged these objections, the
government presented its evidence.

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After hearing evidence regarding the circumstances of the
actual bank robbery, the district court determined that Williams
and Jones had brandished, and not used (which carried a higher
enhancement), a firearm during the robbery. Accordingly, the
district court adjusted Jones’s recommended Guidelines range from
a total offense level of thirty-two to thirty-one, thereby yielding
a Guidelines range of 108 to 135 months’ imprisonment.
When the district court asked Jones’s counsel whether there
were any other issues, counsel responded, “we have no formal
objections filed.” J.A. 90. Counsel did, however, request a
reduction for acceptance of responsibility. The district court
remarked that imposing a departure based on acceptance of
responsibility appeared to be inconsistent with Jones’s upward
enhancement for obstruction of justice. In response, counsel
stated, “I believe the letters they were using for the [obstruction
of justice] enhancement were done at least at a point in time prior
to this matter being brought before the federal judiciary . . . .”
J.A. 90-91. The district court nevertheless rejected the proposed
reduction for acceptance of responsibility.
The district court thus imposed a sentence of 120 months with
respect to Count Five, and a consecutive sentence of 84 months with
respect to Count Three. Jones now appeals his sentence.

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II.
A.
We review the sentencing errors identified in this appeal for
plain error because they were never presented to the district
court. United States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005)
(citing Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993)). To establish plain error, the defendant must
“show that an error occurred, that the error was plain, and that
the error affected his substantial rights.” United States v.
White, 405 F.3d 208, 215 (4th Cir.) (citing Olano, 507 U.S. at
732), cert. denied, 125 S. Ct. 668 (2005); United States v. Evans,
405 F.3d 208, 215 (4th Cir. 2005). Assuming that the defendant
satisfies this three-part standard, “correction of the error
remains within our discretion, which we should not exercise . . .
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” White, 405 F.3d at
215 (internal quotation marks and citations omitted).
B.
In Booker, the Supreme Court held that a Sixth Amendment
violation arises where the district court, acting pursuant to the
Sentencing Reform Act and the Guidelines, imposes a sentence that
is greater than the maximum authorized by the facts found by the
jury. See Booker, 543 U.S. at 244. On appeal, Jones contends that

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his sentence violates Booker based on three distinct enhancements
that increased his Guidelines range: (1) a five-level enhancement
for brandishing a firearm under § 2B3.1(b)(2)(C); (2) a two-level
enhancement because the bank robbery involved carjacking under §
2B3.1(b)(5); and (3) a two-level enhancement for obstructing
justice under § 3C1.1. In response, the government asserts that
each of the enhancements is supported either by the guilty plea or
the admitted facts.
We easily conclude that Jones admitted the facts supporting
the first two enhancements. First, Jones’s guilty plea to Count
Five, which charged him with using a handgun during the robbery,
constituted an admission of the facts underlying the firearm
brandishing enhancement. Second, counsel’s representation that
“the general factual basis is correct,” J.A. 59, was the functional
equivalent of adopting the factual basis, which set forth the
predicate for the carjacking enhancement. See United States v.
Buonocore, 416 F.3d 1124, 1134 (10th Cir. 2005) (defense counsel’s
assertion that the drug quantities set forth in the PSR were
“exactly correct” constituted an admission of those quantities for
the purposes of sentencing). Accordingly, neither of these
enhancements required judicial factfinding in violation of the
Sixth Amendment.
The third enhancement for obstruction of justice, however,
rested solely on facts contained in the PSR, to which Jones did not

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2 It was Williams’s counsel who actually expressed the
objection “to the government presenting evidence that will
contradict any aspect of the facts set out in the presentence
report without having time to file an objection to them.” J.A. 74.
However, Jones’s counsel explicitly stated, “Your Honor, we would
also make that same objection.” J.A. 75.
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file formal objections. During the sentencing hearing, counsel
reiterated that “we have no formal objections filed” in declining
to object to the PSR, J.A. 90, and also objected to “the government
presenting evidence that will contradict any aspect of the facts
set out in the presentence report without having time to file an
objection to them,” J.A. 74 (emphasis added). 2 The issue,
therefore, is whether these statements were admissions of the facts
contained in the PSR.
In assessing whether a defendant’s statement qualifies as an
admission for Booker purposes, this Circuit recently recognized
that “verbalizations necessarily fall along a spectrum.” United
States v. Revels, 05-4142, slip-op. at 5 (4th Cir. May 1, 2006).
Revels thus explains that statements such as “I admit” settle at
one end as clear admissions for the purposes of the Sixth
Amendment. Id. At the opposite end of the spectrum is silence.
Id. at 6; see United States v. Milam, 2006 WL 871287, at *4 (4th
Cir. Apr. 6, 2006) (“To presume, infer, or deem a fact admitted
because the defendant has remained silent, however, is contrary to
the Sixth Amendment.” (internal citations omitted)) (holding that

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the defendant’s silence in failing to object to the PSR did not
constitute an admission of the facts contained in the PSR).
Guided by Revels, we conclude that counsel’s statement that
“we have no formal objections filed” in declining to object to the
PSR is closer to silence. See Revels, slip-op. at 6 (holding that
the defendant did not admit the facts in the PSR when he declined
to object to the PSR by stating “No, sir” and stated an objection
under Blakely v. Washington, 542 U.S. 296 (2004)). Indeed, we
perceive no material difference between stating “no” and stating
“we have no formal objections filed” in response to a district
court’s queries regarding outstanding objections to the PSR. Id.
at 6 n.1 (“To the extent that it is reasonable to hold the
defendant here to his ‘No, sir,’ it would have been no less
reasonable to hold the defendant in Milam to his silence. But of
course Milam did not so hold.”).
Similarly, counsel’s subsequent objection to the government’s
presentation of any surprise evidence contradicting the PSR’s
findings is far from being an express admission of the facts
contained in the PSR. In substance, counsel’s statement was a
preemptive measure to prevent the government from inserting any
eleventh-hour factual allegations without providing Jones with an
opportunity to respond. It is significant to note that Jones did
not seek to completely preclude the government from presenting new
evidence. Rather, counsel merely preserved his right to seek “time

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to file an objection” to belated allegations if the government
chose to present such evidence at the sentencing hearing. J.A. 74
(emphasis added). We therefore decline to construe counsel’s
objection as an admission of the facts contained in the PSR.
Without any support in the guilty plea, factual basis, or
admissions made by Jones, the enhancement for obstruction of
justice thus rested solely on judicial factfinding. Accordingly,
this enhancement violated the Sixth Amendment. Without this
enhancement, Jones would have been subject to a sentencing range of
87 to 108 months’ imprisonment for Count Five (and a statutory
consecutive term of imprisonment of 84 months for Count Three).
Here, however, the district court sentenced Jones to a term of
imprisonment of 120 months with respect to Count Five (and a term
of imprisonment of 84 months with respect to Count Three).
Accordingly, we take judicial notice of the plain error under
Hughes, vacate the sentence, and remand for resentencing. Hughes,
401 F.3d at 555-56.
VACATED AND REMANDED

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HAMILTON, Senior Circuit Judge, concurring in the judgment in part
and dissenting in part:
For the reasons stated in the majority opinion, I agree that
Jones’s challenges to the brandishing and carjacking enhancements
lack merit. However, the majority’s reasoning behind its decision
to vacate the obstruction enhancement is hopelessly flawed and, for
this reason, I dissent from the majority’s decision to remand for
resentencing.
It is undisputed that the PSR sets forth sufficient facts
supporting the obstruction of justice enhancement. At sentencing,
Jones affirmatively indicated that he had no objections to the
factual contents of the PSR. He also objected to the government’s
presentation of any evidence that would have contradicted “any
aspect of the facts set out” in the PSR.
In United States v. Milam, No. 04-4224, 2006 WL 871287 (4th
Cir. April 6, 2006), we held that a defendant’s failure to object
to a PSR’s factual findings does not constitute an admission of
those facts for purposes of the Sixth Amendment. Id. at *5. To
hold otherwise, we concluded, would allow the government to obtain
a conviction without proving all of a crime’s elements beyond a
reasonable doubt. Id.
In United States v. Revels, No. 05-4142 (4th Cir. May 1,
2006), we concluded that the defendant’s statement “No, sir” in
response to the district court’s inquiry as to whether he had any
objections to the PSR was not an admission for purposes of the

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Sixth Amendment. Slip op. at 5. In so concluding, we observed
that the defendant’s case in Revels fell “somewhere in the middle
of the spectrum” between Milam’s silence and a defendant’s
statement such as “‘I admit.’” Id. at 4.
In its opinion, the majority concludes that Jones’s case is
governed by Milam and Revels. However, this case concerns much
more than a simple failure to object as in Milam or a simple “No,
sir” as in Revels. Indeed, if all Jones did was simply remain
silent and/or indicate that he had no objections to the PSR’s
factual findings, then I would agree with the majority that this
case is controlled by Milam and Revels. Critically, though, Jones
objected to any actions by the government which would have cast
doubt on the factual accuracy of the PSR. By taking affirmative
steps to protect the sanctity of the PSR’s factual findings, Jones
unquestionably admitted those facts for Booker purposes.
The majority downplays the significance of Jones’s objection
to the government’s presentation of facts that would contradict the
PSR’s factual findings, essentially describing the objection as a
sound trial strategy preventing Jones from being ambushed by the
government. However, Jones’s objection cannot be written off so
easily. He objected only to a factual presentation that would have
contradicted the factual allegations of the PSR. By taking the
affirmative step to prevent the PSR’s facts from being contradicted
(as opposed to supplemented), he has gone well beyond the mere “No,

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sir” that was present in Revels, moving the case from “somewhere in
the middle of the spectrum” to the “‘I admit’” realm. Id. at 4-5.
For these reasons, I dissent from the majority’s decision to
remand for resentencing.

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