USCA11 Case: 21-13851 Date Filed: 07/08/2022 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13851
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN ASHLEY JONES, JR.,
a.k.a. John Jones,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 2:21-cr-00030-TFM-N-1
____________________
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2 Opinion of the Court 21-13851
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and
BRANCH, Circuit Judges.
PER CURIAM:
John Jones, Jr. appeals his sentence of 112 months of impris-
onment for possessing a firearm as a felon.
18 U.S.C. § 922(g)(1).
Jones argues that his sentence is procedurally unreasonable be-
cause the district court failed to sequentially consider whether the
next highest criminal history category was appropriate. See United
States Sentencing Guidelines Manual § 4A1.3(a)(4)(B) (Nov. 2018).
Jones also argues that his sentence is substantively unreasonable.
We affirm.
Jones pleaded guilty to the firearm charge in exchange for a
recommendation from the government for a sentence at the low
end of his guideline range. Jones’s presentence investigation report
described six prior convictions involving firearms. Jones had con-
victions in 2004 for discharging a firearm into a building or vehicle
and for second-degree assault, in 2010 for discharging a firearm into
a building or vehicle and for manslaughter, and in 2013 for pos-
sessing a controlled substance while in possession of a pistol and
possessing a firearm as a felon. Jones had a criminal history score
of 15, and two points were added for committing his offense while
on supervised release. With a criminal history score of 17 and a
criminal history category of VI, Jones faced an advisory guideline
range of 51 to 63 months of imprisonment see U.S.S.G. ch. 5, pt. A,
and a statutory penalty of 10 years of imprisonment, 18 U.S.C.
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21-13851 Opinion of the Court 3
§ 924(a)(2). The presentence report classified Jones’s prior convic-
tion for second-degree assault as a crime of violence. And the re-
port provided that,”[i]f the plea colloquy is obtained for [Jones’s]
Manslaughter conviction . . ., and it is determined that the convic-
tion was for Voluntary Manslaughter, then [Jones] will have two
prior convictions for a crime of violence” and his “base offense level
would become 24.”
Based on the presentence report, the district court post-
poned Jones’s sentencing hearing pending a submission of “brief[s]
on the issue of upward departure” from Jones and the government.
Jones argued that his criminal history score accounted for the seri-
ousness of his preceding conduct, which he classified as reckless in-
stead of intentional. He also argued that he had to carry a gun in
self-defense in Selma, Alabama. The government responded that
Jones’s criminal history category failed to adequately represent the
seriousness of his criminal history, as evidenced by his admission
in pleading guilty to second-degree assault for using a firearm “with
intent to cause physical injury” to his victim and the record of his
manslaughter crime “support[ing] the conclusion that he was the
antagonist in th[e] matter.” The government attached to its re-
sponse records of Jones’s prior convictions.
At sentencing, the district court “adopt[ed] the presentence
report with the specific factual findings that the total offense level
is 17, the criminal history category is VI, [and] the guidelines range
is 51 to 63 months . . . .”After repeating the arguments made in his
brief, Jones requested a departure downward to a sentence of 40
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4 Opinion of the Court 21-13851
months of imprisonment or a sentence at the low end of his guide-
line range. Jones acknowledged that he “made some bad deci-
sions,” asked for a ”lenient” sentence within his guideline range,
and stated he would not return to Selma “and put myself in the
situation to be around people with firearms or anything of that na-
ture.” The district court expressed concern that Jones kept “going
back” to prison, did not “buy [Jones’s] argument that . . . Selma’s
such a bad place that you had to have a gun,” and urged Jones to
discontinue his criminality when released from prison. The district
court stated that Jones’s criminal history, starting as “a teenager . . .
[of] not only possess[ing] a firearm but . . . us[ing] it,” revealed that
he was more of “a danger to the community” than other offenders
with the “same number of criminal history points” and that noth-
ing had “changed . . . [because he] just got[] caught yet again with
a firearm.” And Jones’s conduct, the district court stated, warranted
a “harsher” sentence because he possessed a firearm while “under
supervision.”
The district court sentenced Jones to 112 months of impris-
onment. The district court “f[ound] that the advisory guidelines
range [was] not appropriate to the facts and circumstances of the
case and would not provide a reasonable sentence” and “opin[ed]
[that Jones] [was] a menace to society” by “not just possessi[ng] . . .
firearms, but . . . us[ing] [them] in a way that damages society.” The
district court explained that its sentence “addresse[d] the serious-
ness of the offense, the sentencing objectives of punishment, deter-
rence, and incapacitation.” See
18 U.S.C. § 3553. The district court
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21-13851 Opinion of the Court 5
also stated that it “t[ook] into account . . . some time [Jones served]
on the revocation sentence” and did “not [impose] the 120-month
max” because Jones had “pled guilty.”
Jones “object[ed] to the . . . upward departure” and the “pro-
cedure in which the sentence was reached . . . .” He argued that his
“criminal history [was] adequately represented in the sentencing
guideline report . . . .” The district court overruled Jones’s objec-
tion.
We review a departure from the applicable sentencing
guideline range for abuse of discretion. Koon v. United States,
518
U.S. 81, 100 (1996). Under our two-step test for reviewing a depar-
ture, we first “determine whether the sentence was imposed either
in violation of law or as a result of an incorrect application of the
Guidelines.” United States v. Williams,
989 F.2d 1137, 1140 (11th
Cir. 1993). We next “examine[] whether the extent of the departure
from the relevant guidelines range is reasonable.”
Id.
The Sentencing Guidelines allow the district court to depart
upward from a defendant’s advisory guideline range “[i]f reliable
information indicates that [his] criminal history category substan-
tially under-represents the seriousness of [his] criminal history or
the likelihood that [he] will commit other crimes . . . .” U.S.S.G.
§ 4A1.3(a)(1). To determine whether the defendant’s criminal his-
tory accurately represents his criminal history, the district court
may take into account that the defendant has “[p]rior sentence(s)
of substantially more than one year imposed as a result of inde-
pendent crimes committed on different occasions.” Id.
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6 Opinion of the Court 21-13851
§ 4A1.3(a)(2). The district court also may consider that “the defend-
ant has repeatedly committed crimes and violated probation.”
United States v. Briggman,
931 F.2d 705, 710 (11th Cir. 1991).
“[T]here is substantial overlap between” a departure and a
variance, the latter of which “is a sentence imposed outside the
guidelines range when the court determines that a guidelines sen-
tence will not adequately further the purposes reflected in
18
U.S.C. § 3553(a).” United States v. Hall,
965 F.3d 1281, 1295, 1297
(11th Cir. 2020). “To determine whether the district court varied
or departed,” “we look at whether it cited a specific guidelines de-
parture provision in setting the defendant’s sentence, or whether
its rationale was based on the § 3553(a) factors and a determination
that the guidelines range was inadequate.” Id. at 1296. “When there
is an ambiguity in the oral sentencing, as opposed to a conflict be-
tween the oral pronouncement and the written judgment, it is
proper to look to the written judgment to ascertain the [district
court’s intention.” United States v. Purcell,
715 F.2d 561, 563 (11th
Cir. 1983).
The district court departed under the Sentencing Guide-
lines. The district court notified the parties that it was “considering
departing from the guidelines range calculated in the [presentence
investigation report],” as it was required to do. Hall, 965 F.3d at
1295–96. Jones and the government briefed the issue, contesting
the extent and seriousness of Jones’s prior convictions. Although
the district court did not refer to a departure during Jones’s sen-
tencing hearing, it did not refer to a variance either. But the district
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21-13851 Opinion of the Court 7
court stated, in its statement of reasons supporting its sentence,
that it was departing upward based on section 4A1.3 of the Guide-
lines.
When the district court decides to depart upward for a de-
fendant who has the maximum criminal history category of VI, the
district court may increase the offense level. U.S.S.G.
§ 4A1.3(a)(4)(B). “[T]he [district] court should structure the depar-
ture by moving incrementally down the sentencing table to the
next higher offense level in Criminal History Category VI until it
finds a guideline range appropriate to the case.” Id. But the district
court “need not explicitly discuss [its] reasons for bypassing incre-
mental offense level sentencing ranges.” United States v. Dixon,
71
F.3d 380, 383 (11th Cir. 1995). Because the district court is exercis-
ing “its discretion in determining which offense level corresponds
to the appropriate sentencing range,” we review the extent of the
departure “for reasonableness based on findings by the district
court as to (1) why the extent and nature of the defendant’s crimi-
nal history warrants an upward departure from category VI, and
(2) why the sentencing range within which the defendant is sen-
tenced is appropriate to the case.”
Id.
Sentencing errors that defendants preserve for appeal are re-
viewed for harmless error. United States v. Paz,
405 F.3d 946, 948
(11th Cir. 2005). Under the harmless error standard, “[a]ny error,
defect, irregularity, or variance that does not affect substantial
rights must be disregarded.” Fed. R. Crim. P. 52(a). So, “[t]o find
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8 Opinion of the Court 21-13851
harmless error, we must determine that the error did not affect the
substantial rights of the parties.” Paz,
405 F.3d at 948.
The failure of the district court to provide a step-by-step ex-
planation of its departure is harmless. The district court considered
Jones’s presentence investigation report, the parties’ briefs, and
their arguments in determining the extent of the upward depar-
ture. Jones’s presentence report assigned him an offense level of 17,
but the report provided that Jones faced an offense level of 24 in
the event his “Manslaughter conviction . . . was for Voluntary Man-
slaughter.” And the government argued that Jones’s manslaughter
was intentional instead of reckless. A criminal history category of
VI and an offense level of 24 results in an advisory guideline range
of 100 to 125 months of imprisonment. U.S.S.G. ch. 5, pt. A. The
reliance of the district court on these materials suggests it was
aware of the differences in offense levels and the requirement that
it consider those levels incrementally. The district court was not
required to “discuss its reasons for bypassing” levels 18 through 23.
See Dixon,
71 F.3d at 383. So the failure of the district court to pro-
vide a step-by-step explanation of its departure did not affect Jones’s
substantial rights. See Paz,
405 F.3d at 948.
The district court reasonably departed upward 49 months
from the high end of Jones’s recommended sentencing range under
section 4A1.3. Jones’s “criminal history category substantially un-
der-represent[ed] the seriousness of [his] criminal history or the
likelihood that [he] will commit other crimes . . . .” U.S.S.G.
§ 4A1.3(a)(1). Jones’s criminal history points exceed the 13 points
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21-13851 Opinion of the Court 9
required for the maximum criminal history category of VI. Jones is
a persistent recidivist, having accumulated six convictions involv-
ing firearms since the age of 17. Jones’s crimes were serious be-
cause, as the district court stated, he had used a firearm “to shoot
somebody.” See U.S.S.G. § 4A1.3 n.2(B) (“[T]he court should con-
sider that the nature of the prior offenses rather than simply their
number is often more indicative of the seriousness of the defend-
ant's criminal record.”). His conviction for manslaughter stemmed
from a woman being killed while he was in a gun battle with an
adversary, and he shot into an occupied vehicle on two separate
occasions. Neither the terms of imprisonment Jones served for his
convictions or being on supervised release deterred him from com-
mitting crimes. We cannot say that the district court abused its dis-
cretion by sentencing Jones to 112 months of imprisonment.
We AFFIRM Jones’s sentence.
