United States v. Jones , 200 F. App'x 246 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5023
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
LINWOOD EARL JONES, JR., a/k/a Earl Linwood
Jones,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. James A. Beaty, Jr.,
District Judge. (CR-04-499)
Submitted: August 31, 2006 Decided: September 21, 2006
Before MICHAEL and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Thomas H. Johnson, Jr., GRAY, JOHNSON, BLACKMON, LEE & LAWSON,
L.L.P., Greensboro, North Carolina, for Appellant. Anna Mills
Wagoner, United States Attorney, Lisa B. Boggs, Assistant United
States Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Linwood Earl Jones, Jr., pled guilty to possession of
marijuana with intent to distribute in violation of 21 U.S.C.A.
§ 841(a), (b)(1)(D) (West 1999 & Supp. 2006) (Counts One and Four);
possession of a firearm in furtherance of a drug trafficking crime,
18 U.S.C.A. § 924(c) (West 2000 & Supp. 2006) (Count Two); and
possession of a firearm by a felon, 18 U.S.C. § 922(g)(1) (2000)
(Count Six). Jones received a sentence of fifty-four months for
Count One, Count Four, and Count Six, and a consecutive ten-year
sentence for Count Two. Jones appeals his sentence, arguing that
the district court erred in denying him a three-level adjustment
for acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1 (2005), and in refusing either to compel the government to
move for a downward departure for substantial assistance, USSG
§ 5K1.1, p.s., or to depart downward under USSG § 5K2.0, p.s. We
affirm in part and dismiss in part.
Jones was initially indicted under the name Earl Lynwood
Jones, an error which his attorney pointed out at his arraignment
in January 2005. On March 28, 2005, a superseding indictment was
filed which charged Jones with the same offenses, but used his
correct name. On March 30, 2005, Jones signed a plea agreement,
and on March 31, 2005, the day scheduled for trial, he entered a
plea of guilty. The probation officer recommended a two-level
adjustment for acceptance of responsibility, see USSG § 3E1.1(a),
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but the government declined to move for the additional one-level
reduction under § 3E1.1(b) because Jones’ guilty plea was not
timely. At sentencing, Jones objected to the government’s failure
to move for the additional reduction. The district court overruled
his objection.
A defendant who has earned a two-level adjustment for
acceptance of responsibility may receive an additional one-level
reduction only if the government moves for the additional
reduction. USSG § 3E1.1(b). Application Note 6 to § 3E1.1
explains that the government’s motion is required because the
government “is in the best position to determine whether the
defendant has assisted authorities in a manner that avoids
preparing for trial . . . .” Note 6 also specifies that “the
conduct qualifying for a decrease . . . under subsection (b) will
occur particularly early in the case.”
Because Jones entered his guilty plea on the day
scheduled for trial, after the government had been forced to
prepare fully for trial, and the government consequently declined
to move for a reduction under subsection (b), the district court
did not err in denying Jones the additional one-level adjustment
for acceptance of responsibility.
At sentencing, Jones also challenged the government’s
failure to move for a downward departure, asserting that he had
provided substantial assistance to state authorities and had so
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informed the government. The government explained that Jones had
provided no assistance to federal authorities. She stated that she
had contacted the state officer identified by defense counsel and
learned that Jones provided assistance to him. However, after
cooperating, Jones engaged in new criminal conduct which formed the
basis for the charges in Counts Four and Six. She stated that,
under these circumstances, she would not request a § 5K1.1
departure. The district court determined that Jones had not
provided substantial assistance to the federal prosecutor, that the
government was under no obligation to reward him for assistance to
state authorities, and that the government’s motives for not
requesting a departure were not unconstitutional. The court
refused to compel a § 5K1.1 motion and also found no reason to
depart downward under § 5K2.0.
This court reviews for clear error the district court’s
decision not to compel the government to file a § 5K1.1 motion.
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000); United
States v. Conner, 930 F.2d 1073, 1076 (4th Cir. 1991). Jones’ plea
agreement did not obligate the government to move for a § 5K1.1
departure even if he provided substantial assistance. There was no
evidence that the government refused to make the motion based on
any unconstitutional motive. See Wade v. United States, 504 U.S.
181, 185-86 (1992). Therefore, the district court did not clearly
err in refusing to compel the government to file a § 5K1.1 motion.
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A district court’s decision not to depart is not
reviewable on appeal as long as the court recognized its authority
to depart. United States v. Quinn, 359 F.3d 666, 682 (4th Cir.
2004) (citing United States v. Bayerle, 898 F.2d 28, 30-31 (4th
Cir. 1990)).* Here, the district court expressed no uncertainty
about its authority to depart under USSG § 5K2.0. The court
concluded, however, that under the facts of Jones’ case, a
departure was not warranted. We conclude that this claim is not
reviewable on appeal. See Quinn, 359 F.3d at 682.
We therefore affirm the sentence imposed by the district
court, but dismiss that portion of the appeal which contests the
district court’s decision not to depart. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
*
Courts that have considered this issue since United States v.
Booker, 543 U.S. 220 (2005), was decided have uniformly concluded
that Booker does not change the rule. See, e.g., United States v.
Cooper, 437 F.3d 324, 333 (3d Cir. 2006) (collecting cases from
five circuits).
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