United States v. Tecoy Jones , 493 F. App'x 825 ( 2012 )


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  •               United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 12-1885
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Tecoy Marquis Jones
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Arkansas - El Dorado
    ____________
    Submitted: November 12, 2012
    Filed: November 29, 2012
    [Unpublished]
    ____________
    SMITH, BOWMAN, and BEAM, Circuit Judges.
    ____________
    PER CURIAM.
    Tecoy Marquis Jones appeals from the sentence imposed by the District Court1
    after a jury found Jones guilty of unlawful possession of a firearm as a previously
    convicted felon. We affirm.
    On the night of February 19, 2010, Camden, Arkansas, police officers
    responded to a call of “shots fired.” Upon arriving at the scene, they found an injured
    James Thrower, who indicated that he had been robbed at gunpoint. Officers
    apprehended Jones about a quarter of a mile from the scene as he attempted to flee
    on foot. When Jones was searched, officers found $1000 on his person but no
    firearm. Likewise, a quick search of the area with flashlights revealed no firearm.
    When questioned at the police station, Jones eventually admitted that he had fought
    with Thrower and that Jones had robbed Thrower of $1000 after they fought. A
    gunshot-residue test performed that night on Jones’s right hand later returned positive
    results. A jailer at the facility where Jones was detained overheard Jones on the
    telephone tell someone “that he needed them to go across the road from the house and
    out in the woods underneath some leaves by some bushes to retrieve an item for him.”
    Tr. at 45. The jailer alerted police. The next morning, officers returned to the area
    and found a loaded semi-automatic handgun about twenty feet from the spot where
    Jones was taken into custody. At Jones’s federal trial on the charge of being a felon
    in possession of a firearm, the government read into the record a portion of a state-
    court plea-hearing transcript wherein Jones admitted that he possessed the firearm in
    question on February 19, 2010, tucked into the waistband of his pants, knowing that
    he was a felon who did not have and could not get a license to carry a gun.
    After the jury convicted Jones on the felon-in-possession charge, the United
    States Probation Office prepared a Presentence Investigation Report (PSR). In the
    PSR, the probation officer recommended a four-level increase under U. S. Sentencing
    1
    The Honorable Harry F. Barnes, United States District Judge for the Western
    District of Arkansas.
    -2-
    Guidelines § 2K2.1(b)(6) because Jones possessed or used the firearm in connection
    with another felony offense, namely, the armed robbery of Thrower. As noted in the
    PSR, when Jones admitted in state court that he possessed the firearm on the night of
    the robbery, he was pleading guilty to a state-law charge of delivery of a controlled
    substance. In exchange for Jones’s guilty plea to the drug charge, the state agreed to
    drop charges of aggravated robbery and aggravated assault related to Jones’s
    February 19 altercation with Thrower.
    Jones objected to the recommended increase and to the paragraph in the PSR
    that set out the factual basis for the recommendation. At the sentencing hearing,
    Jones told the court that he never admitted to armed robbery and pointed out that
    Thrower never testified. The court overruled the objections and applied a four-level
    increase to Jones’s base-offense level, resulting in an advisory Guidelines sentencing
    range of 130 to 162 months, which Jones says would have been 92 to 115 months
    without the objected-to increase. The District Court sentenced Jones to the statutory
    maximum of 120 months, and Jones appeals. We review for clear error the District
    Court’s factual finding that Jones possessed the firearm in connection with another
    felony offense for purposes of applying Guidelines § 2K2.1(b)(6). See United States
    v. Mosley, 
    672 F.3d 586
    , 589 (8th Cir. 2012) (standard of review).
    On appeal, Jones argues that the evidence was insufficient to support the
    court’s § 2K2.1(b)(6) finding and that the court therefore clearly erred in applying the
    four-level enhancement. He claims that while “he may have admitted to possessing
    a firearm on February 19, 2010 and he may have admitted to robbing James
    Thrower, . . . there is just no evidence that he used or possessed the firearm in
    connection with the robbery.” Brief of Appellant at 15. We disagree with Jones’s
    assertion that there is “no” evidence that he possessed the firearm in connection with
    the armed robbery of Thrower. Indeed, we conclude, based on the record evidence
    recounted above, that a preponderance of the evidence supports the finding that Jones
    at the very least possessed (and likely also used) the firearm when robbing Thrower.
    -3-
    See United States v. Bridges, 
    569 F.3d 374
    , 377 (8th Cir. 2009) (noting that a
    sentencing court properly applies “a preponderance of the evidence standard to
    determine whether a four-level enhancement for possessing a firearm ‘in connection
    with another felony offense’” is warranted). It is not necessary that a defendant admit
    facts in order for them to be found by a sentencing court. See United States v. Lee,
    
    625 F.3d 1030
    , 1035 (8th Cir. 2010) (concluding that the district court did not err
    when it applied a sentencing enhancement based on conduct that the defendant did
    not admit but that the court found by a preponderance of the evidence), cert. denied,
    
    132 S. Ct. 124
     (2011). Nor is it required that a defendant be charged with or
    convicted of the other felony offense for § 2K2.1(b)(6) to apply. U.S. Sentencing
    Guidelines Manual § 2K2.1 cmt. n.14(C). The District Court did not clearly err in
    finding that Jones possessed the firearm in connection with another felony offense.
    We affirm Jones’s sentence.
    ______________________________
    -4-
    

Document Info

Docket Number: 12-1885

Citation Numbers: 493 F. App'x 825

Judges: Beam, Bowman, Per Curiam, Smith

Filed Date: 11/29/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023