United States v. Paul Robert Jones , 411 F. App'x 925 ( 2011 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 09-2972
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Paul Robert Jones, *
* [UNPUBLISHED]
Appellant. *
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Submitted: May 12, 2010
Filed: March 1, 2011
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Before RILEY, Chief Judge, JOHN R. GIBSON1 and MURPHY, Circuit Judges.
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PER CURIAM.
Paul Robert Jones pled guilty to one count of assault resulting in serious bodily
injury in violation of 18 U.S.C. §§ 113(a)(6), 1151 and 1153(a). Following a hearing,
the district court2 sentenced Jones to 82 months imprisonment followed by 3 years
supervised release. Jones appeals his sentence, arguing the district court erred in
1
The Honorable John R. Gibson retired from service on this court January 26,
2011. This opinion is consistent with his vote at the panel’s conference on May 12,
2010. See also 8th Cir. Rule 47E.
2
The Honorable Joan N. Ericksen, United States District Judge for the District
of Minnesota.
assessing his criminal history because the district court gave too much weight to his
tribal court convictions. We affirm Jones’s sentence.
The charges against Jones arose from a November 26, 2008 stabbing within the
Red Lake Indian Reservation. Jones climbed through his estranged wife’s bedroom
window and brutally slashed and stabbed her with a serrated kitchen knife, causing
“severe lacerations on her face, right breast, right hand, and left arm which required
sutures and surgery to repair.” Following Jones’s guilty plea, the United States
Probation Office prepared a presentence investigation report (PSR) for the district
court. The PSR calculated Jones’s advisory range under the United States Sentencing
Guidelines (U.S.S.G. or Guidelines) as 51 to 63 months imprisonment.
Jones asked for a sentence at the low end of the Guidelines range, asserting he
accepted responsibility for the attack, was remorseful, and was undergoing treatment
for mental health and chemical dependency problems. The government sought an
upward departure, requesting a 100 month sentence based on (1) the psychological
harm to the victim, (2) the unusually heinous, cruel, brutal, or degrading conduct, and
(3) because Jones’s criminal history category did not adequately reflect the
seriousness of his past criminal conduct and the likelihood of recidivism. See
U.S.S.G. §§ 5K2.3, 5K2.8, 4A1.3.
At sentencing, the district court found the PSR’s criminal history category of
III was not an adequate reflection of Jones’s criminal history due to uncounted tribal
convictions. See § 4A1.2(i). The court also noted Jones had drug and alcohol
problems, mental health issues, and a history of domestic assault. Based on these
circumstances, the court found Jones had a “very significant propensity to reoffend,”
and then sentenced Jones to 82 months imprisonment.
On appeal, Jones argues the district court erred by giving too much
consideration to unscored tribal convictions noted in his PSR. Jones also argues the
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district court abused its discretion by failing to consider his individual characteristics
such as his remorse, treatment for alcohol and mental health problems, and
commitment to sobriety. See 18 U.S.C. § 3553(a).
We review sentences under a deferential abuse of discretion standard. See
United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). “In reviewing
[Jones’s] sentence, we first ensure that the district court did not commit significant
procedural error, such as an improper calculation of the advisory sentencing
guidelines range; then, absent significant procedural error, we review the sentence for
substantive reasonableness.” United States v. Jenkins, 578 F.3d 745, 748 (8th Cir.
2009), cert. denied, 130 S. Ct. 1550 (2010); Feemster, 572 F.3d at 461 (describing
means of procedural error).
Here, the district court did not procedurally err in considering Jones’s tribal
convictions. The Guidelines specifically permit a district court to consider tribal court
convictions for the purpose of determining the adequacy of a defendant’s criminal
history, see U.S.S.G. § 4A1.3(a)(2)(A), and this court has consistently approved tribal
convictions as a permissible basis for departing upward from the advisory Guidelines
range. See, e.g., United States v. Cook, 615 F.3d 891, 893 (8th Cir. 2010); United
States v. Harlan, 368 F.3d 870, 874-75 (8th Cir. 2004). We have reviewed the record
below and are satisfied that under the totality of the circumstances the district court
considered all relevant sentencing factors, see 18 U.S.C. § 3553(a), and imposed a
substantively reasonable sentence. See Feemster, 572 F.3d at 461.
We affirm the judgment.
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