Filed: Jul. 02, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4854 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRENCE RONZAY JONES, a/k/a Tee, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:07-cr-00029-D-1) Submitted: June 3, 2009 Decided: July 2, 2009 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Jude
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4854 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TORRENCE RONZAY JONES, a/k/a Tee, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:07-cr-00029-D-1) Submitted: June 3, 2009 Decided: July 2, 2009 Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Jude D..
More
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4854
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TORRENCE RONZAY JONES, a/k/a Tee,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. James C. Dever III,
District Judge. (4:07-cr-00029-D-1)
Submitted: June 3, 2009 Decided: July 2, 2009
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Jude Darrow, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Torrence Ronzay Jones appeals his conviction on a
guilty plea and sentence on one count of conspiracy to
distribute cocaine and marijuana, in violation of 21 U.S.C.
§ 846 (2006) (Count One), and possession with intent to
distribute cocaine, more than 5 grams of cocaine base, and
marijuana, and aiding and abetting, in violation of 21 U.S.C.
§ 841(a)(1) (2006), 18 U.S.C. § 2 (2006) (Count Five). At the
sentencing hearing, the district court determined that Jones’
advisory guidelines range was 92 to 115 months’ imprisonment.
The district court granted the Government’s motion for upward
departure, pursuant to U.S. Sentencing Guidelines Manual
("USSG") § 4A1.3 (2007), on the bases that Jones’ criminal
history category under-represented the seriousness of his
criminal history and the likelihood that he would commit future
crimes, and the Government’s motion for downward departure,
pursuant to USSG 5K1.1. The court departed upward two criminal
history categories, from category IV to VI, resulting in an
imprisonment range of 120 to 150 months, and then departed
downward, in consideration of Jones’ substantial assistance.
Following thorough consideration of the applicable 18 U.S.C.
§ 3553(a) (2006) factors, the arguments of counsel, Jones’
statement, the information in the pre-sentence investigation
2
report, and the applicable statutory and constitutional factors, 1
the district court imposed concurrent 132-month terms of
imprisonment and concurrent three-year and five-year terms of
supervised release. Jones appeals from the district court’s
upward departure, 2 claiming that the departure constituted a
clear abuse of discretion. 3 We affirm.
Jones asserts that the district court abused its
discretion in sentencing him, claiming the court fashioned a
sentence to correct a Government charging error. Specifically,
he claims the Government’s failure to specify the time frame for
the conspiracy resulted in its inability to have Jones sentenced
as a career offender, and that the basis for the Government’s
motion for upward departure was to remedy its charging decision.
Jones asserts that a lesser sentence of 92 months would have
been sufficient to meet the desired goals of § 3553. Finally,
1
In addition to stating in open court the reasons for the
sentence imposed, the district court issued a written order
reiterating its sentencing rationale. Both the district court’s
statements at sentencing, and its written order, demonstrate
that it made particularized and individual findings relating to
Jones, which reasons supported its chosen sentence. See United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009); Rita v.
United States,
127 S. Ct. 2456, 2468 (2007).
2
The net upward departure, from the originally calculated
range of 92 to 115 months, was 17 months above the guidelines
range.
3
As Jones reserved the right to appeal from a sentence in
excess of the applicable advisory guidelines range, there is no
issue of waiver in this case.
3
he contends that the district court’s use of criminal history
outside the presumed period of the conspiracy in determining his
advisory guideline range, coupled with its upward departure
based on the same convictions, resulted in inappropriate
“double-counting.” 4
We review departure sentences, “whether inside, just
outside, or significantly outside the Guidelines range” under a
“deferential abuse-of-discretion standard.” Gall v. United
States, 128 S. Ct. 586, 591 (2007); United States v. Evans,
526
F.3d 155, 161 (4th Cir.), cert. denied,
129 S. Ct. 476 (2008).
An upward departure from the applicable guidelines sentencing
range is warranted when a defendant’s criminal history category
is inadequate to reflect either the seriousness of the
defendant’s criminal history or the likelihood of recidivism.
USSG § 4A1.3(a)(1), p.s. A district court “may reject a
sentence within the advisory Guidelines range because ‘the case
at hand falls outside the “heartland”’ to which the individual
Guidelines apply or because a sentence within the Guidelines
fails to reflect the other § 3553(a) factors or ‘because the
4
Jones concedes that the district court properly calculated
the guidelines range, considered the arguments of counsel, and
duly addressed the § 3553(a) sentencing factors. He further
concedes that the district court had the authority to impose a
sentence outside the guidelines range, and that it articulated
reasons for its departure.
4
case warrants a different sentence regardless.’” Evans, 526
F.3d at 161 (quoting
Rita, 127 S. Ct. at 2465). The district
court is obligated to state in open court the particular reasons
supporting its chosen sentence, 18 U.S.C. § 3553(c) (2006), and
to “make an individualized assessment based on the facts
presented.”
Gall, 128 S. Ct. at 597.
We find no error in Jones’ sentence. The district
court detailed its reasons for the two-level upward departure
and those reasons meet statutory and constitutional muster. 5 The
district court’s conclusion that a criminal history category of
IV was inadequate to account for the seriousness of Jones’
criminal history and the likelihood that he would commit future
crimes was appropriate under the circumstances of this case and
proper under the law.
Moreover, Jones’ arguments that the § 3553(a)
sentencing factors could have been “more fully and fairly
addressed” by the district court because his drug quantities
were not overwhelming, and that a 92-month sentence would have
adequately satisfied the § 3553(a) factors, merely evince a
disagreement with the district court’s conclusion, and fail to
5
The district court never mentioned the Government’s
charging decision as a reason for granting the upward departure,
and Jones’ argument that the court upwardly departed to cure the
Government’s dissatisfaction with its own charging decision is
not supported by the record.
5
establish an abuse of discretion by the district court. A
defendant’s disagreement with the sentence imposed does not
constitute reversible error. Evans, 526 F.3d at 162.
Finally, we reject Jones’ claim that the district
court erred in “double-counting” his prior convictions. Review
of the record reveals that the district court was fully aware of
the prohibition against “double-counting.” The district court’s
departure decision was based wholly on its analysis of the
adequacy of Jones’ criminal history category and its
determination that a criminal history category of IV failed to
adequately reflect either the seriousness of Jones’ prior
criminal actions or his significant likelihood of future
recidivism. Moreover, even if the district court had erred in
calculating the departure, in the absence of the upward
departure, Jones’ 132-month sentence would have been proper as a
variance sentence. See Williams v. United States, 503 U.S. 193,
204 (1992);
Evans, 526 F.3d at 165 (“When . . . a district court
offers two or more independent rationales for its deviation, an
appellate court cannot hold the sentence unreasonable if the
appellate court finds fault with just one of these
rationales.”).
Accordingly, we affirm Jones’ conviction and sentence.
We dispense with oral argument because the facts and legal
6
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
7
