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United States v. Jones

April 16, 2009

UNITED STATES OF AMERICA
v.
CARL JONES



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM

On April 6, 2009, this Court sentenced Defendant Carl Jones to a term of imprisonment of 300 months following his conviction by a jury for the offense of being a felon in possession of a firearm. We determined during the sentencing that a sentencing enhancement pursuant to section 4B1.4 of the United States Sentencing Guidelines was appropriate in this case because Jones utilized the weapon in connection with a crime of violence. We also determined that Jones was not entitled to an offense level reduction under U.S.S.G. § 3E1.1 for acceptance of responsibility. Finally, we found that the relevant sentencing factors set out in 18 U.S.C. § 3553 required that we sentence Jones to a lengthy imprisonment term. Below, we explain in greater detail the reasoning behind each of these conclusions.

I. BACKGROUND

On September 18, 2005, Jones was arrested near a Temple University fraternity party for being a felon in possession of a firearm. That night, Jones had engaged in an argument with some of the Temple students who had attended the party. During the argument, Jones pointed a gun at the students and ordered them to get in his car. The students refused. Moments later, members of the Temple University police force arrived on the scene. Jones initially told the officers that there was no problem and began to walk away. As he turned away, one of the students told the officers that Jones had a gun. At that point, Jones began to run and reached a nearby alley pursued by two of the officers. Upon entering the alley, Jones fell to the ground and threw the gun over a nearby fence. Jones was apprehended and eventually charged with being a felon in possession of a firearm. On November 21, 2008, following a three-day jury trial, Jones was found guilty.

In his Sentencing Memorandum, Jones challenged the Pre-Sentence Report ("PSR") prepared by the Probation Office arguing that: 1) it incorrectly included a sentencing enhancement pursuant to U.S.S.G. § 4B1.4 for Jones's possession of the firearm in connection with a crime of violence; 2) it incorrectly excluded a two-level sentencing reduction due to Jones's acceptance of responsibility; and 3) the factors outlined in 18 U.S.C. § 3553(a)(2) called for a lenient sentence in this case. During the Sentencing Hearing conducted on April 6, 2009, we rejected Jones's challenges for the reasons stated below and sentenced him to a term of imprisonment of 300 months.

II. SENTENCING ENHANCEMENT FOR CRIME OF VIOLENCE

Pursuant to U.S.S.G. § 4B1.4 a defendant who is deemed to be an armed career criminal*fn1 is subject to a one point offense level enhancement and a criminal history category enhancement if "the defendant used or possessed the firearm or ammunition in connection with . . . a crime of violence." U.S.S.G. §§ 4B1.4(b)(3)(a), 4B1.4(c)(2)(a). The PSR in this case states that the sentencing enhancement is appropriate here because Jones possessed the gun in connection with a simple assault. (PSR ¶¶ 17-23.) Jones asserts that the sentencing enhancement does not apply in this case because: 1) simple assault is not a crime of violence under the definition established by the Sentencing Guidelines; and 2) there was "no credible evidence" at trial that Jones possessed the weapon in connection with a simple assault. (Def.'s Sentencing Mem. 3-8.) For the reasons stated below, we reject both arguments.

A. Simple Assault as Crime of Violence

Under the Sentencing Guidelines, a crime is a crime of violence for the purpose of section 4B1.4 if it is punishable by more than one year and it:

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). In United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999), the Third Circuit Court of Appeals found that simple assault is a crime of violence for the purpose of section 4B1.4. The Court has consistently applied the Dorsey conclusion in subsequent cases. See, e.g., U.S. v. Wolfe, 301 Fed. App'x. 134, 137 (3d Cir. 2008); U.S. v. Green, 282 Fed. App'x. 200, 202 (3d Cir. 2008); U.S. v. Tucker, 266 Fed. App'x. 120, 122 (3d Cir. 2008); U.S. v. Ernst, 223 Fed. App'x. 173, 176 (3d Cir. 2007).

Jones argues that the Dorsey line of cases has been abrogated by the Supreme Court's recent decisions in Begay v. United States, 128 S.Ct. 1581 (2008), and Chambers v. United States, 129 S.Ct. 687 (2009). We disagree.

The issue before the Court in Begay was whether a defendant's prior conviction for driving under the influence of alcohol constituted a "violent felony" under the Armed Career Criminal Act. Begay, 128 S.Ct. at 1583. The Act defines "violent felony" as: any crime punishable by imprisonment for a term exceeding one year [that] (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The Court found that a crime could only be classified as a violent felony under that statute if it is "roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Begay, 128 S.Ct. at 1585. The Court stated that covered crimes should be those where the relevant "conduct is such that it makes [it] more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim" because "[c]rimes committed in such a purposeful, violent, and aggressive manner are 'potentially more dangerous when firearms are involved.'" Id. at 1586.

Subsequently, in Chambers, the Court found that the crime of failure to report for criminal confinement is not a "violent felony" under the Armed Career Criminal Act because "it does not 'involv[e] conduct that presents a serious potential risk of physical injury to another.'" Id. at 692. The Court found persuasive the fact that "the crime amounts to a form of inaction" and that "an individual who fails to report would seem unlikely, not ...


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