United States v. Duane Jones
696 F.3d 932
9th Cir.2012Background
- Jones pleaded guilty in 2006 to possessing counterfeit obligations with intent to defraud and received 24 months in custody followed by 36 months of supervised release.
- Prior to his federal conviction, Jones had a California state conviction for indecent exposure; in 2010 a second California indecent exposure conviction made him a felony under state law.
- The Probation Office treated the 2010 state felony as a Grade B violation due to recidivist enhancement, yielding a Guidelines range of 12–18 months and recommending 14 months custody and 22 months of supervised release plus ten special conditions.
- At sentencing, the court orally pronounced 14 months custody, 22 months supervised release, and omitted two conditions the parties had agreed to drop; a written judgment later added a residency restriction as a special condition.
- Jones timely appealed, challenging whether the state felony should be counted for revocation purposes and whether the residency restriction in the written judgment accorded with the oral sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should recidivist state convictions be treated as felonies for revocation grading? | Jones contends it should be a misdemeanor absent recidivist enhancement. | Jones's status as recidivist supports treating the conviction as a felony for grading. | Recidivist enhancement valid; count as felony for grading. |
| May recidivist status influence the violation grade under 7B1.1 when pre-federal convictions exist? | Recidivist status cannot be used to justify a higher grade because it is not conduct. | Recidivist status properly informs grade because second/further offenses are more serious. | Yes; recidivist status may determine grade, consistent with Rodriguez and related precedent. |
| Is the residency restriction in the written judgment consistent with the oral pronouncement? | Written judgment should align with oral pronouncement. | The court may include additional written conditions. | Vacate and remand to strike the residency restriction from the written judgment to match the oral sentence. |
Key Cases Cited
- United States v. Rodriquez, 553 U.S. 377 (2008) (recidivist enhancements may affect classification of prior convictions)
- United States v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc; recidivist sentencing context; abrogated in part by Rodriquez)
- United States v. Rivera, 658 F.3d 1073 (9th Cir. 2011) (recidivist enhancements in determining aggravating factors)
- United States v. Guzman-Mata, 579 F.3d 1065 (9th Cir. 2009) (guidelines interpretation in revocation context)
- United States v. Simtob, 485 F.3d 1058 (9th Cir. 2007) (breach of trust as a consideration in revocation sentences)
- United States v. Denton, 611 F.3d 646 (9th Cir. 2010) (application note guidance on uncharged conduct and conduct-based grading)
- United States v. Hicks, 997 F.2d 594 (9th Cir. 1993) (oral pronouncement controls over written judgment in sentencing)
- United States v. Munoz-Dela Rosa, 495 F.2d 253 (9th Cir. 1974) (early controlling principle on sentence pronouncements)
- United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) (requirement to announce Guidelines range at sentencing)