United States v. Maxwell Jones, 16-30261

Maxwell Jones was initially sentenced in Nov. 2014 to 144 months for three counts of being a felon in possession of a firearm; that sentence was vacated on appeal in 2016 because the district court relied on three uncounseled prior convictions (Jones I).
On remand the Ninth Circuit told the district court it could consider a state-court sentence imposed after the original federal sentence (an intervening sentence) when recalculating criminal history.
At resentencing the district court imposed an 84-month term (a 6‑month upward departure from the 63–78 month Guidelines range).
In pronouncing sentence the court referenced Jones’s prior uncounseled convictions (assaults, drug distribution, possession of stolen property), which Jones argued was improper.
Jones appealed arguing (1) the district court improperly included the intervening state sentence in his criminal history, and (2) the court again relied on uncounseled convictions in violation of his Sixth Amendment rights.
The Ninth Circuit affirmed: it held the intervening sentence could be counted and that any error in referencing uncounseled convictions did not affect Jones’s substantial rights.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred by including Jones’s intervening state sentence in his criminal history	Jones: court should not count the post‑sentencing state sentence	Government: counting is permitted under Guidelines and Klump and was explicitly allowed by the panel in Jones I	Held: Inclusion proper; panel previously authorized consideration and Klump controls
Whether the district court improperly relied on uncounseled prior convictions at resentencing	Jones: court again relied on constitutionally infirm uncounseled convictions, violating his rights and requiring reversal	Government: any reference did not change sentence; court also relied on other serious convictions and offense conduct	Held: Court plainly erred in referencing uncounseled convictions, but Jones failed to show a reasonable probability of a different sentence; error did not affect substantial rights, so affirmance

United States v. Jones, 653 F. App’x 861 (9th Cir. 2016) (prior panel decision vacating original sentence and authorizing consideration of intervening sentence)
United States v. Klump, 57 F.3d 801 (9th Cir. 1995) (post‑sentencing state sentences may be counted at federal resentencing)
Olano v. United States, 507 U.S. 725 (1993) (plain‑error review framework)
United States v. Waknine, 543 F.3d 546 (9th Cir. 2008) (showing reasonable probability of a different sentence under plain‑error standard)
United States v. Bryant, 136 S. Ct. 1954 (2016) (treatment of constitutionally infirm prior convictions at sentencing)
United States v. Tucker, 404 U.S. 443 (1972) (requirement that sentencing court not rely on invalid prior convictions)
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499 (1995) (scope of Ex Post Facto Clause)
Collins v. Youngblood, 497 U.S. 37 (1990) (defines laws triggering Ex Post Facto Clause)
United States v. Williams, 782 F.2d 1462 (9th Cir. 1986) (court may consider conduct underlying an invalidated conviction at sentencing)
United States v. Gay, 967 F.2d 322 (9th Cir. 1992) (one panel may not overrule precedent of a prior panel)