Opinion
CAUSE NO. 1:19-CR-33 DRL-SLC
2021-02-08
UNITED STATES of America, Plaintiff, v. Larry A. JONES, Jr., Defendant.
Anthony W. Geller, Government Attorney, US Attorney's Office, Fort Wayne, IN, for Plaintiff.
Anthony W. Geller, Government Attorney, US Attorney's Office, Fort Wayne, IN, for Plaintiff.
SENTENCING MEMORANDUM
Damon R. Leichty, Judge On November 16, 2017, Allen County Police Department officers went to a motel to search for an individual with an outstanding arrest warrant. Larry A. Jones, Jr. met the officers at the door and allowed them to enter. While conducting a protective sweep, officers found a loaded Zastava firearm under a bed. Pursuant to a plea agreement, Mr. Jones pleaded guilty to a single-count indictment: unlawfully possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1).
The government agreed to recommend the minimum sentence within the guideline range. At sentencing on October 16, 2020, when the government was set to its prior brief advocating something other than the minimum, the court struck the brief and afforded Mr. Jones the option of withdrawing from his plea and plea agreement or proceeding with sentencing. See Fed. R. Crim P. 11(c)(5), (d)(2) ; Santobello v. New York , 404 U.S. 257, 260-63, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) ; United States v. Navarro , 817 F.3d 494, 499-501 (7th Cir. 2015) ; United States v. Anderson , 604 F.3d 997, 1002-04 (7th Cir. 2010) ; United States v. D'Iguillont , 979 F.2d 612, 614 (7th Cir. 1992) ; see alsoPuckett v. United States , 556 U.S. 129, 139-43, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).
After being presented his options and taking the opportunity to consult with counsel, Mr. Jones elected to stick to his plea and plea agreement and proceed with sentencing without objection. The court has disregarded the government's brief, which prophylactically lacks any potency after three months. The court accounts for the government's agreed recommendation.
SENTENCING GUIDELINES
The court must first calculate the guideline range correctly, then decide whether the guideline sentence is the right and reasonable sentence for this defendant. United States v. Garcia , 754 F.3d 460, 483 (7th Cir. 2014). The court applies the 2018 sentencing guidelines because there are no ex post facto concerns. SeePeugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
Without objections to the presentence report, the court adopts as its own findings ¶¶ 1-179 of the presentence report, specifically including ¶¶ 155-162 concerning Mr. Jones’ financial condition and earning ability.
The guidelines start at offense level 22 because Mr. Jones possessed a semiautomatic firearm capable of accepting a large capacity magazine after being convicted of one controlled substance offense (dealing in cocaine or a narcotic drug). U.S.S.G. § 2K2.1(a)(3). His offense level is reduced three levels to level 19 because he clearly and timely accepted responsibility. U.S.S.G. §§ 3E1.1(a), (b).
The sentencing guidelines assess 23 total criminal points against Mr. Jones for the following offenses:
PointsCrime & SentenceU.S.S.G. 6 years imprisonment for dealing in 3 cocaine or a narcotic drug in Allen County, 4A1.1(a) Indiana. 3 years imprisonment (suspended), but later 3 years (2.5 years suspended) on 3 revocation, modified to 2 years, for 4A1.1(a) operating a vehicle while intoxicated, 4A1.2(k) habitual controlled substance offender in Allen County, Indiana. 3 1.5 years imprisonment for habitual traffic 4A1.1(a) violator in Allen County, Indiana. 4A1.2(a)(2) 4 years imprisonment (2 years suspended) 3 for operating a vehicle after a lifetime 4A1.1(a) suspension in Allen County, Indiana. 30 days imprisonment for false informing 4A1.1(c) 1 in Allen County, Indiana. 4A1.2(c)(1) 60 days imprisonment for public 4A1.1(b) 2 intoxication in Allen County, Indiana. 4A1.2(c)(1) 2 years imprisonment for possession of a 3 Schedule I, II, III, or IV controlled substance 4A1.1(a) in Allen County, Indiana. 180 days (suspended), 60 days jail on 2 revocation for unauthorized entry of a 4A1.1(b) motor vehicle in Allen County, Indiana. 4A1.2(k)(1) 3 years imprisonment (1 year suspended) for operating a motor vehicle after lifetime 4A1.1(a) 3 forfeiture of driving privileges in Allen County, Indiana.
These 23 points place Mr. Jones deep in criminal history category VI. U.S.S.G. chap. 5A.
The sentencing guidelines recommend a sentencing range of 63 to 78 months, U.S.S.G. chap. 5A, less than the maximum sentence of 120 months (10 years) that the crime carries by statute, 18 U.S.C. §§ 922(g)(1), 924(a)(2)
DISCUSSION
The court decides this sentence under 18 U.S.C. § 3553(a) and Booker v. United States , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). Turning to the statutory factors, the court must arrive at a reasonable sentence: one sufficient but not greater than necessary to satisfy the statute's purposes. 18 U.S.C. § 3553(a).
Mr. Jones has a prolific criminal history, even outside the offenses counted in his criminal history score. See 18 U.S.C. § 3553(a)(1) ; United States v. Walker , 98 F.3d 944, 948 (7th Cir. 1996) (noting that outdated convictions for serious offenses can be considered for "establishing the incorrigible character of the defendant's criminal propensities"). Mr. Jones argues that many convictions are old, but on this record they're old only in the sense that his crimes have been persistent for so long. At age 46, his history spans three decades. The guidelines account for only nine of his thirty-three convictions—and even then, several of these involved multiple counts. Even the certainty of past sentences hasn't been an adequate deterrent. See 18 U.S.C. § 3553(a)(2)(B). His history of failing to appear for proceedings, failing to comply with alternative means of correction, and resisting law enforcement underscore an ongoing disregard for the law. See 18 U.S.C. § 3553(a)(2)(A).
Though several of his offenses stemmed from operating a vehicle while suspended, which one might classify as less serious, so replete they were that he was convicted twice as a habitual offender and twice more for operating a vehicle after a lifetime suspension. Color in a battery conviction and five drug convictions, it proves near impossible to find a single year in which Mr. Jones was not committing crime, unless incarcerated. His criminal history places him in category VI, but well beyond a defendant with only 13 criminal history points (the minimum for that category). The court won't treat him then as fitting below the guideline range when the nature and extent of his criminal history in truth runs greater and when that would create an unwarranted disparity. See 18 U.S.C. §§ 3553(a)(1), (a)(6) ; see, e.g.,United States v. Melgar-Galvez , 161 F.3d 1122, 1124 (7th Cir. 1998) (upholding upward departure for 18 criminal history points and citing cases doing same for 17 and 18 points); see also U.S.S.G. § 4A1.3(a)(1) app. n.2(B); United States v. Jackson , 547 F.3d 786, 793 (7th Cir. 2008).
Mr. Jones’ criminal history reveals a real risk of recidivism. See 18 U.S.C. §§ 3553(a)(2)(B), (a)(2)(C). Recidivism for firearm offenses remains too high statistically, and this record indicates that this predictive comparison is regrettably conservative here. See United States Sentencing Commission (USSC), Recidivism Among Federal Firearms Offenders 4 (2019) (firearms offenders were rearrested at 68.1 percent compared to non-firearms offenders at 46.3 percent, and more quickly after release). This is his second firearms-related offense, appreciating that his first one was non-violent and some 30 years ago. He also was shot seven times in August 2019, so he knows all too well the risks and harm here. Rather than support a variance, the worry of relapse places him squarely within the guideline range, see 18 U.S.C. §§ 3553(a)(1), (a)(2), albeit for other reasons at the low end.
The guideline range is only an initial benchmark, seeGall v. United States , 552 U.S. 38, 50, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ; Rita v. United States , 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007), so the court never tips the scale to favor a guideline sentence blindly, United States v. Pennington , 667 F.3d 953, 958 (7th Cir. 2012). A guideline sentence often militates against unwarranted sentencing disparities among defendants who have similar backgrounds and offense conduct. See 18 U.S.C. § 3553(a)(6) ; United States v. Scott , 631 F.3d 401, 405 (7th Cir. 2011) ; United States v. Boscarino , 437 F.3d 634, 637 (7th Cir. 2006). That proves particularly true for this firearm offense—one that is frequently charged across the country, including in this district—and given his criminal history that comes before it, particularly without a full accounting by the guidelines. That said, Mr. Jones never wielded or used this firearm. It was found under his motel bed. He knew the gun was there, that he possessed it, though he says the woman who had the warrant that led law enforcement there brought the gun to the room. See 18 U.S.C. § 3553(a)(2)(A). These facts differentiate him from more serious variants of this crime. See 18 U.S.C. § 3553(a)(6).
At age 12, Mr. Jones’ childhood was stained by unimaginable tragedy: the murder of his mother. See 18 U.S.C. § 3553(a)(1). He nonetheless had a stable and loving upbringing from his grandmother and also received love and support from his aunts. His relationship with his father grew as he became an adult, though he passed a couple years ago. His grandmother just recently passed too. He has three adult children with whom he remains close. He also has one minor child, though he has been unable to see her for several years. Mr. Jones has continued family support from his aunts and children. Indeed, his aunts describe him as intelligent, upbeat, positive, and a family man. One observes that "he does not recognize goodness in himself despite having a lot of goodness in him." A pastor recommends a mentorship program for Mr. Jones. An aunt and uncle testified on his behalf. Even with his family losses, he retains strong family and mentor support. See id.
Mr. Jones needs medical and drug treatment. See 18 U.S.C. § 3553(a)(1). He has steeped drug addiction and alcohol abuse issues that at times accompanied several of his prior offenses. The risk of recidivism may be tempered if he can combat his addictions. He earned his GED in 1991. He briefly attended Ivy Tech Community College in 2008. He reports being interested in attending a trade school. He is to be commended both for his educational achievements and his desire to learn a productive trade. He has earned money as a self-employed music producer. His overall employment to date has been spotty, though. In short, he has the tools to pursue a different life if only he can combat addiction, secure employment, and focus on his family. See id.
The court has considered Mr. Jones’ allocution before determining his sentence. See , e.g. , United States v. Griffin , 521 F.3d 727 (7th Cir. 2008). Mr. Jones spoke about being shot and his desire to be a mentor. He introduced his family and supporters. He expressed a desire to make his grandmother proud.
The government recommends a sentence at the bottom of the range. Review of all factors under 18 U.S.C. § 3553(a) persuades the court that in light of the need for the sentence to reflect the seriousness of the offense, to account for the defendant's history and characteristics, to provide just punishment and to promote respect for the law, and to deter future crime, and given the range recommended by the guidelines, a sentence of 63 months is sufficient but not greater than necessary to satisfy federal sentencing goals.
The court may impose a term of supervised release of not more than 3 years. 18 U.S.C. § 3583(b)(2) ; see also U.S.S.G. § 5D1.2(a)(2) (recommending 1-3 years). The court believes that a supervised release term of 2 years is appropriate.
Mr. Jones can't pay the fines recommended by the guidelines even if afforded the most generous of installment payment schedules, so the court imposes no fine. A special assessment of $100.00 is mandatory. 18 U.S.C. § 3013(a)(2)(A).
SENTENCE
Accordingly, it is the court's judgment that the defendant, Larry Jones Jr., is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a total term of 63 months.
Under 18 U.S.C. § 3585, the court leaves it to the Bureau of Prisons to determine the appropriate amount of time served to be credited toward the defendant's sentence. The court recommends that the Bureau of Prisons designate as the place of the defendant's confinement, consistent with his security classification as determined by the Bureau of Prisons, a medical facility for appropriate medical care or alternatively the FCI Milan where he may participate in a residential drug abuse (RDAP) program or another appropriate treatment program.
Upon release from prison, the defendant will be placed on supervised release for a term of 2 years. While on supervised release, he must comply with the terms of supervision set forth in ¶¶ 180-193 of the presentence report, which paragraphs the court incorporates as part of this sentence having made an independent judgment that they should be imposed under 18 U.S.C. § 3583(d). The defendant expressly waived reading of these conditions.
The court imposes no fine. The defendant must pay to the United States a special assessment of $100.00, which is due immediately.
The court dismisses the forfeiture allegations of the indictment.
SO ORDERED.