                            NOT FOR PUBLICATION                             FILED
                    UNITED STATES COURT OF APPEALS                       NOV 16 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   16-30261

                Appellee,                       D.C. No.
                                                2:13-cr-00052-WFN-1
v.

MAXWELL DELVON JONES, AKA                       MEMORANDUM*
Money

                Defendant-Appellant.

                  Appeal from the United States District Court
                     for the Eastern District of Washington
                 Wm. Fremming Nielsen, District Judge, Presiding

                      Argued and Submitted October 5, 2017
                              Seattle, Washington

Before: LIPEZ,** WARDLAW, and OWENS, Circuit Judges.

      In November 2014, the district court sentenced Maxwell Jones to 144 months’

imprisonment on three counts of being a felon in possession of a firearm. We

vacated that sentence in May 2016 because the district court improperly relied on



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.

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three of Jones’s uncounseled prior convictions in fashioning his sentence. United

States v. Jones, 653 F. App’x 861, 862 (9th Cir. 2016) (mem.) (Jones I). In

remanding the case for resentencing, we observed that Jones had been convicted and

sentenced on state robbery charges that were pending at the time of his initial

sentencing, and instructed the district court that it could consider this intervening

sentence as a “prior sentence” to calculate Jones’s criminal history category. Id.

The district court resentenced Jones and imposed an 84-month term of

imprisonment, a six-month upward departure from the guideline range of 63 to 78

months. In pronouncing sentence, the court referenced Jones’s prior uncounseled

convictions, stating that Jones had “a couple of assault convictions,” “a couple of

convictions for drug distribution, [and] possession of stolen property.”           Jones

appeals, arguing that the district court once again relied on his prior uncounseled

convictions, and also erred by adding his intervening sentence to his criminal history

score. We affirm.

                                Intervening Sentence

      The district court did not err by including Jones’s intervening state sentence

in calculating his criminal history score. In Jones I, we explicitly advised the district

court that it could consider the sentence for that purpose. 653 F. App’x at 862. Our

instruction was consistent with the Sentencing Guidelines and with Ninth Circuit

case law. See U.S.S.G. §§ 4A1.1, 4A1.2(a)(1) & cmt. n.1; United States v. Klump,



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57 F.3d 801, 802 (9th Cir. 1995). Jones urges us to revisit our rule that district courts

may consider “post-sentencing sentence[s]” at resentencing hearings. Klump, 57

F.3d at 803. We have no occasion to reexamine Klump, however, as “one three-

judge panel of this court cannot reconsider or overrule the decision of a prior panel.”

United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).

      Nor does the district court’s decision to consider Jones’s intervening sentence

violate the constitutional prohibition on ex post facto laws. U.S. Const. art. I, § 9,

cl. 3; art. I, § 10, cl. 1. The Ex Post Facto Clause “is aimed at laws that ‘retroactively

alter the definition of crimes or increase the punishment for criminal acts.’” Cal.

Dep’t of Corr. v. Morales, 514 U.S. 499, 504 (1995) (quoting Collins v. Youngblood,

497 U.S. 37, 43 (1990)). Jones can point to no such law, as his punishment increased

due to a change in facts—namely, his state court sentencing based on conduct

predating his original federal sentencing—not a change in law.

                              Uncounseled Convictions

      We review the district court’s consideration of Jones’s prior uncounseled

convictions for plain error because Jones did not object during his resentencing

hearing. Fed. R. Crim. P. 52(b); see also United States v. Olano, 507 U.S. 725, 731

(1993). Plain error review has four components. First, there must “indeed be an

‘error’”; that is, a non-waived “[d]eviation from a legal rule.” Olano, 507 U.S. at

732−33. Second, the error must be “plain.” Id. at 734. “‘Plain’ is synonymous with



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‘clear’ or, equivalently, ‘obvious.’” Id. Third, the appellant must demonstrate that

the plain error affected his substantial rights. Id. In sentencing appeals, this requires

showing “a reasonable probability that he would have received a different sentence”

but for the error. United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008).

Finally, courts of appeals typically “correct a plain forfeited error affecting

substantial rights” only if “the error ‘seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.’” Olano, 507 U.S. at 736 (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936)).

      Jones satisfies the first two Olano factors, as the district court plainly erred

when it considered his constitutionally infirm prior convictions. See United States

v. Bryant, 136 S. Ct. 1954, 1962 (2016); United States v. Tucker, 404 U.S. 443,

448−49 (1972). However, Jones has not demonstrated that the district court’s error

affected his substantial rights. Even discounting Jones’s uncounseled convictions,

his criminal history is long and serious by any measure. It includes convictions for

resisting arrest, second-degree robbery, possession of a stolen firearm, conspiracy to

possess oxycodone, and first-degree robbery. Furthermore, district courts may take

the conduct underlying a constitutionally infirm prior conviction into account when

imposing sentence. E.g., United States v. Williams, 782 F.2d 1462, 1467 (9th Cir.

1985). Our review of the sentencing transcript indicates that the district court placed

significant weight on Jones’s history of serious criminal conduct. Lastly, the district



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court justified its sentence on factors unrelated to Jones’s criminal history, including

the seriousness of his offense conduct. For these reasons, Jones has not shown “a

reasonable probability that he would have received a different sentence” but for the

district court’s plain error. Waknine, 543 F.3d at 554.

      AFFIRMED.




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