                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-14-2005

USA v. Jones
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2277




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                                            NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT




                     No. 03-2277


          UNITED STATES OF AMERICA

                          v.

         ANTHONY BERNARDLY JONES,
              a/k/a TONY JONES

                  Anthony B. Jones,
                              Appellant


    On Appeal from the United States District Court
        for the Eastern District of Pennsylvania
              (D.C. Crim. No. 02-cr-00778)
    District Judge: Honorable Ronald L. Buckwalter




      Submitted Under Third Circuit LAR 34.1(a)
                 September 12, 2005

Before: SLOVITER, BARRY and SMITH, Circuit Judges

             (Filed: September 14, 2005)




                      OPINION
SLOVITER, Circuit Judge.

       Anthony Bernardly Jones, who was convicted following a jury trial of bank

robbery in violation of 18 U.S.C. § 2113 and of use of a firearm during this robbery in

violation of 18 U.S.C. § 924(c), appeals from the judgment of sentence.1

                                              I.

       Because the parties are familiar with the factual and procedural background of this

case, we refer only to those facts that are pertinent to our disposition. The District Court

sentenced Jones to a term of one-hundred months imprisonment on the § 2113 bank

robbery charge and a consecutive sentence of eighty-four months on the § 924(c) firearm

charge.2

       In determining Jones’ sentence for the bank robbery conviction, the District Court

used the 2003 edition of the United States Sentencing Guidelines.3 In so doing, the



                    1
                     The District Court had jurisdiction pursuant to 18 U.S.C.
            § 3231; this court has jurisdiction pursuant to 28 U.S.C. § 1291.
                    2
                    The District Court further imposed a five-year term of
            supervised release, as well as restitution and a special assessment.
                    3
                      Under that edition of the Sentencing Guidelines, “the
            guideline sentence [for a § 924(c) conviction] is the minimum term
            of imprisonment required by statute.” U.S.S.G. § 2K2.4(b) (2003).
            Therefore, the District Court did not use the Guidelines in
            ascertaining Jones’ sentence for the firearm conviction. Rather,
            because it found that Jones had “brandished” the weapon, the
            District Court imposed the statutory mandatory minimum sentence
            of eighty-four months as per 18 U.S.C. § 924(c)(1)(A)(ii). See
            generally Harris v. United States, 536 U.S. 545 (2002).

                                              2
District Court added two points to Jones’ offense level on the basis of its finding that

Jones, who had testified in his own defense at trial, had lied under oath and thus

obstructed justice. See U.S.S.G. § 3C1.1 (2003). The District Court further added two

points to Jones’ offense level because Jones had robbed a “financial institution,” see

U.S.S.G. § 2B3.1(b)(1) (2003), and one additional point because the loss amount

exceeded $10,000, see U.S.S.G. § 2B3.1(b)(7)(B) (2003).

       Jones thereafter appealed. Jones does not challenge his conviction in any respect.

Instead, relying on the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296

(2004), Jones argues that the District Court improperly enhanced his “maximum

allowable sentence under the federal sentencing guidelines on the basis of facts not found

by the jury beyond a reasonable doubt” and thereby violated his rights under the Sixth

Amendment to the United States Constitution. Appellant’s Br. at 3.

                                             II.

       After Jones filed his appellate brief, the Supreme Court issued its opinions in

United States v. Booker, 543 U.S.      , 125 S. Ct. 738 (2005). As this court discussed in

more detail in United States v. Davis, 407 F.3d 162 (3d Cir. 2005) (en banc), the Supreme

Court in Booker held that “the Sixth Amendment as construed in Blakely does apply to

the [United States] Sentencing Guidelines.” Booker, 543 U.S. at         , 125 S. Ct. at 746

(Stevens, J.). Booker was decided by two opinions of the Court. In the first opinion,

authored by Justice Stevens for a majority of five, the Court reaffirmed the constitutional



                                              3
holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), that “[a]ny fact (other than a

prior conviction) which is necessary to support a sentence exceeding the maximum

authorized by the facts established by a plea of guilty or a jury verdict must be admitted

by the defendant or proved to a jury beyond a reasonable doubt,” and extended that rule

to the United States Sentencing Guidelines. Booker, 543 U.S. at         , 125 S. Ct. at 756

(Stevens, J.). The second opinion, authored by Justice Breyer for a majority of five,

focused on the remedy. The Court held that 18 U.S.C. § 3553(b)(1), the provision of the

Sentencing Reform Act of 1984 that made the Guidelines mandatory, was incompatible

with the Court’s constitutional ruling; thus, the Court severed and excised § 3553(b)(1).

Booker, 543 U.S. at       , 125 S. Ct. at 764 (Breyer, J.). Similarly, 18 U.S.C. § 3742(e),

“the provision that set[ ] forth standards of review on appeal, including de novo review

of departures from the applicable Guidelines range,” was also severed and excised

because it contained critical cross-references to the section that made the Guidelines

mandatory. 543 U.S. at       , 125 S. Ct. at 764 (Breyer, J.). The net result was to delete

the mandatory nature of the Guidelines and transform them into advisory guidelines.

       The sentencing issues Jones has raised with this court have been essentially

subsumed by the Booker holdings. Furthermore, this court has previously held that post-

Booker sentencing issues raised on direct appeal are best determined by the district courts

in the first instance. See United States v. Davis, 397 F.3d 173, 183 (3d Cir. 2005) (“In

light of the determination of the judges of this court that the sentencing issues appellants



                                              4
raise are best determined by the District Court in the first instance, we vacate the

sentences and remand for resentencing in accordance with Booker.”), reh’g denied, 407

F.3d 162 (3d Cir. 2005) (en banc); see also United States v. Ordaz, 398 F.3d 236, 239 (3d

Cir. 2005). In accordance with this precedent, we will reverse Jones’ judgment in a

criminal case insofar as it pertains to his sentence and will remand to the District Court

for resentencing in accordance with Booker.

                                             III.

       For the reasons stated above, we will affirm Jones’ conviction, vacate his sentence,

and remand for resentencing.
