                           RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit Rule 206
                                       File Name: 07a0209p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT
                                     _________________


                                                      X
                                Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 06-5551
           v.
                                                       ,
                                                        >
 CLIMMIE JONES, JR.,                                   -
                              Defendant-Appellant. -
                                                       -
                                                       -
                                                       -
                                                      N
                       Appeal from the United States District Court
                     for the Middle District of Tennessee at Nashville.
                  No. 96-00017—Todd J. Campbell, Chief District Judge.
                                     Argued: April 26, 2007
                                Decided and Filed: June 5, 2007
                    Before: MOORE, COLE, and ROGERS, Circuit Judges.
                                       _________________
                                           COUNSEL
ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, Nashville, Tennessee,
for Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF DAVID L.
COOPER, Nashville, Tennessee, for Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
                                       _________________
                                           OPINION
                                       _________________
         KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant Climmie Jones, Jr.
(“Jones”), was convicted by a jury of twenty-one drug and firearms charges. After two prior appeals
and remands for resentencing and other proceedings, Jones now appeals his latest sentence of 168
months in prison, six years of supervised release, and a $1,050 special assessment. Jones argues
through counsel that the district court erred by applying the preponderance-of-the-evidence standard
for judicial fact-finding during sentencing and that his sentence was procedurally and substantively
unreasonable. Jones also argues pro se that he was denied the right to represent himself, that the
district court erred in calculating the length of two of his twenty-one concurrent six-year terms of
supervised release, that his sentence violated the Double Jeopardy Clause, that he was denied access


                                                 1
No. 06-5551               United States v. Jones                                                               Page 2


to certain documents, and that he received ineffective assistance of counsel. Because the length of
Jones’s two terms of supervised release for his two firearms convictions exceeds the statutory
maximum, and because eight of Jones’s convictions subjected him to multiple punishments in
violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and
REMAND for the limited purpose of entering an amended judgment that remedies these two errors.
                                              I. BACKGROUND
        In 1996, a federal jury convicted Jones of one count of conspiracy to distribute cocaine and
cocaine base, in violation of 21 U.S.C. § 846; nine counts of possession with intent to distribute
cocaine base, in violation of 21 U.S.C. § 841(a)(1); seven counts of distribution of cocaine base
within 1000 feet of a school, in violation of 21 U.S.C. § 860; one count of aiding and abetting
distribution of cocaine base, in violation of 18 U.S.C. § 2; one count of aiding and abetting
distribution of cocaine base within 1000 feet of a school, in violation of 18 U.S.C. § 2; one count
of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and one count of being
a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Jones was sentenced to 262
months in prison, ten years of supervised release, and a $1,050 special assessment, and he appealed
on numerous grounds. On November 6, 1998, we affirmed the judgment of the district court in part,
reversed in part, and remanded the case to the district court for resentencing and in order to allow
Jones to pursue a claim of selective prosecution. United States v. Jones (Jones I), 159 F.3d 969 (6th
Cir. 1998).
        After discovery on remand, Jones moved to dismiss the indictment for selective prosecution
and moved for a new trial. On July 13, 2000, before the district court ruled on Jones’s motions,
Jones was declared incompetent to proceed. On January 4, 2002, Jones was declared competent,
and, on August 27, 2002, the district court denied his motion to dismiss the indictment and his
motion for a new trial. Jones was resentenced, this time to 210 months in prison, six years of
supervised release, and a $1,050 special assessment, and he again appealed on numerous grounds.
On March 3, 2005, we affirmed the judgment of the district court in most respects, but vacated
Jones’s sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220
(2005). United States v. Jones (Jones II), 399 F.3d 640 (6th Cir. 2005). On October 3, 2005, the
United States Supreme Court denied Jones’s petition for certiorari. Jones v. United States, --- U.S.
---, 126 S. Ct. 148 (2005).
        Jones made a number of motions in the district court on the second remand, both through
counsel and pro se, the relevant details of which we discuss in greater detail below. On April 10,
2006, the district court held a third sentencing hearing, at which Jones was sentenced to 168 months
in prison, six years of supervised release, and a $1,050 special assessment. The district court also
issued an order entitled “Rule 32(c)(1) Findings and Determinations Regarding Objections to
Presentence Investigation Report,” in which the district court addressed in greater detail a number1
of sentencing issues raised by Jones and the government. Jones timely appealed through counsel.
                                                 II. ANALYSIS
A. Right to Self-Representation at Sentencing
       Although the main focus of Jones’s current appeal is on challenges to the district court’s
sentencing determination, we must first address two preliminary matters. Acting pro se, Jones first
argues that he was denied his constitutional and statutory right to self-representation during pre-
sentencing proceedings and at sentencing on the second remand. This court reviews de novo the

         1
         Jones also filed a timely notice of appeal pro se, which resulted in Sixth Circuit Case No. 06-5549. The appeal
in Case No. 06-5549 was dismissed as duplicative.
No. 06-5551           United States v. Jones                                                      Page 3


legal question of the scope of the right to self-representation. United States v. Cromer, 389 F.3d
662, 679 (6th Cir. 2004).
        Jones asserts that during a status conference on November 9, 2005, he informed the district
court that he wished to represent himself. The district court informed Jones that he could submit
motions on his own behalf, but that counsel would be appointed for him and that he could resubmit
his request to the district court if he later did not wish to be represented by counsel. On January 7,
2006, Jones sent to the district court a letter along with a number of motions making clear that he
wished to represent himself. Thereafter, Jones filed numerous motions in the district court,
introduced evidence during the sentencing hearing, and made arguments on his own behalf during
the sentencing hearing, but continued to be represented by counsel as well. The district court never
ruled on Jones’s request to represent himself.
        In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that the Sixth
Amendment guaranteed a criminal defendant the right to represent himself or herself at trial. Id. at
832. Criminal defendants in federal courts also have a statutory right to “plead and conduct their
own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to
manage and conduct causes therein.” 28 U.S.C. § 1654. Thus, we may safely say that a criminal
defendant in federal court has a right to represent himself or herself at sentencing. See United States
v. Shanklin, 193 F. App’x 384, 387-88 (5th Cir. 2006) (unpublished opinion), cert. denied, --- U.S.
---, 127 S. Ct. 1009 (2007); United States v. Estrada, 25 F. App’x 814, 819 (10th Cir.) (unpublished
order), cert. denied, 535 U.S. 1010 (2002). But cf. United States v. Hyman, No. 96-4855, 1998 WL
200320, at *3 (4th Cir. Apr. 27, 1998) (unpublished opinion) (concluding that once a defendant has
proceeded to trial with counsel, the decision whether to grant the defendant’s request to proceed pro
se at sentencing lies within the discretion of the district court).
       The exact contours of the right to self-representation, however, depend on the nature of the
proceeding. In Faretta, the Supreme Court noted that a trial court “may—even over objection by
the accused—appoint a ‘standby counsel.’” Faretta, 422 U.S. at 834 n.46; see also United States
v. Walsh, 742 F.2d 1006, 1006-07 (6th Cir. 1984). In McKaskle v. Wiggins, 465 U.S. 168 (1984),
the Court further defined the permissible role of standby counsel:
               First, the pro se defendant is entitled to preserve actual control over the case
       he chooses to present to the jury. This is the core of the Faretta right. If standby
       counsel's participation over the defendant's objection effectively allows counsel to
       make or substantially interfere with any significant tactical decisions, or to control
       the questioning of witnesses, or to speak instead of the defendant on any matter of
       importance, the Faretta right is eroded.
               Second, participation by standby counsel without the defendant's consent
       should not be allowed to destroy the jury's perception that the defendant is
       representing himself. The defendant's appearance in the status of one conducting his
       own defense is important in a criminal trial, since the right to appear pro se exists to
       affirm the accused's individual dignity and autonomy.
Id. at 178. In proceedings outside the presence of a jury, the Court reasoned, only the first of these
concerns is applicable. Id. at 179. In such proceedings, therefore, the defendant’s right to self-
representation is satisfied “if the pro se defendant is allowed to address the court freely on his own
behalf and if disagreements between counsel and the pro se defendant are resolved in the
defendant’s favor whenever the matter is one that would normally be left to the discretion of
counsel.” Id. (footnote omitted). Because Jones’s sentencing and all relevant pre-sentencing
proceedings took place outside the presence of a jury, Jones’s right to self-representation is limited
accordingly.
No. 06-5551           United States v. Jones                                                    Page 4


        In the proceedings below, Jones was allowed to submit multiple motions to the district court,
introduce evidence and make arguments at the sentencing hearing, and address the court on his own
behalf. Jones’s appointed counsel made other motions on Jones’s behalf, but the record does not
reveal any instances in which Jones and his counsel disagreed on strategy or Jones’s counsel
undermined Jones’s arguments. Cf. id. at 180-81 (concluding that a defendant was not denied his
right to self-representation even though counsel, outside the jury’s presence, “made motions,
dictated proposed strategies into the record, registered objections to the prosecution’s testimony,
urged the summoning of additional witnesses, and suggested questions that the defendant should
have asked of witnesses”); Walsh, 742 F.2d at 1007 (concluding that a defendant was not denied his
right to self-representation by the appointment of advisory counsel because “there seems to be no
sign of conflict between counsel and defendant, and . . . the defendant does not argue that he was
prevented from executing any strategy he chose”). Moreover, Jones did not object to any of the
motions or arguments made by his counsel. See Wiggins, 465 U.S. at 182 (“Even when he insists
that he is not waiving his Faretta rights, a pro se defendant’s solicitation of or acquiescence in
certain types of participation by counsel substantially undermines later protestations that counsel
interfered unacceptably.”). In sum, we conclude that the record does not reveal any instances in
which Jones was denied his right to self-representation at sentencing, despite the presence of
counsel.
        We observe, however, that the district court may have erred in this case by not ruling on
Jones’s request to represent himself. We have held that once a defendant has “clearly and
unequivocally asserted his right to proceed pro se,” as Jones did, the district court must give the
defendant particular warnings designed to ensure that the defendant’s waiver of counsel is knowing
and voluntary. Cromer, 389 F.3d at 679-80, 682. Thus, had Jones and his counsel conflicted on
questions of strategy, for example, reversal may have been warranted: if the district court resolved
the conflict in favor of counsel, Jones’s right to self-representation would have been violated; and
if the district court resolved the conflict in favor of Jones, we would likely conclude that he had
represented himself without knowingly and voluntarily waiving the right to counsel. The
circumstances of this case demonstrate that Jones was not denied his right to self-representation, but
we note that similar errors by a district court may very well require reversal in different
circumstances.
B. Request for Copies of Documents
         Jones also argues pro se that the district court erred by refusing to allow him to copy certain
documents from the record in order to help him prepare his sentencing arguments. It is difficult to
determine the legal basis for Jones’s argument and the appropriate standard of review, but Jones’s
claim fails even under de novo review. On July 11, 2005, Jones, acting pro se, filed a request for
certain legal documents. On July 12, the district court denied the request “without prejudice to
Defendant refiling the requests through his court-appointed counsel.” District Court Record Entry
605 (“R. 605”). On November 9, 2005, Jones, again acting pro se, renewed his previous request.
On December 14, the district court granted Jones’s request in part and denied it in part. The district
court reasoned that “[b]ecause the requested documents are voluminous, many of which are also
under seal, the documents cannot be mailed to Defendant Jones at this time.” R. 620. However, the
district court ordered that Jones be transported to the courthouse to review and inspect the requested
documents and noted that Jones could ask for selected copies at that time. On January 20, 2006,
Jones, through counsel, made a motion to continue the sentencing hearing set for February 3, 2006,
because Jones had not yet been given the opportunity to review and inspect the requested
documents. That same day, the district court granted the motion and rescheduled the sentencing
hearing for April 10, 2006. Thus, Jones was given the opportunity to review and inspect the
requested documents. Jones has not argued that he was given insufficient time to review the
documents and has not pointed to any documents that he was not allowed to review. It appears that
No. 06-5551             United States v. Jones                                                            Page 5


Jones received all the relief that he requested and, accordingly, we conclude that the district court
did not err.
C. Standard for Judicial Fact-Finding in Sentencing
        We next turn to Jones’s challenges to the district court’s sentencing determination. Jones
argues through counsel that the district court violated his due process rights by using a
preponderance-of-the-evidence standard to determine that the quantity of cocaine base that he
possessed and distributed was 18.3 grams. We have previously determined that “judicial fact-
finding in sentencing proceedings using a preponderance of the evidence standard post-Booker does
not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by
jury.” United States v. Gates, 461 F.3d 703, 708 (6th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 602
(2006); see also United States v. Barton, 455 F.3d 649, 657-58 (6th Cir.), cert. denied, --- U.S. ---,
127 S. Ct. 748 (2006); United States v. Green, 181 F. App’x 506, 507-09 (6th Cir. 2006) (concluding
that the district court did not violate the Due Process Clause by using a preponderance-of-the-
evidence standard to determine the quantity of drugs for which a defendant was responsible).
Accordingly, we conclude that the district court did not err by using a preponderance-of-the-
evidence standard.
D. Reasonableness of Jones’s Sentence
       Jones also argues through counsel that his sentence was procedurally and substantively
unreasonable. On appeal, we must determine whether a district court’s sentencing determination
was reasonable. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, --- U.S. ---,
126 S. Ct. 1110 (2006). Reasonableness has both substantive and procedural components, and
accordingly, we consider “not only the length of the sentence but also the factors evaluated and the
procedures employed by the district court in reaching its sentencing determination.” Id.; accord
United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006); United States v. Richardson, 437 F.3d
550, 553-54 (6th Cir. 2006).
       1. Procedural Reasonableness
       “A sentence may be procedurally unreasonable if ‘the district judge fails to “consider” the
applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a),
and instead simply selects what the judge deems an appropriate sentence without such required
consideration.” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting Webb, 403
F.3d at 383). Furthermore, when “a defendant raises a particular argument in seeking a lower
sentence, the record must reflect both that the district judge considered the defendant’s argument
and that the judge explained the basis for rejecting it.” Richardson, 437 F.3d at 554.
         Jones asserts through counsel that “the district court erred when it failed to consider certain
mitigating factors for purposes of sentencing under 18 U.S.C. § 3553(a).” Appellant’s Br. at 22.
However, Jones does not actually identify any factors that the district court did not consider. Both
the transcript of the sentencing hearing and the Rule 32(c)(1) Order reflect that the district court
noted every one of the approximately twenty arguments that Jones made, either through counsel or
pro se, in support of a sentence below the Guidelines range. The district court did not make specific
determinations as to why each of the twenty arguments did not warrant a sentence below the2
Guidelines range, but generally relied on Jones’s “history of violence and threats of violence.”

       2
        The district court detailed Jones’s history of violence:

       The Court is mindful of the danger that Mr. Jones has presented to the community of Rutherford
       County, Murfreesboro, Tennessee and that is set forth in paragraphs 11, 16, 17, 51 and 87 of the
No. 06-5551               United States v. Jones                                                                   Page 6


Joint Appendix (“J.A.”) at 192 (4/10/06 Sentencing Hr’g at 101); J.A. at 293-94 (Dist. Ct. Rule
32(c)(1) Order at 4-5). In its Rule 32(c)(1) Order, the district court explicitly linked this
determination to a number of relevant § 3553(a) factors, noting that a sentence below the Guidelines
range “would not reflect the ‘history and characteristics’ of the Defendant or ‘the seriousness of the
offense’; provide ‘just punishment’; ‘afford adequate deterrence to criminal conduct’; or ‘protect
the public from further crimes of the Defendant.’” J.A. at 294 (Dist. Ct. Rule 32(c)(1) Order at 5);
see also 18 U.S.C. § 3553(a). Moreover, the record reflects that the district court did take many of
Jones’s arguments into account in deciding to sentence him to a sentence at the bottom of the
Guidelines range:
         [I]n the opinion of the Court, I think Mr. Jones is a different man today than he was
         in 1995. I think he has undergone efforts towards rehabilitation. Seems to be turning
         his life around, and I am going to sentence Mr. Jones in the guideline range, but in
         the opinion of the Court, he should not be sentenced at the top of the range in that he
         is a different man than he was when he has been here twice before, and I am going
         to sentence him at the low end of the guideline range that I have determined that’s
         applicable.
J.A. at 192-93 (4/10/06 Sentencing Hr’g at 101-02). The record reflects that the district court
considered all of Jones’s arguments, the applicable Guidelines range, and the relevant § 3553(a)
factors, and we therefore conclude that Jones’s sentence was procedurally reasonable.
         2. Substantive Reasonableness
         The thrust of Jones’s reasonableness argument appears to be that, although the district court
considered the appropriate factors, the district court gave too little weight to certain mitigating
factors and thus sentenced Jones to more time in prison than was warranted—that is, that the
sentence is substantively unreasonable. “[A] sentence may [be] substantively unreasonable where
the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors,
fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any


         presentence report.

         Mr. Jones was arrested at a shopping mall with two fully loaded handguns and wearing a bulletproof
         vest. That is paragraph 11.

         Paragraph 16, he instructed a confidential informant to deliver a message to a law enforcement officer,
         Lieutenant McCullough. The message was, tell Mickey I have two more guns and another bulletproof
         vest.

         Such a threat to law enforcement is a very serious matter. And the Court has already gone on record
         of the opinion that the threat was a motivating factor, in part, for any selection of Mr. Jones for
         prosecution.

         Paragraph 17, Mr. Jones is threatening to kill a confidential informant.

         Paragraph 51 recounts about loaded weapons in the possession of Mr. Jones at the time of his arrest.

         Paragraph 87 recounts the incident of Mr. Collier, Mr. Jones’ loaded shotgun in the presence of Mr.
         Collier and showed him knives and told him his family would be killed if certain actions weren’t
         taken.

Joint Appendix (“J.A.”) at 293-94 (Dist. Ct. Rule 32(c)(1) Order at 4-5) (quoting 7/28/03 Resentencing Hr’g at 142-43).
No. 06-5551                 United States v. Jones                                                                     Page 7


pertinent factor.’”3 Ferguson, 456 F.3d at 664 (quoting Webb, 403 F.3d at 385) (third through sixth
alterations in original). Because Jones was sentenced within the applicable Guidelines range, his
sentence is credited with a “rebuttable presumption of reasonableness.” United States v. Williams,
436 F.3d 706, 708 (6th Cir.), petition for cert. filed, No. 06-5275 (July 11, 2006).
         Jones argues that the district court erred by not giving sufficient weight to six mitigating
factors: 1) that Jones was subjected to racially discriminatory conduct by the police, see Jones I,
159 F.3d at 975-76 (describing in detail the “undeniably shameful” conduct of the police); 2) that
distribution or possession of a particular amount of cocaine base carries the same Guidelines range
as distribution or possession of one hundred times that amount of powder cocaine (often referred to
as the 100:1 crack to cocaine ratio); 3) that Jones had been incarcerated in local jails for much of his
prison term; 4) that Jones had demonstrated significant post-sentencing rehabilitation; 5) that Jones
had a mental condition that required treatment; and 6) that similarly situated defendants had received
lesser sentences. At least two of these factors do not lend significant support for a reduced sentence.
First, it is difficult to see how the conduct of the police, however unprofessional it was, justifies a
reduced sentence under the § 3553(a) factors. Second, we have previously determined that
“applying the [100:1 crack to cocaine] ratio does not, ipso facto, make a sentence unreasonable
under existing case law,” United States v. Caver, 470 F.3d 220, 249 (6th Cir. 2006), and, like the
defendant in Caver, Jones “has not demonstrated that the 100:1 ratio was unreasonable in his case,”
id.
        The remaining factors do lend some support for a reduced sentence. Jones testified that his
incarceration in local jails for much of his imprisonment thus far offered fewer services and was
“extremely more harsh” than it would have been in federal prison, J.A. at 178-80 (4/10/06
Sentencing Hr’g at 46-48), indicating that a reduced sentence may “provide just punishment,” 18
U.S.C. § 3553(a)(2)(A). Jones detailed his efforts at rehabilitation, indicating that a reduced
sentence may be adequate “to protect the public from further crimes of the defendant,” 18 U.S.C.
§ 3553(a)(2)(C), and “to provide the defendant with . . . other correctional treatment in the most
effective manner,” 18 U.S.C. § 3553(a)(2)(D). Jones described his mental condition and treatment,
providing further support that a reduced sentence may provide him with the most appropriate
correctional treatment. 18 U.S.C. § 3553(a)(2)(D). Finally, Jones presented the profiles of five
defendants who pleaded guilty to similar charges and received sentences of less prison time, which
may provide some support for the argument that a reduced sentenced may be appropriate “to avoid
unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6).




         3
            In Webb, the case in which we first set forth the proper scope of reasonableness review post-Booker, we did
not use the term “substantive.” In United States v. McBride, 434 F.3d 470 (6th Cir. 2006), we first described our holding
in Webb as setting forth “both substantive and procedural components to our reasonableness review,” id. at 475 n.3, but
we did not set forth what each component entailed. In Ferguson, we first delineated which aspects of our reasonableness
review, as set forth in Webb, are part of the procedural component and which aspects are part of the substantive
component. Ferguson, 456 F.3d at 664. In many ways, the procedural and substantive components, as delineated by
Ferguson and subsequent cases, appear to overlap. Compare e.g., id. (“A sentence may be procedurally unreasonable
if ‘the district judge . . . neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a) . . . .’” (quoting Webb, 403
F.3d at 383)), with id. (“[A] sentence may [be] substantively unreasonable where the district court ‘. . . fail[s] to consider
pertinent § 3553(a) factors . . . .’” (quoting Webb, 403 F.3d at 385) (third alteration in original)). We are, of course,
currently bound by the delineation set forth in Ferguson and subsequent cases, see Salmi v. Sec’y of Health & Human
Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 206(c) (“Reported panel opinions are binding on subsequent
panels.”), but regardless of how the components are delineated, we are primarily bound by the requirement set forth in
Webb, the earliest of these cases, that we consider both “the length of the sentence” and “the factors evaluated and the
procedures employed by the district court in reaching its sentencing determination,” Webb, 403 F.3d at 383.
No. 06-5551                United States v. Jones                                                                  Page 8


       The district court determined that Jones’s history of violence and threats of violence
counterbalanced Jones’s mitigating evidence and militated in favor of a within-Guidelines sentence
and that Jones’s mitigating evidence justified a sentence at the bottom of the applicable Guideline
range, but no lower. Although Jones’s mitigating evidence might warrant a below-Guidelines
sentence in some circumstances, we cannot say that the district court gave an unreasonably large
amount of weight to Jones’s significant history of violence or an unreasonably small amount of
weight to Jones’s mitigating arguments. Accordingly, we conclude that his sentence was
substantively reasonable.
E. Length of Two Terms of Supervised Release
       Acting pro se, Jones argues that the district court erred by sentencing him to two six-year
terms of supervised release for his two firearms convictions, counts twenty and twenty-one of the
superseding indictment. We review de novo the district court’s interpretation of a federal statute and
the Sentencing Guidelines. United States v. Palacios-Suarez, 418 F.3d 692, 694 (6th Cir. 2005).
         The district court sentenced Jones to twenty-one separate six-year terms of supervised
release, to run concurrently. Jones does not challenge nineteen of those terms, but argues that the
maximum term of supervised release that he could receive for each of his two firearms convictions
is three years. Jones was convicted of one count of possession of an unregistered firearm, in
violation of 26 U.S.C. § 5861(d), and one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). Because each of these charges carries a maximum penalty of ten
years in prison, 26 U.S.C. § 5871; 18 U.S.C. § 924(a)(2), these two convictions are classified as
Class C felonies, 18 U.S.C. § 3559(a)(3). By statute, the maximum term of supervised release for
a Class C felony is three years. 18 U.S.C. § 3583(b)(2); see also U.S.S.G. § 5D1.2(a)(2). Thus, we
conclude that the district court erred by sentencing Jones to two six-year terms of supervised release
for his two firearms convictions.4
F. Double Jeopardy
        Acting pro se, Jones also argues that his sentence violated the Double Jeopardy Clause of
the Fifth Amendment because eight of his convictions for violating 21 U.S.C. § 841(a)(1) were
lesser-included offenses of his eight convictions for violating 21 U.S.C. § 860. We review questions
of double jeopardy de novo. United States v. DeCarlo, 434 F.3d 447, 452 (6th Cir. 2006).
        Under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), if the same act
constitutes a violation of two statutory provisions, the Double Jeopardy Clause prohibits punishing
a defendant for both violations unless “each provision requires proof of an additional fact which the
other does not.” Id. at 304. Title 21 U.S.C. § 860 calls for increased penalties for “[a]ny person who
violates section 841(a)(1) of this title . . . by distributing, possessing with intent to distribute, or
manufacturing a controlled substance in or on, or within one thousand feet of” a school. 21 U.S.C.
§ 860(a). By the explicit terms of § 860, then, § 841(a)(1) is a lesser-included offense. Section
841(a)(1) does not require proof of any additional facts beyond what § 860 requires, and, therefore,
the Double Jeopardy Clause prohibits punishing a defendant for violating both § 841(a)(1) and
§ 860. See United States v. Jackson, 443 F.3d 293, 300-02 (3d Cir. 2006); United States v.
Carpenter, 422 F.3d 738, 747 (8th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 1115 (2006);
United States v. White, 240 F.3d 127, 132-33 (2d Cir. 2001); United States v. Kakatin, 214 F.3d
1049, 1051 (9th Cir.), cert. denied, 531 U.S. 911 (2000); United States v. Freyre-Lazaro, 3 F.3d


         4
          We note that it appears that the district court’s conclusion on this point was simply oversight. In both of the
previous sentencing decisions in this case, the district court sentenced Jones to two three-year terms of supervised release
for his two firearms convictions, the maximum authorized by statute.
No. 06-5551               United States v. Jones                                                               Page 9


1496, 1507 (11th Cir. 1993), cert. denied, 511 U.S. 1011 (1994); United States v. Scott, 987 F.2d
261, 266-67 (5th Cir. 1993).
        The superseding indictment makes clear that eight of Jones’s convictions for violating
§ 841(a)(1) were for the same acts as his eight convictions for violating § 860. In counts two, four,
seven, nine, eleven, thirteen, fifteen, and eighteen, Jones was charged with possessing and
distributing a particular quantity of drugs on a particular day, in violation of § 841(a)(1), and in
counts three, five, eight, ten, twelve, fourteen, sixteen, and nineteen, Jones was charged with
possessing and distributing the same quantity of drugs on the same day within 1000 feet of a school,
in violation of § 860. The government is permitted to charge lesser-included offenses, but Jones
could not constitutionally be convicted and sentenced under both § 841(a)(1) and § 860 for the same
acts. See DeCarlo, 434 F.3d at 456. Even though Jones received concurrent sentences under
§ 841(a)(1) and § 860 for these charges, his convictions on counts two, four, seven, nine, eleven,
thirteen, fifteen, and eighteen must be vacated because, as the Supreme Court has noted, the $50
special assessment5 on each conviction amounts to unconstitutional multiple punishments, and the
extra convictions hold the potential for adverse collateral consequences. Id. at 457 (citing Rutledge
v. United States, 517 U.S. 292, 302 (1996)).
G. Ineffective Assistance of Counsel
        Finally, Jones argues pro se that he received ineffective assistance of trial counsel. In order
to succeed on these claims, Jones must show that his counsel was deficient and that the deficiency
prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). We ordinarily will not rule
on ineffective assistance of counsel claims raised on direct appeal because the record has not been
sufficiently developed to review such claims, see United States v. Wagner, 382 F.3d 598, 615 (6th
Cir. 2004), but because Jones’s ineffective assistance of counsel claims are predicated on three
underlying claims resolved on the merits here, we can resolve Jones’s ineffective assistance of
counsel claims as well.
        Jones argues that his counsel was ineffective for not raising three of the claims discussed
above: that Jones was entitled to represent himself; that the district court erred by sentencing Jones
to two six-year terms of supervised release for his two firearms convictions; and that Jones was
subjected to multiple punishments in violation of the Double Jeopardy Clause. Because we are
granting Jones relief on his supervised-release and double-jeopardy claims, his ineffective assistance
of counsel claims predicated on these two claims are moot. See United States v. Milledge, 109 F.3d
312, 316 n.2 (6th Cir. 1997). Because we conclude that Jones was not denied the right to represent
himself, it is clear that counsel was not constitutionally ineffective for failing to raise that claim.
See Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). Accordingly,
we conclude that Jones is not entitled to relief on the ineffective assistance of counsel claims that
he has raised.
H. Remedy
        As explained above, Jones is entitled to relief on two issues: 1) the length of his two terms
of supervised release for his two firearms convictions must be reduced from six years to three years;
and 2) his convictions on counts two, four, seven, nine, eleven, thirteen, fifteen, and eighteen must
be vacated, as must the corresponding terms of imprisonment, terms of supervised release, and

         5
           The special assessment was increased to $100 per felony in 1996. See 18 U.S.C. § 3013. However, Jones is
entitled to the benefit of the previous assessment of $50 per felony because he committed his crimes before the increase
and applying the $100 assessment would therefore violate the Ex Post Facto Clause. United States v. Prather, 205 F.3d
1265, 1272 (11th Cir.), cert. denied, 531 U.S. 879 (2000); United States v. Labeille-Soto, 163 F.3d 93, 101-02 (2d Cir.
1998).
No. 06-5551           United States v. Jones                                                Page 10


special assessments. Because these amendments to the district court’s judgment are ministerial in
nature, we believe that a limited remand is appropriate to permit the district court to conform the
judgment to make these two specific corrections. See 28 U.S.C. § 2106 (stating that we “may
remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such
further proceedings to be had as may be just under the circumstances”); see also United States v.
Moore, 131 F.3d 595, 597-98 (6th Cir. 1997) (describing our authority to order a limited remand).
We do not believe that another resentencing hearing would be necessary or appropriate on remand,
as we simply direct the entry of a corrected judgment.
                                       III. CONCLUSION
        Because the length of Jones’s two terms of supervised release for his two firearms
convictions exceeds the statutory maximum, and because eight of Jones’s convictions subjected him
to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of
the district court and REMAND for the limited purpose of entering an amended judgment that
remedies these two errors.
