                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2483




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                                          NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT




                    No. 08-2483


       UNITED STATES OF AMERICA

                         v.

          CHRISTOPHER D. JONES,

                                  Appellant




 On Appeal from the United States District Court
     for the Middle District of Pennsylvania
          (D. C. No. 4-03-cr-00201-001)
       District Judge: Hon. Malcolm Muir


   Submitted under Third Circuit LAR 34.1(a)
               on March 3, 2009

Before: BARRY, WEIS and ROTH, Circuit Judges

          (Opinion filed: June 2, 2009)




                 OPINION
ROTH, Circuit Judge:

       Christopher Jones was convicted of possession with intent to distribute and

distribution of less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). He

was sentenced to 262 months of imprisonment. Jones raises three challenges to his

convictions and two challenges to his sentence. The District Court had jurisdiction

pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

assume the parties’ familiarity with the facts and the record of prior proceedings, which we

describe only as necessary to explain our decision. We will affirm.

       First, Jones contends that the District Court erred in permitting the government to

argue that “movement of the drugs from point A to point B” constituted “distribution” and

that this error mandates vacating his conviction. Jones alleges no defect in either the

indictment or the definition of “distribution” offered in the jury instructions, nor does he

challenge the sufficiency of the evidence with respect to the “possession with intent to

distribute” prong of his conviction; rather, he contends that the government’s closing

arguments regarding “distribution” included misstatements of the law. Arguments,

however, are not evidence, see Fineman v. Armstrong World Indus., Inc., 980 F.2d 171,

210 (3d Cir. 1992), and the District Court properly instructed the jury as follows: “If any

difference appears to you between the law as stated by counsel and that as stated by the

Court in our instructions, you of course are to be governed by the instructions given to you

by the Court.” At most, then, Jones’s complaint is that the government failed to meet its



                                              2
factual burden with respect to “distribution.” Our review of the record demonstrates that

there was ample evidence of possession with intent to distribute. Accordingly, under our

precedents, we must “assume that the jury convicted on the factually sufficient theory [of

possession with intent to distribute] and [must] let the jury verdict stand.” See United

States v. Syme, 276 F.3d 131, 144 (3d Cir. 2002).1

        Second, Jones argues that the District Court abused its discretion in permitting the

government to cross-examine him concerning his two prior felony drug convictions. The

convictions, however, were relevant to impeach Jones’s testimony under Federal Rule of

Evidence 609(a) and probative of his intent under Federal Rule of Evidence 404(b). See

United States v. Greenidge, 495 F.3d 85, 97 (3d Cir. 2007) (noting that similar, recent

prior convictions are more likely to be relevant for purposes of Rule 609(a)); United States

v. Sampson, 980 F.2d 883, 887 (3d Cir. 1992) (citing with approval United States v.

Rocha, 553 F.2d 615, 616 (9th Cir. 1977), in which evidence of prior transportation of

marijuana was admissible to show intent in a subsequent prosecution for possession of

marijuana with intent to distribute). The District Court properly weighed the probative

value of these convictions against the potential prejudice to Jones and did not abuse its

discretion in admitting them.

        Third, Jones argues that he was the victim of racial discrimination when the




    1
   We thus do not reach the question whether transportation of drugs, by itself, could
amount to “distribution” under 21 U.S.C. § 841(a)(1).

                                              3
prosecutor ordered background checks on three potential jurors, including the only African

American juror, and then challenged that juror for cause when it was determined he had

lied about his criminal history and involvement with drugs. This argument fails because

the principles of Batson v. Kennedy, 476 U.S. 79 (1986), apply only to peremptory strikes.

See, e.g., United States v. Elliott, 89 F.3d 1360, 1365 (8th Cir. 1996) (“We know of no

case that has extrapolated the Batson framework to for-cause strikes.”); United States v.

Blackman, 66 F.3d 1572, 1575 n.3 (11th Cir. 1995) (“[N]o authority suggests Batson

extends to the area of challenges for cause.”); cf. United States v. DeJesus, 347 F.3d 500,

506 (3d Cir. 2003) (“In order to make a prima facie showing [under Batson], the defendant

must show that the government has exercised peremptory challenges to remove members

of a particular race from the venire.” (emphasis added)). Not only was the juror in

question challenged for cause, but Jones does not argue that the juror was improperly

excluded.

       Jones next argues that his within-Guidelines sentence of 262 months was

unreasonable because his designation as a “career offender” does not accurately reflect his

criminal history or the seriousness of his crime, does not further the purposes of sentencing

under 18 U.S.C. § 3553(a), and results in racial discrimination. The District Court,

however, adequately weighed each of the relevant statutory factors, offered a lengthy

colloquy, and determined that a sentence of 262 months was appropriate in this instance.

See United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc) (“The touchstone of



                                             4
reasonableness is whether the record as a whole reflects rational and meaningful

consideration of the factors enumerated in 18 U.S.C. § 3553(a).” (internal quotation

marks omitted)). This sentence was, thus, not an abuse of discretion.

       Finally, Jones argues that the District Court violated his Sixth Amendment rights by

failing to place the question of his prior felony drug conviction before a jury before using

it to increase his sentence beyond the otherwise-applicable statutory maximum of twenty

years. This argument fails because it is well-established that a court, rather than a jury,

may determine the fact of a prior conviction for purposes of sentencing. See United States

v. Ordaz, 398 F.3d 236, 241 (3d Cir. 2005). Additionally, Jones admitted to his prior

convictions under oath, so they were not in dispute.

       Accordingly, we will affirm Jones’s judgment of conviction and sentence.




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