                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            MAY 24 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30257

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

 v.
                                                 MEMORANDUM*
MAXWELL DELVON JONES, AKA
Money,

              Defendant - Appellant.


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

                        Argued and Submitted May 4, 2016
                               Seattle, Washington

Before: GRABER and MURGUIA, Circuit Judges, and BURY,** District Judge.

      Following two jury trials on severed counts, Maxwell Jones was convicted

of three counts of being a felon in possession of a firearm, in violation of 18 U.S.C.

§§ 922(g) and 924(a)(2). The district court sentenced Jones to 144 months of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David C. Bury, United States District Judge for the
District of Arizona, sitting by designation.
imprisonment. Jones appeals his conviction and sentence. We affirm the

conviction, vacate the sentence, and remand for further proceedings.

1.    The photospread used to identify Jones was not impermissibly suggestive.

The photospread did not “emphasize the focus” upon Jones, as Jones’s facial scar

was not visible in the photograph. See United States v. Bagley, 772 F.2d 482, 493

(9th Cir. 1985). Even if the scar was visible, the witnesses’ identification of Jones

was sufficiently reliable under the totality of the circumstances. See id. at 492.

2.    The district court did not plainly err in communicating with a distraught

juror outside the presence of counsel and in responding to a jury question about the

use of jurors’ personal information. These were innocuous communications

dealing with ancillary matters and did not prejudice Jones. See Rushen v. Spain,

464 U.S. 114, 121 (1983) (per curiam); United States v. Madrid, 842 F.2d 1090,

1093 (9th Cir. 1988).

3.    The district court did not plainly err in allowing the jury to view Jones’s scar

during deliberations. A jury may view a defendant’s facial features during

deliberations if it had an opportunity to observe him at trial. See United States v.

Rincon, 28 F.3d 921, 926–97 (9th Cir. 1994). Unlike the defendant in Rincon,

Jones did not present himself to the jury for examination at trial. Nonetheless,




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Jones has failed to establish plain error. See United States v. Christensen, 801 F.3d

970, 984 (9th Cir. 2015).

4.    At sentencing, the district court relied on three 2003 Washington state court

convictions for which Jones had pled guilty pro se in calculating Jones’s base

offense level and criminal history category. These convictions, all in Spokane

County Superior Court, are: (1) attempted second-degree assault, No. 03-1-00656-

5, (2) two counts of conspiracy to deliver a controlled substance, No. 03-1-01409-

6, and (3) second-degree possession of stolen property, No. 03-1-03050-4.

      In a prior, unrelated federal prosecution of Jones, the Government conceded

that Jones’s uncounseled 2003 convictions were constitutionally invalid. See

United States’ Sentencing Memorandum Re: Defendant’s Prior Uncounseled State

Court Convictions, United States v. Jones, No. 2:05-cr-00067-JLQ (E.D. Wash.

Feb. 17, 2006), ECF No. 47. In its supplemental brief and at oral argument in this

case, the Government again conceded the invalidity of the 2003 convictions. We

therefore vacate Jones’s sentence and remand for resentencing. On remand, the

district court may not use the three uncounseled 2003 state convictions to calculate

Jones’s base offense level or criminal history category.

      At oral argument, Jones’s counsel informed the court that, since this appeal

was filed, Jones has been convicted and sentenced in Washington state court for


                                          3
charges that were pending at the time of sentencing in this case. On remand, the

district court may, if it deems it appropriate, consider any such sentence as a “prior

sentence” to calculate Jones’s criminal history category. See U.S. Sentencing

Guidelines Manual §§ 4A1.1, 4A1.2(a)(1) & cmt. n.1 (U.S. Sentencing Comm’n

2013); United States v. Klump, 57 F.3d 801, 802 (9th Cir. 1995) (“[A]t

resentencing, a trial court may count an unrelated sentence imposed after the

original sentence as a ‘prior sentence.’”).

      AFFIRMED IN PART, VACATED IN PART, and REMANDED




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