18-3641-cr
United States v. John Jones


                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                                  SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
"SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


              At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 24th day of April, two thousand twenty.

PRESENT:             BARRINGTON D. PARKER,
                     DENNY CHIN,
                     WILLIAM J. NARDINI
                                         Circuit Judges.
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UNITED STATES OF AMERICA,
                    Appellee,
               -v-                                                                 18-3641-cr

CHILDLOVE GELIN, AKA ROME, AKA HAITI,
JOSHUA HEATHMAN, AKA ERIC,
                    Defendants,

JOHN JONES, AKA CHAMP,
                    Defendant-Appellant.

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FOR APPELLEE:                             NATHANAEL T. BURRIS, Assistant United
                                          States Attorney (Gregory L. Waples, Assistant
                                          United States Attorney, on the brief), for
                                          Christina E. Nolan, United States Attorney for
                                          the District of Vermont, Burlington, Vermont.

FOR DEFENDANT-APPELLANT:                  SUSAN C. WOLFE, Law Office of Susan C.
                                          Wolfe, New York, New York, and Sarah M.
                                          Sacks, on the brief, Epstein Sacks PLLC, New
                                          York, New York.

               Appeal from the United States District Court for the District of Vermont

(Reiss, J.).

               UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

               Defendant-appellant John Jones appeals from the judgment entered

November 29, 2018, following his conviction at a jury trial, sentencing him principally

to 85 months' imprisonment for (1) conspiring to distribute cocaine and heroin, (2)

distributing heroin, and (3) possessing with intent to distribute 28 grams or more of

cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B), and (b)(1)(C). On

appeal, Jones contends that the district court abused its discretion in rejecting his plea

agreement, and that the evidence at trial was insufficient to support his conviction for

possession with intent to distribute the cocaine base ("count three"). We assume the

parties' familiarity with the underlying facts, the procedural history of the case, and the

issues on appeal.



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                                       DISCUSSION

I.     Rejection of Guilty Plea

              Jones first contends that the district court abused its discretion in rejecting

his plea agreement and erred in subsequently denying his request to proceed to

sentencing on his guilty plea in the absence of an agreement. We reject this argument

because Jones himself asked the district court to reject the plea agreement and because

there was no error in the district court's decision to hold Jones's guilty plea in abeyance

pending resolution of the charges against him that remained outstanding.

       A.     Procedural History

              The plea agreement was filed with the district court on December 15, 2016,

along with a Superseding Information. Although Jones had already been indicted for

the relevant conduct (the "First Superseding Indictment"), the plea agreement

contemplated that Jones would plead guilty to the Superseding Information -- which

contained a lesser, non-mandatory-minimum conspiracy charge -- in exchange for the

Government agreeing to dismiss the First Superseding Indictment at sentencing. The

parties further agreed in the plea agreement, pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C), that the appropriate term of imprisonment for the district court

to impose was 55 months. The district court accepted Jones's guilty plea that day, but

deferred acceptance of the plea agreement until sentencing.




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              By the time sentencing was scheduled, however, Jones no longer wished

to be bound by the plea agreement. In a memorandum submitted to the district court in

advance of sentencing, Jones asked the district court to reject the plea agreement. See

App'x at 59 ("[T]he Court should reject the Plea Agreement pursuant to F.R.Cr.P.

11(5)."). According to Jones, he had entered into the plea agreement only because he

thought that the Probation Office would apply the career offender enhancement to

calculate his Guidelines range, which did not end up being the case. Even though the

Probation Office's presentence report still calculated Jones's sentencing range at 77-96

months' imprisonment -- well above the 55 months contemplated in the plea agreement

-- Jones maintained that enforcing the plea agreement would be "fundamentally unfair."

App'x at 59. He asked the district court to reject the plea agreement and instead impose

a sentence of time served.

              At a hearing held on July 14, 2017, the district court rejected the plea

agreement, finding "too much dissension." App'x at 83. Jones was given the

opportunity to withdraw his guilty plea, but he declined to do so. The district court

warned Jones that the Superseding Indictment, which contained a 5-year mandatory

minimum conspiracy charge, was still outstanding and instructed him to take time to

consider his options. Three days later, Jones filed a motion for clarification, asking

whether he could proceed to sentencing on his guilty plea to the Superseding

Information. The district court replied that he could not, stating:


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               Mr. Jones will not proceed to sentencing on his plea which is
               based on an information offered by the government as part
               of the rejected Fed. R. Crim. P 11(c)(1)(c) plea agreement.
               Had Mr. Jones pled 'straight up' to an indictment or
               information that was not part of a plea agreement, the
               option to proceed to sentencing would have been available.

App'x at 97.

               By letter dated July 20, 2017, Jones requested "that his case be set for trial

at the Court's earliest convenience." App'x at 98. In the following three months, the

grand jury returned a Second and Third Superseding Indictment against Jones. On

October 20, 2017, trial commenced on the charges contained in the Third Superseding

Indictment -- (1) conspiring with others to distribute heroin and cocaine, (2) distributing

heroin, and (3) knowingly possessing with intent to distribute 28 grams or more of a

cocaine base on or about July 13, 2015. Jones was convicted on all three counts. On

November 27, 2018, the district court sentenced Jones to 85 months' imprisonment,

concurrent on all counts, to be followed by 4 years of supervised release.

       B.      Analysis

               Jones first argues that the district court abused its discretion in rejecting

his plea agreement because "too much dissension" was not a reasonable reason to reject

it. This argument is waived because Jones specifically asked the district court to reject

the plea agreement. See United States v. Wellington, 417 F.3d 284, 290 (2d Cir. 2005)

(finding an argument waived because a "defendant cannot complain of an error that he

himself invited").
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               Jones's second argument -- that the district court erred in refusing to

immediately sentence him on the Superseding Information -- although not waived,

lacks merit. Jones argues that it was reversible error for the district court to vacate his

guilty plea because a plea agreement and a guilty plea are separate. See, e.g., United

States v. Lopez, 385 F.3d 245, 251 (2d Cir. 2004); see also In re Ellis, 356 F.3d 1198, 1206 (9th

Cir. 2004). But Jones's guilty plea to the Superseding Information was never vacated.

The district court simply declined to proceed to sentencing on the Superseding

Information while the outstanding charges remained pending. We see no abuse of

discretion in that decision. See United States v. Booth, 996 F.2d 1395, 1397 (2d Cir. 1993)

("A sentencing court has broad discretion respecting the scheduling of sentencing

proceedings.").

               Finally, to the extent that Jones's argument can be construed as an

objection to his continued prosecution on the ground of double jeopardy, we reject it as

well. The Government does not dispute that the Superseding Information contained a

lesser-included offense of the Third Superseding Indictment and that the double

jeopardy clause barred the Government from seeking punishment on both convictions

at sentencing. See Appellee's Br. at 29 ("When Jones was ultimately convicted of the

counts contained within the Indictment, the double jeopardy clause barred him from

being sentenced on the Information, which charged a lesser included offense of the

Superseding Indictment's conspiracy charge."). But "it is permissible to prosecute a


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defendant simultaneously on two or more counts charging offenses that are the same

for double jeopardy purposes," so long as the prosecutions do not result in "multiple

punishments for the same offense." United States v. Irving, 554 F.3d 64, 76 (2d Cir. 2009).

Here, Jones was only sentenced on his trial convictions stemming from the Third

Superseding Indictment and the count to which he pled guilty under the Superseding

Information, Count 1ss, was dismissed in the final judgment. As a result, there was no

double jeopardy violation.

II.    Insufficiency of the Evidence

               Jones also contends that the evidence at trial was insufficient to support

his conviction on count three because the drugs at issue were found abandoned on the

side of the road and no reasonable juror could have concluded they belonged to him.

We disagree.

       A.      Applicable Law

               We review challenges to the sufficiency of the evidence de novo, "but must

uphold the conviction if 'any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.'" United States v. Vernace, 811 F.3d

609, 615 (2d Cir. 2016) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). In

evaluating the trial record, we "view the evidence in the light most favorable to the

government, crediting every inference that could have been drawn in the government's




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favor, and deferring to the jury's assessment of witness credibility and its assessment of

the weight of the evidence." United States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012).

       B.     Analysis

              The evidence at trial established that on July 13, 2015, Jones was with his

co-conspirator Childlove Gelin when a government informant made a controlled

purchase of cocaine base from Gelin at an apartment in Brattleboro, Vermont.

Following the drug sale, and while under law enforcement surveillance, Jones and

Gelin left the apartment, entered a Chevy Malibu, and began driving southbound on

Interstate 91. As the vehicle passed between Exits 26 and 27, a state trooper attempted

to pull Jones and Gelin over, but they ignored the trooper and sped away at 130 miles

per hour. A car chase ensued and law enforcement followed the Malibu for ten miles,

at one point passing through the Deerfield Bridge Project construction zone, before

losing sight of the vehicle north of Exit 25. Jones and Gelin then pulled off the highway,

but they were apprehended on foot shortly thereafter and placed under arrest. Law

enforcement conducted an inventory search of the Malibu, later recovered in a cornfield

behind a barn near Exit 25, and found various drug paraphernalia, including a scale

covered in cocaine residue.

              On July 17, 2015, construction workers from the Deerfield Bridge Project

found two large bags of cocaine base on the right-hand side of Interstate 91 southbound

just north of Exit 25 -- the same path Jones and Gelin had traversed four days earlier.


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The workers testified at trial that, as surveyors, they were the first members of the crew

to reach this location. Drug testing revealed that the cocaine base found contained two

cutting agents also present in the residue on the scale found in the Malibu.

              On this record, a reasonable juror could have concluded beyond a

reasonable doubt that Jones possessed the drugs found on the Interstate. The

Government concedes that the evidence tying Jones to the cocaine base was

circumstantial. But we have held that "the prosecution may prove its case entirely by

circumstantial evidence so long as guilt is established beyond a reasonable doubt."

United States v. Glenn, 312 F.3d 58, 64 (2d Cir. 2002). Here, the jurors heard evidence

that after selling drugs to an informant, Jones and his co-conspirator drove by the

location where the drugs were later found while engaged in a high-speed car chase with

law enforcement. The jurors also heard evidence that various drug paraphernalia was

later recovered from Jones and Gelin's abandoned vehicle, but notably no drugs.

Hence, a reasonable juror could have concluded that Jones threw the drugs out of the

vehicle during the car chase, and we affirm his count three conviction on that basis.

                                         *   *   *

              We have considered Jones's remaining arguments and conclude they are

without merit. For the foregoing reasons, we AFFIRM the judgment of the district

court.

                                          FOR THE COURT:
                                          Catherine O'Hagan Wolfe, Clerk
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