United States v. Jones, Shawn W.

In the

United States Court of Appeals

For the Seventh Circuit

No. 01-1117

United States of America,

Plaintiff-Appellee,

v.

Shawn W. Jones,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 00-CR-30016--Richard Mills, Judge.

Argued May 17, 2001--Decided January 28, 2002

Before Harlington Wood, Jr., Kanne, and

Rovner, Circuit Judges.

Kanne, Circuit Judge. Defendant Shawn W.

Jones pleaded guilty to three counts of

criminal contempt in violation of 18

U.S.C. sec. 401 on August 29, 2000. On

January 4, 2001, the district court

entered an order sentencing Jones to 76

months imprisonment, three years of

supervised release, and a $300 special

assessment. In imposing the imprisonment

term, the district court applied an

upward departure from the Sentencing

Guidelines because of Jones’ failure to

comply with a cooperation agreement that

he entered into with the government on

June 8, 1995. On appeal, Jones argues

that: 1) the district court’s grounds for

applying the upward departure were

improper and 2) the extent of the upward

departure in this case was unreasonable.

We affirm.

I. History

On March 3, 1995, Jones was convicted of

conspiracy to distribute cocaine and

marijuana in violation of 21 U.S.C. sec.

846 and of possession of cocaine and

marijuana with the intent to distribute

in violation of 21 U.S.C. sec. 841(a)(1)

("drug convictions"). Prior to sentencing

for the drug convictions, Jones entered

into a cooperation agreement

("Agreement") with the government on June

8, 1995. The Agreement stated, in

relevant part, that Jones would "provide

complete and truthful testimony to any

grand jury, trial jury, judge, or

magistrate in any proceeding in which he

may be called to testify by the

government." In exchange, the Agreement

provided, among other things, that the

government would recommend that the

district court apply a downward departure

to Jones’ sentence for the drug

convictions based on the "government’s

evaluation of the nature, extent, value

and timeliness of [Jones’] assistance."

Further, it provided that "[a]ny material

breach of any provision" of the Agreement

by Jones "would void [the Agreement] in

its entirety."

Pursuant to the Agreement, on December

27, 1995, Jones testified in front of a

grand jury investigating Robert Scott

about his and Scott’s involvement in the

activities that gave rise to the drug

convictions. As a result, on April 1,

1996, the government moved for a downward

departure to Jones’ drug sentence

pursuant to United States Sentencing

Guideline sec. 5K1.1./1 In that motion,

the government noted that the sentencing

range applicable to Jones’ drug

convictions was 188 to 235 months

imprisonment and asked the district court

to reduce Jones’ sentence to 162 months

imprisonment. The district court entered

an order granting the government’s

downward departure motion, stating that

"it accepted the Government’s sec. 5K1.1

motion proposing a downward departure to

162 months," but that it "concluded that

a sentence of 144 months was

appropriate."

In late 1998, the government requested

that Jones provide further grand jury

testimony about the activities underlying

the drug convictions. To that end, on

January 7, 1999, the government filed a

motion to obtain a grant of immunity for

Jones pursuant to 18 U.S.C. sec.sec.

6002-6003 and for an order compelling

Jones to testify before the grand jury.

The district court granted the

government’s motion in full and ordered

Jones to testify before the grand jury.

However, on January 7, 1999, when brought

before the grand jury, Jones refused to

take oath or to provide testimony.

Thereafter, Jones again refused to

testify before the grand jury, despite

being ordered by the district court to do

so. The government then filed a motion to

hold Jones in civil contempt, but the

district court deferred ruling on the

motion in order to provide Jones with

another opportunity to testify before the

grand jury. On February 3, 1999, Jones

appeared before the grand jury and for a

third time, refused to take oath or

testify. That same day, the district

court held Jones in civil contempt. In

June, 1999, thegovernment obtained an

indictment against Scott.

On December 1, 1999, the government

filed a motion to request a grant of

immunity for Jones and for an order

compelling him to testify at Scott’s

trial. After the district court granted

this motion, Jones refused to testify at

Scott’s trial and was held in civil

contempt for a second time. Scott’s trial

ended in a mistrial after the jury was

unable to reach a verdict. On April 3,

2000, the government filed a motion to

obtain a grant of immunity for Jones and

for an order compelling him to testify at

Scott’s second trial. After the district

court granted this motion, Jones refused

to testify at Scott’s second trial and

was held in civil contempt for a third

time. Eventually, Jones’ 1995 grand jury

testimony was read into the record at

Scott’s second trial, and Scott was

convicted.

On May 5, 2000, Jones was charged in a

superseding indictment with three counts

of criminal contempt pursuant to 18

U.S.C. sec. 401. Count 1 of the

indictment charged Jones with criminal

contempt due to his three refusals to

provide grand jury testimony. Count 2

charged Jones with criminal contempt due

to his refusal to testify at Scott’s

first trial, and Count 3 for his refusal

to testify at Scott’s second trial. On

August 29, 2000, Jones pleaded guilty to

all three counts of criminal contempt.

Thereafter, the probation office

determined that Jones should be sentenced

under Guideline sec. 2X3.1 (Accessory

After the Fact) rather than under the

more lenient Guideline sec. 2J1.5

(Failure to Appear by Material Witness),

and recommended a sentencing range of 57

to 71 months imprisonment.

At Jones’ sentencing hearing on January

2, 2001, the district court admonished

Jones for refusing to comply with the

Agreement, but found that because there

was no evidence that Jones intended to

obstruct justice, Guideline sec. 2X3.1

did not apply./2 Applying Guideline sec.

2J1.5, the district court determined that

Jones’ offense level was 7, resulting in

a sentencing range of 4 to 10 months

imprisonment.

The government then moved for an upward

departure pursuant to Guideline sec.

5K2.0./3 Under that Guideline, an upward

departure would be appropriate if Jones’

refusal to testify distinguished his

"case from the ’heartland’ cases covered

by" Guideline sec. 2J1.5. U.S.S.G. sec.

5K2.0. The government requested that the

district court apply a 17-level upward

departure and sentence Jones to 71 months

imprisonment. The district court granted

the government’s departure motion and

stated that its decision to apply an

upward departure to Jones’ sentence was

based on Jones’ repeated refusals to

testify and on this court’s decision in

United States v. Simmons, 215 F.3d 737,

743 (7th Cir. 2000) (upholding upward

departure based on Guideline sec. 5K2.0

for defendant’s failure to comply with

plea agreement requiring him to testify

in future proceedings).

On January 4, 2001, the district court

entered an order stating that as in

Simmons, 215 F.3d at 743, Jones’ actions

warranted an upward departure in the

amount necessary to take away the benefit

conferred upon Jones in 1996. The

district court calculated that the

benefit of the1996 downward departure was

66 months,/4 and it added this amount to

the 10 month sentence that was the upper

end of the applicable range. Thus, the

district court sentenced Jones to 76

months imprisonment on each of the three

criminal contempt counts, to be served

concurrently.

II. Analysis

A. Standard of Review

On appeal, Jones alleges that: 1) the

district court’s grounds for applying the

upward departure were improper and 2) the

extent of the upward departure in this

case was unreasonable. We review a

district court’s decision to depart from

the Sentencing Guidelines for abuse of

discretion and accept the findings of

fact underlying the departure unless they

are clearly erroneous. See id. at 741.

Jones does not contend that the district

court’s findings of fact were in error.

Further, we review the district court’s

determination of the extent of the

departure for abuse of discretion, and

"will uphold the extent of the departure

taken as long as it is reasonable and

adequately reflects the structure of the

Guidelines." Id. (quotation omitted).

B. Appropriateness of Grounds for

Departure

The Sentencing Guidelines direct

district courts to apply Guideline sec.

2X5.1 when sentencing defendants for

criminal contempt. See U.S.S.G. sec.

2J1.1. In turn, Guideline sec. 2X5.1

directs courts to apply the "most

analogous guideline," U.S.S.G. sec.

2X5.1, because "misconduct constituting

contempt varies significantly." U.S.S.G.

sec. 2J1.1. In this case, the district

court chose to sentence Jones under

Guideline sec. 2J1.5 (Failure to Appear

by Material Witness) because Jones’

criminal contempt consisted of failing to

testify before Scott’s grand jury and at

Scott’s trials, as he was required to do

under the Agreement. We conclude that the

district court correctly chose the most

analogous Guideline. See Simmons, 215

F.3d at 742 (stating that Guideline sec.

2J1.5 defines the "most closely analogous

[behavior] to [a] refusal to comply with

an order to testify"). The district court

then noted that the applicable sentencing

range under Guideline sec. 2J1.5 was 4 to

10 months imprisonment.

After choosing the applicable sentencing

range, the district court could apply an

upward departure if it found that Jones’

behavior was outside of the "heartland"

of conduct embodied by Guideline sec.

2J1.5. See Simmons, 215 F.3d at 742. In

other words, if Jones’ behavior was more

egregious than the behavior normally

punished under Guideline sec. 2J1.5, then

the district court was permitted to apply

an upward departure. See id. Here, the

district court applied an upward

departure because Jones’ refusals to tes

tify amounted to a breach of the

Agreement. Further, the benefit of the

Agreement had already been conferred to

Jones in the form of a downward departure

applied to his drug sentence.

We addressed the application of an

upward departure based on this exact type

of behavior in Simmons, 215 F.3d at 742-

43. In that case, the defendant pleaded

guilty to bank robbery pursuant to a plea

agreement with the government, which

required the defendant to testify at the

trial of Dwayne Reed. See id. at 739.

After the defendant testified at Reed’s

first trial, which ended in a mistrial,

the government moved for the application

of a downward departure for the

defendant’s bank robbery sentence, and

the district court granted the motion.

See id. At Reed’s second trial, however,

the defendant refused to testify, and the

district court found him guilty of

criminal contempt. See id. at 739-40. In

sentencing the defendant for criminal

contempt, the district court applied an

upward departure, justifying its decision

by stating that the defendant had

received a benefit from the plea

agreement in the form of a reduced bank

robbery sentence. See id. at 740.

Further, because the defendant had

breached that plea agreement by refusing

to testify at Reed’s second trial, the

upward departure would take away the

benefit conferred upon the defendant with

respect to his bank robbery sentence. See

id. at 742-43. On appeal, this court

upheld the application of the upward

departure on these grounds because the

defendant’s "outright refusal to testify,

coupled with his change of heart as to

his decision to testify, served to

distinguish [defendant’s] behavior from

other behavior within the heartland of

sec. 2J1.5." Id. at 742.

The facts in the present case are

strikingly similar, if not more

egregious. After his drug convictions,

Jones entered into an Agreement with the

government, under which he was obliged to

"provide complete and truthful testimony

to any grand jury, trial jury, judge, or

magistrate in any proceeding in which he

may be called to testify by the

government." (italicized emphasis added).

Jones testified in front of a grand jury

that was investigating Scott, and accord

ingly, the district court applied a

downward departure to Jones’ drug

sentence. Thereafter, Jones refused to

provide grand jury testimony three times

and refused to testify at both of Scott’s

trials. Because of these five refusals to

testify, Jones was convicted of criminal

contempt. The district court then applied

an upward departure to Jones’ criminal

contempt sentence, justifying its

decision by stating that it found Jones’

"refusal to testify [to be] outside of

the heartland of conduct contemplated by

the Sentencing Commission. As in Simmons,

[Jones] initially agreed to cooperate,

testified, received a benefit for his

cooperation, and then, refused to

testify." Further, the district court

stated that it wanted "to strip [Jones]

of the benefit of his sec. 5K1.1

reduction in his [drug] sentence."

Therefore, as in Simmons, 215 F.3d at

743, we hold that the district court did

not abuse its discretion by applying an

upward departure based on Jones’ refusals

to testify.

Jones’ arguments to the contrary are

unavailing. First, Jones’ reliance on

Guideline sec. 5K1.2, which states that a

"defendant’s refusal to assist

authorities in the investigation of other

persons may not be considered as an

aggravating sentencing factor," is

misguided. U.S.S.G. sec. 5K1.2. Jones has

cited no authority that suggests that

Guideline sec. 5K1.2 applies to a

situation where the defendant received a

benefit for agreeing to assist the

government and thereafter refused to

comply with that agreement. In fact,

there is precedent holding that this

exact kind of behavior does warrant an

upward departure. See Simmons, 215 F.3d

at 742-43.

Next, Jones contends that because

"generalized dissatisfaction with the

Guidelines . . . is not a reasonable

basis" for applying an upward departure,

his sentence should be reversed. United

States v. Scott, 914 F.2d 959, 964 (7th

Cir. 1990) (citations omitted). This

principle is not applicable to the case

at hand because the district court

specifically stated that it was applying

the upward departure because "[Jones]

initially agreed to cooperate, testified,

received a benefit for his cooperation,

and then, refused to testify." We reject

the contention that the district court

applied the upward departure because of

any dissatisfaction with the applicable

Guideline.

Finally, Jones contends for the first

time in his reply brief that he did not

breach the terms of the Agreement. Jones

bases this claim on the fact that on

January 7, 1999, when the government

sought Jones’ grand jury testimony, it

stated that it was not "calling [Jones]

before the Grand Jury in any way

connected with [the Agreement]." Jones

did not mention this argument in his

opening brief and did not adequately

develop it in his reply brief because he

discussed no legal authority addressing

how the government’s statement affected

the continuing validity of the Agreement.

See 330 West Hubbard Rest. Corp. v.

United States, 203 F.3d 990, 997 (7th

Cir. 2000) (stating that argument

inadequately developed when not bolstered

by legal authority). Therefore, without

passing judgment on the merits of this

contention, we hold that Jones has

forfeited this argument on appeal. See,

e.g., United States v. Guy, 174 F.3d 859,

862 n.1 (7th Cir. 1999).

C. Reasonableness of Sentence

Jones also argues that even if it was

reasonable for the district court to

apply an upward departure, the extent of

the departure in this case was

unreasonable. Sentencing courts need not

adhere to a mathematical approach in

determining the extent of the departure,

but rather need only "link the degree of

departure to the structure of the

Guidelines and justify the extent of the

departure taken." Simmons, 215 F.3d at

743 (quotation omitted). In Simmons, the

district court applied an 8-level upward

departure to the defendant’s criminal

contempt sentence, which took the

defendant up to an offense level of 23

and resulted in a sentence of 57 months

imprisonment. See id. We held that the

extent of this departure was reasonable

because it accounted for the 55 month

benefit that the defendant had received

as a result of the downward departure

applied to his bank robbery sentence. See

id. at 743.

In the present case, the district court

applied a 17-level upward departure to

Jones’ criminal contempt sentence,

resulting in an offense level of 24 and a

sentence of 76 months imprisonment.

Jones’ applicable range for the drug

convictions was 188 to 235 months

imprisonment, and the district court

stated that it would have sentenced Jones

to 210 months imprisonment had no

downward departure been applied to Jones’

drug sentence because it was its normal

practice to sentence defendants to the

middle of the applicable range. The

district court then added the 66 months

(210 months minus 144 months) to the 10

month sentence from the applicable range

under Guideline sec. 2J1.5. As Jones

concedes in his opening brief, "the 66

months [were] required to take back Mr.

Jones’ 5K1.1 departure." Therefore, the

extent of the upward departure in this

case was reasonable "because it took away

the benefit conferred upon" Jones by the

downward departure applied to his drug

sentence. Simmons, 215 F.3d at 743

(quotation omitted).

On appeal, Jones proffers several

arguments urging us to overturn Simmons,

which we decline to do. Jones also argues

that even under Simmons, the 17-level

departure in this case was unreasonable

because it increased Jones’ offense level

by over twice as many levels as the 8-

level departure in Simmons, 215 F.3d at

743, did. This argument is also

unavailing. We found Simmons’s upward

departure, which resulted in his offense

level being 23, to be reasonable. See id.

In this case, Jones’ upward departure

resulted in his offense level being 24.

Further, Jones’ conduct was more

egregious than Simmons’s because Jones

refused to testify five times, whereas

Simmons only refused to testify once.

III. Conclusion

For the foregoing reasons, we AFFIRM

Jones’ sentence.

FOOTNOTES

/1 Guideline sec. 5K1.1 provides that, "[u]pon

motion of the government stating that the defen-

dant has provided substantial assistance in the

investigation or prosecution of another person

who has committed an offense, the court may

depart from the guidelines."

/2 Judge Mills presided over Jones’ trial for the

drug convictions, entered Jones’ drug sentence,

presided over Scott’s trials, and presided over

Jones’ criminal contempt case and sentencing.

/3 Guideline sec. 5K2.0 provides that "the sentenc-

ing court may impose a sentence outside the range

established by the applicable guidelines, if the

court finds ’that there exists an aggravating or

mitigating circumstance of a kind, or to a de-

gree, not adequately taken into consideration by

the Sentencing Commission in formulating the

guidelines that should result in a sentence

different from that described.’"

/4 The district court calculated the 66 month bene-

fit by subtracting the 144 month sentence actual-

ly imposed on Jones from 210 months--the middle

of the applicable range of 188 to 235 months

imprisonment.