Petition for Writ of Certiorari — T'Shaun Omar Jones, Petitioner v. United States

Supreme Court briefNov 21, 2023

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APPENDIX

A-1 - United States v. Jones, Case Nos. 22-1280, 22-1281, Opinion Affirming

Conviction and Judgment (6th Cir. Aug. 29, 2023)............................................1

A-2 - United States v. Jones, Case No. 21-20435, Transcript of Sentencing

(E.D. Mich. Apr. 29, 2022)……………..…..........................................................15

Case: 22-1280

Document: 32-2

Filed: 08/29/2023

Page: 1

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 23a0200p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

┐

│

T’SHAUN OMAR JONES,

Defendant-Appellant.

│

┘

Nos. 22-1280/1281

Appeal from the United States District Court for the Eastern District of Michigan at Detroit.

No. 19-cr-202362 (22-1281)—George Caram Steeh, III, District Judge;

No. 21-cr-20435 (22-1280)—Gershwin A. Drain, District Judge.

Argued: April 27, 2023

Decided and Filed: August 29, 2023

Before: COOK, GRIFFIN, and NALBANDIAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Amanda Bashi, OFFICE OF THE FEDERAL COMMUNITY DEFENDER,

Detroit, Michigan, for Appellant in case 22-1280. Mark Chasteen, UNITED STATES

ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee in case 22-1280. ON BRIEF:

Benton C. Martin, OFFICE OF THE FEDERAL COMMUNITY DEFENDER, Detroit,

Michigan, for Appellant in case 22-1280. Mark Chasteen, UNITED STATES ATTORNEY’S

OFFICE, Detroit, Michigan, for Appellee in case 22-1280. Meghan Sweeney Bean, UNITED

STATES ATTORNEY’S OFFICE, Detroit, Michigan, for Appellee in case 22-1281.

APP 001

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_________________

OPINION

_________________

NALBANDIAN, Circuit Judge. Officers arrested T’Shaun Jones, who had been on

supervised release, after he fired shots outside his house and fled inside.

Under a plea

agreement, the district court imposed the agreed-upon ten-year sentence, which was above the

Guidelines range. Separately, Jones faced resentencing on his supervised release because the

firearm offense violated his supervised-release conditions. A different district court imposed a

24-month sentence for this violation—half to run concurrently with his firearm conviction and

half to run consecutively.

Jones challenges both the ten-year firearm sentence and the 24-month supervised-release

sentence. Because the district courts properly calculated Jones’s Guidelines range for the firearm

offense and imposed a reasonable sentence for the supervised-release violation, we AFFIRM.

On May 18, 2021, Detroit police responded to a shots-fired call. Witnesses reported that

T’Shaun Jones had been firing a gun outside his home all day. Police saw Jones fire one shot in

front of his home before he ran inside. And Jones refused to step outside. So police declared a

barricaded gunman situation. But Jones eventually came out of the house, and the officers

arrested him.

A grand jury indicted Jones on a single count of being a felon in possession of a firearm

in violation of 18 U.S.C. §§ 922(g)(1), 924(e). The government and Jones negotiated a plea

agreement under Federal Rule of Criminal Procedure 11(c)(1)(C),1 and Jones pleaded guilty to

In a plea agreement under Rule 11(c)(1)(C), “the Government and a defendant ‘agree that a specific

sentence or sentencing range is the appropriate disposition of the case.’” Hughes v. United States, 138 S. Ct. 1765,

1773 (2018) (quoting Fed. R. Crim. P. 11(c)(1)(C)). “In deciding whether to accept an agreement that includes a

specific sentence, the district court must consider the Sentencing Guidelines.” Id. In other words, “[a] sentence

imposed pursuant to a Type-C agreement is no exception to the general rule that a defendant’s Guidelines range is

both the starting point and a basis for his ultimate sentence.” Id. at 1776. So here, for example, Jones’s plea

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possessing a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). Both parties

agreed that Jones should receive a ten-year sentence, well below the 15-year mandatory

minimum that would have applied if he had been classified as an armed career criminal. And

Jones “waive[d] any right” to appeal his sentence, so long as it “[did] not exceed the top of the

guideline range determined by the Court.” (22-1280, R. 22, Plea Agreement, p. 12.)

The presentence report (“PSR”) calculated Jones’s base offense level at 20, reflecting that

Jones had committed a firearm offense after committing a controlled substance offense. That’s

because Jones had been previously convicted of manufacturing or delivering a controlled

substance under Michigan Compiled Laws § 333.7401.

And the PSR also recommended a two-point increase because Jones “recklessly created a

substantial risk of death or serious bodily injury to another person in the course of fleeing from a

law enforcement officer.” (22-1280, R. 32, Revised PSR, p. 7.) In all, the PSR calculated

Jones’s criminal history score at 14, his criminal history category as VI, and a recommended

Guidelines range of 77 to 96 months.

At sentencing, Jones objected to the PSR on two grounds. First, he argued that he should

not receive a sentence enhancement for reckless endangerment during flight. But the district

court rejected this argument. Second, Jones objected to the use of his prior controlled substance

offense under Michigan state law to increase his base offense level. Citing opinions by two

district courts, he argued that the definitions of the Controlled Substances Act determine whether

a state offense can count as a controlled substance offense under the Guidelines. And he claimed

that because Michigan’s controlled-substance statute is broader than the federal definition of the

relevant substances under the Controlled Substances Act, it couldn’t count toward an

enhancement. The district court disagreed and applied the enhancement. (22-1280, R. 36,

Sentencing Transcript, p. 9.)

agreement required the district court to “determine the defendant’s guideline range at sentencing.” (22-1280, R. 22,

Plea Agreement, p. 5.) And that’s why the Guidelines matter even though the parties stipulated to a ten-year

sentence.

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In the end, the district court recognized the PSR’s calculation of the Guidelines range but

still sentenced Jones to 120 months in prison based on the plea agreement.

Jones timely

appealed.

Complicating his case, Jones was on supervised release for attempted transporting of an

individual to engage in prostitution when he committed his firearm offense.

Among the

conditions of Jones’s release were that he could not commit another crime; that he could not

own, possess, or have access to a firearm; and that he had to notify his probation officer if he

were arrested or questioned by a law enforcement officer. Jones’s probation officer found that he

had violated all three conditions by committing the firearm offense.

At his separate supervised-release sentencing, before a different judge, Jones requested

that the court impose a concurrent sentence, while the government requested an 18-month

consecutive sentence.2

In determining the appropriate sentence, the district court noted that, together with the

Guidelines range, it had to consider the 18 U.S.C. § 3553(a) factors, including “the nature and

circumstances of the offense, the history and characteristics of the defendant and the need to

avoid unwarranted sentencing disparities among similarly situated defendants.” (22-1281, R. 23,

Sentencing Transcript, p. 12–13.) The court said that Jones’s firearm offense was “serious.” (Id.

at 13.) It noted that while the supervised-release violation was “related to the underlying

offense,” it was “a violation in its own right,” and an appropriate sentence must account “for

th[at] breach of trust.” (Id. at 14.) So the court found that “the advisory range [wa]s an

appropriate measure of the seriousness of the offense.” (Id.)

The court considered mitigating circumstances, including that Jones’s prior offenses had

resulted in relatively low sentences, and noted that the longest sentence Jones had ever received

Jones’s plea agreement for the firearm offense specified that he could request that his 120-month sentence

“run concurrently with any term of imprisonment imposed for the violation of his supervised release.” (22-1280, R.

22, Plea Agreement, p. 8.) But he “underst[ood]” that the court might nonetheless order that his term of

imprisonment for the supervised-release violation run “concurrently or consecutively with the term of imprisonment

imposed in [the firearm] case.” (Id.)

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was 27 months. So, in the district court’s view, Jones’s new 120-month, above-Guidelines

sentence was “a pretty big jump.” (Id. at 14.) The court then imposed a 24-month sentence, half

of which would be served consecutively to the firearm offense and half of which would be

served concurrently.

Jones objected, arguing that “it would have been reasonable to impose fully concurrent

sentences” and objected “to any consideration of the seriousness of the offense in imposing the

sentence.” (Id. at 17.) The court allowed the objection to stand but thought that it “made it clear

that the seriousness of the offense was the violation itself.” (Id.) Jones timely appealed.

II.

First, we’ll consider whether the district court erred in enhancing Jones’s base level

offense for a “controlled substance offense” using his prior drug conviction under Michigan state

law. Second, we’ll consider whether the district court erred in applying an enhancement for

reckless endangerment during flight.

We review a district court’s “legal interpretation of the Guidelines de novo and its factual

findings” for clear error. United States v. Byrd, 689 F.3d 636, 639 (6th Cir. 2012) (citing United

States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012)). And “[w]hether a prior conviction

counts as a predicate offense under the Guidelines is a question of law subject to de novo

review.” United States v. Havis, 927 F.3d 382, 384 (6th Cir. 2019) (en banc) (per curiam).

We first consider whether the district court erred in considering Jones’s prior conviction

under Michigan Compiled Law § 333.7401. The PSR calculated Jones’s base offense level

under U.S.S.G. § 2K2.1. Under that provision, a defendant receives a base offense level of 20 if

“the defendant committed any part of the instant offense subsequent to sustaining one felony

conviction of either a crime of violence or a controlled substance offense.” § 2K2.1(a)(4)(A).

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A “controlled substance offense” is

an offense under federal or state law, punishable by imprisonment for a term

exceeding one year, that prohibits the manufacture, import, export, distribution, or

dispensing of a controlled substance (or a counterfeit substance) or the possession

of a controlled substance (or a counterfeit substance) with intent to manufacture,

import, export, distribute, or dispense.

U.S.S.G. § 4B1.2(b).

Jones’s argument proceeds in two steps. First, he argues that the Guidelines definition of

a “controlled substance offense” is limited to substances criminalized under the Controlled

Substances Act, and that the court cannot look to state law to apply the enhancement.3 Second,

he argues that Michigan’s controlled substance statute is broader than the Controlled Substances

Act, so his prior Michigan conviction cannot be used as a predicate offense.4 Because we

disagree with him at the first step, we need not reach the second.

We first consider whether the Guidelines allow us to use state law to define a controlled

substance offense. “In construing the Guidelines, we employ the traditional tools of statutory

interpretation, beginning with the text’s plain meaning.” United States v. Babcock, 753 F.3d 587,

591 (6th Cir. 2014). “[I]f the language is unambiguous,” the inquiry “ends there.” Perez v.

Postal Police Officers Ass’n, 736 F.3d 736, 740 (6th Cir. 2013). And in evaluating text, “we

discover a statute’s plain meaning by looking at the language and design of the statute as a

whole.” Id. at 741 (cleaned up). Only “[i]f the text alone does not admit a single conclusive

answer” do we “draw on a broader range of interpretive tools.” Id. at 740.

We start with the plain language of § 4B1.2(b).

It defines a “controlled substance

offense” as an “offense under federal or state law, punishable by imprisonment for a term

We have rejected this argument in unpublished caselaw, see, e.g., United States v. Smith, 681 F. App’x

483, 489 (6th Cir. 2017), but we take this opportunity to address the argument in greater depth now.

To determine whether a state offense can be a predicate controlled substance offense under the Guidelines,

we use the categorical approach. United States v. Montanez, 442 F.3d 485, 489, 491 (6th Cir. 2006). That means

we look “only to the statutory definitions of the prior offenses, and not to the particular facts underlying those

convictions.” Taylor v. United States, 495 U.S. 575, 600 (1990). So we “compare the elements of the statute

forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as

commonly understood. The prior conviction qualifies as [a] predicate only if the statute’s elements are the same as,

or narrower than, those of the generic offense.” Descamps v. United States, 570 U.S. 254, 257 (2013).

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exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of

a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or

a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.”

§ 4B1.2(b) (emphasis added).

From the start, there’s some circularity here because a “controlled substance offense” is

defined as an “offense . . . that prohibits . . . a controlled substance.” Id. And the question is

whether an offense that prohibits a controlled substance must prohibit a federally controlled

substance under the Controlled Substances Act to qualify, given that the plain language of

§ 4B1.2(b) incorporates both state and federal law into its definition.

To tackle that question, we’ll start with what we know from § 4B1.2(b) about a

“controlled substance offense”: (1) it may be under either state law or federal law; (2) the offense

must carry a sentence above one year; and (3) the offense must prohibit “the manufacture,

import, export, distribution, or dispensing” of a controlled or counterfeit substance or possession

with the intent to do so. Id. The Guidelines don’t define “controlled substance,” so we look to

its ordinary meaning: “a drug regulated by law.” United States v. Lewis, 58 F.4th 764, 769 (3d

Cir. 2023).

Bottom line, whether the “offense” is a state-law offense or a federal offense, it must

carry a particular term of imprisonment and it must prohibit certain activity involving a drug

regulated by law. And the “controlled substance offense” may be a violation “under” state law.

What we don’t see in the text is an imperative that the Controlled Substances Act serve as

the referent for what state-law provisions can qualify as controlled substance offenses. In fact,

we see § 4B1.2(b) referencing “offense[s]” under “state law” in defining controlled substance

offenses.

And if the definition of “controlled substance offense” only referred to federal law, we’d

expect to see a reference to the Controlled Substances Act. When the Guidelines require

uniformity, the text of the Guidelines confirms that’s the case. For instance, U.S.S.G. § 2D1.1,

which sets the offense level for drug-related offenses, includes “explicit references to federal

statutes and other federal Guidelines provisions.” United States v. Ward, 972 F.3d 364, 373 (4th

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Cir. 2020) (citing § 2D1.1(a), (b)(3), (b)(16), (b)(18), (d)(1)). And even § 4B1.2 itself refers to

federal law, 26 U.S.C. § 5845(a), in defining “crime of violence.” But § 4B1.2(b) doesn’t do the

same for controlled substance offenses.

Instead, § 4B1.2(b) incorporates both state and federal law into a “controlled substance

offense” analysis. So the context of the Guidelines confirms what the text suggests—state-law

controlled substance offenses need not define controlled substances according to the Controlled

Substances Act to count under § 4B1.2(b). See United States v. Fitzgerald, 906 F.3d 437, 442

(6th Cir. 2018) (explaining that “[i]f a word in isolation is susceptible of multiple meanings,” we

“work outward and examine . . . its placement and purpose in the statutory scheme” (cleaned

up)).

In short, we see no textual limit that a controlled substance offense must contain a

substance listed in the Controlled Substances Act, and we decline to add such a requirement here.

See Hoge v. Honda of Am. Mfg., Inc., 384 F.3d 238, 246 (6th Cir. 2004) (“[W]e ordinarily resist

reading words or elements into a statute that do not appear on its face.” (quoting Bates v. United

States, 522 U.S. 23, 29 (1997))).

So, in line with our unpublished decisions, we hold that a state-law controlled substance

offense can be used to calculate the base offense level under § 2K2.1(a)(4)(A), even if it defines

a controlled substance differently from the Controlled Substances Act. See United States v.

Smith, 681 F. App’x 483, 489 (6th Cir. 2017) (“Because there is no requirement that the

particular controlled substance underlying a state conviction also be controlled by the federal

government, and because the Guidelines specifically include offenses under state law in § 4B1.2,

the fact that [a state] may have criminalized . . . some substances that are not criminalized under

federal law does not prevent conduct prohibited under the [state] statute from qualifying,

categorically, as a predicate offense.”); United States v. Sheffey, 818 F. App’x 513, 519–20 (6th

Cir. 2020) (same); cf. United States v. Whitfield, 726 F. App’x 373, 376 (6th Cir. 2018) (“[T]he

States possess primary authority for defining and enforcing the criminal law.” (cleaned up)).5

Today, we take one side of a circuit split. Using a textual analysis, the Third, Fourth, Seventh, Eighth, and

Tenth Circuits have held that courts may consider state-law controlled substance offenses under § 2K2.1(a)(4)(A).

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Jones argues that a federal-law-only approach is necessary to ensure that the Guidelines

are interpreted uniformly. (22-1280, Appellant Br., p. 12–16.) But his argument asks us to

ignore text for the broader goal of uniformity. We decline to do so and go with the text of the

Guidelines. See United States v. Ruth, 966 F.3d 642, 654 (7th Cir. 2020) (“Congress was well

aware of the significant variations that existed in state criminal law.” (quoting Whitfield, 726 F.

App’x at 376)).

In sum, because a “controlled substance offense” under U.S.S.G. § 4B1.2(b) includes

crimes committed under state law and Jones makes no other argument that his state conviction

doesn’t meet the standard of “controlled substance offense” under § 4B1.2(b), we decline to

disturb the district court’s application of this enhancement.6

Jones next argues that the court erred in applying a sentencing enhancement for reckless

endangerment during flight. We “review the district court’s factfinding for clear error” and give

See Lewis, 58 F.4th at 769–71; Ward, 972 F.3d at 371–74; United States v. Ruth, 966 F.3d 642, 651–54 (7th Cir.

2020); United States v. Henderson, 11 F.4th 713, 718–19 (8th Cir. 2021), cert. denied, 142 S. Ct. 1696 (2022);

United States v. Jones, 15 F.4th 1288, 1291–96 (10th Cir. 2021).

On the other side of the ledger, the Second, Fifth, and Ninth Circuits have only defined controlled

substances according to the Controlled Substances Act, refusing to look at state law in that determination. See

United States v. Townsend, 897 F.3d 66, 68, 71 (2d Cir. 2018); United States v. Gomez-Alvarez, 781 F.3d 787, 793–

94 (5th Cir. 2015) (encountering a different Guidelines provision but only looking to federal law to define

“controlled substance”); United States v. Bautista, 989 F.3d 698, 702–04 (9th Cir. 2021). It’s worth noting that

these circuits employ either a presumption that “the application of a federal law does not depend on state law unless

Congress plainly indicates otherwise,” see Townsend, 897 F.3d at 71 (citing Jerome v. United States, 318 U.S. 101,

104 (1943)), or turn to the “stated goals of both the Guidelines and the categorical approach,” Bautista, 989 F.3d at

702; Gomez-Alvarez, 781 F.3d at 793–94 (adopting the reasoning of a Ninth Circuit case that looked to the broad

“vision” of uniformity). But there’s no need to apply this presumption or turn to broad “goals” because the text of

the Guidelines is clear—and it incorporates state law as an avenue for controlled substance offenses. See Perez, 736

F.3d at 741 (explaining that only “if the text alone does not admit a single conclusive answer,” do we “draw on a

broader range of interpretive tools”).

Jones argues in the alternative that the rule of lenity should apply. (22-1280, Reply Br., p. 15–16.) Jones

did not raise this issue in his opening brief, despite discussing the construction of § 4B1.2(b). “We have consistently

held . . . that arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker, 629 F.3d 554,

579 (6th Cir. 2010). And, though the rule of lenity applies to interpretation of the Guidelines, United States v.

Henry, 819 F.3d 856, 871 (6th Cir. 2016), it doesn’t have a place here. “[T]he rule of lenity only applies if, after

considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute,

such that the Court must simply guess as to what Congress intended.” United States v. Castleman, 572 U.S. 157,

172–73 (2014) (quoting Barber v. Thomas, 560 U.S. 474, 488 (2010)). Because the structure and plain meaning of

the text establish that the court may consider state law in determining predicate offenses under § 4B1.2(b), there is

no “grievous ambiguity.” Id.

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“due deference” to a district court’s application of the Guidelines to the facts. United States v.

Wallace, 51 F.4th 177, 183 (6th Cir. 2022) (citation omitted).

The Guidelines provide for a two-level enhancement where “the defendant recklessly

created a substantial risk of death or serious bodily injury to another person in the course of

fleeing from a law enforcement officer.” U.S.S.G. § 3C1.2. For this provision to apply, the

government had to show that Jones

(1) recklessly, (2) created a substantial risk of death or serious bodily injury, (3) to

another person, (4) in the course of fleeing from a law enforcement officer,

(5) and that this conduct occurred during the commission of the offense of

conviction, in preparation for that offense, or in the course of attempting to avoid

detection or responsibility for that offense.

United States v. Mukes, 980 F.3d 526, 536 (6th Cir. 2020) (quoting United States v. Dial, 524

F.3d 783, 786–87 (6th Cir. 2008)). And the government had to “link a specific aspect of the

flight with a specific risk.” Id. (cleaned up).

A defendant who “draw[s] a gun in front of officers,” and in doing so “provoke[s] a

substantial risk that officers would open fire and perhaps injure other officers or bystanders”

would be subject to the enhancement. United States v. Brooks, 763 F. App’x 434, 440 (6th Cir.

2019) (explaining that this enhancement applies even when officers don’t “know whether a

firearm is loaded or unloaded” because “pulling out any firearm in view of police officers while

in flight creates a risk that officers might fire their weapons” (citing United States v. Tasaki, 510

F. App’x 441, 444–45 (6th Cir. 2013)).

Here, witnesses reported that Jones had been shooting in the air outside his home all day.

Police observed Jones fire one shot in front of his residence before he fled inside. Jones

remained in the residence with two other individuals and refused to come out. At sentencing, the

government argued that based on this conduct, Jones “created a substantial risk to everyone

involved,” including Jones, “the officers involved, and the people inside the residence and

outside.” (22-1280, R. 36, Sentencing Transcript, p. 6.) The district court agreed and applied the

enhancement. And under our caselaw, the district court didn’t abuse its discretion in doing so.

Jones’s actions created a “substantial risk” that officers would fire and “injure” innocent

bystanders. Brooks, 763 F. App’x at 440.

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At sentencing and now before us, Jones points to United States v. Fields, 210 F.3d 386

(9th Cir. 2000) (unpublished table decision), for the proposition that, even when a defendant

barricades himself in a residence with other people, he should not receive a reckless

endangerment enhancement. The district court disagreed. And Jones argues that this was error.

(22-1280, Appellant Br., p. 29.)

Fields didn’t bind the district court, and it doesn’t bind us either. Under our caselaw, the

facts of this case warranted the enhancement. Importantly, even considering Fields, our case is

distinguishable on the facts. In Fields, the district court had “attribut[ed] others’ conduct to [the]

defendants,” rather than look at the defendants’ conduct alone in determining whether the

enhancement should apply. See 210 F.3d at *4. And the PSR in Fields “fail[ed] to attribute any

wrongful conduct regarding the actual flight to either defendant.”

Id.

But Jones’s PSR

established that he fired a shot in front of the officers before fleeing into his home and creating a

barricaded gunman situation. So unlike in Fields, the facts establish that Jones’s own actions

created a risk that officers would open fire in pursuit, putting Jones, the officers, and bystanders

at risk of death or serious bodily harm.

In all, the district court did not err in finding that Jones recklessly created a risk of serious

bodily harm during his flight from police.

III.

We next turn to Jones’s challenges to his sentence for violating his supervised release.

He argues that the district court imposed a procedurally and substantively unreasonable two-year

sentence, with half to be served consecutively and half to be served concurrently to his ten-year

firearm sentence. Where a defendant properly objects below, we review claims of procedural

and substantive unreasonableness for an abuse of discretion. Gall v. United States, 552 U.S. 38,

51 (2007).

We first review the procedural reasonableness of Jones’s sentence.

Jones properly

objected, so we review this argument for abuse of discretion. Id. From the start, it’s Jones’s

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burden to establish that the district court imposed a procedurally unreasonable sentence. United

States v. Sands, 4 F.4th 417, 420 (6th Cir. 2021).

And, in determining whether he has met that burden, we evaluate whether the district

court

(1) properly calculated the applicable advisory Guidelines range; (2) considered

the other [18 U.S.C.] § 3553(a) factors as well as the parties’ arguments for a

sentence outside the Guidelines range; and (3) adequately articulated its reasoning

for imposing the particular sentence chosen, including any rejection of the parties’

arguments for an outside-Guidelines sentence and any decision to deviate from

the advisory Guidelines range.

United States v. Adams, 873 F.3d 512, 517 (6th Cir. 2017) (alteration in original) (quoting United

States v. Bolds, 511 F.3d 568, 581 (6th Cir. 2007)).

A district court may revoke a defendant’s supervised release “after considering the factors

set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7).”

18 U.S.C. § 3583(e).

Section 3553(a)(2)(A), which requires the sentence “to reflect the

seriousness of the offense, to promote respect for the law, and to provide just punishment for the

offense,” is not included as one of the considerations of § 3583(e). Still, courts may, but are not

required to, consider § 3553(a)(2)(A) during sentencing for a supervised-release violation. See

United States v. Lewis, 498 F.3d 393, 399–400 (6th Cir. 2007).

Jones argues that his sentence was procedurally unreasonable because the district court

treated the seriousness of his offense under § 3553(a)(2)(A) as a mandatory factor in a

supervised-release resentencing, even though that factor is only discretionary.

In coming up with the appropriate sentence for Jones, the court said that it would

“consider the relevant factors set out by Congress in [18 U.S.C. §] 3553(a) . . . . This includes

considering the need for a sentence to promote respect for the law, deter criminal conduct,

protect the public from future crimes to be committed by the defendant, and promote

rehabilitation.” (22-1281, R. 23, Sentencing Transcript, p. 13.) And the court observed that it

“[wa]s also to consider the nature and circumstances of the offense,” which it said were

“serious.” (Id.)

APP 012

Case: 22-1280

Nos. 22-1280/1281

Document: 32-2

Filed: 08/29/2023

United States v. Jones

Page: 13

Page 13

Jones argues that these statements reflect that the court thought it had to consider

§ 3553(a)(2)(A) in imposing its sentence—even though consideration of that factor is

discretionary. (22-1281, Reply Br., p. 1.) We disagree. At no point did the court say that it was

required to consider § 3553(a)(2)(A).

Instead, it considered the seriousness of the firearm

offense and the underlying prostitution offense with the other § 3553(a) factors enumerated in

18 U.S.C. § 3583(e), which it was allowed do. So Jones hasn’t met his burden to show that the

district court abused its discretion. Lewis, 498 F.3d at 399–400.7 And with that, Jones hasn’t

demonstrated that his sentence was procedurally unreasonable.

Finally, Jones argues that his two-year sentence for the violation of his supervised release

was substantively unreasonable. We give a within-Guidelines sentence a rebuttable presumption

of reasonableness and review for an abuse of discretion. United States v. Adams, 873 F.3d 512,

520 (6th Cir. 2017). Substantive reasonableness focuses on whether a “sentence is too long (if a

defendant appeals) or too short (if the government appeals).” United States v. Rayyan, 885 F.3d

436, 442 (6th Cir. 2018). “It’s a complaint that the court placed too much weight on some of the

§ 3553(a) factors and too little on others in sentencing the individual.” Id.

The court calculated Jones’s Guidelines range as 18 to 24 months. Jones requested that

the court apply the sentence concurrently to his sentence for the firearm violation, while the

government requested that it impose an 18-month consecutive sentence. The court chose to

impose a 24-month sentence, half of which would be served consecutively and half of which

would be served concurrently. And this was more favorable to Jones than the Guidelines

recommendation. U.S.S.G. § 7B1.3(f) (“Any term of imprisonment imposed upon the revocation

of probation or supervised release shall be ordered to be served consecutively to any sentence of

imprisonment that the defendant is serving . . . .”).

The government seems to argue that Jones has no viable argument about § 3553(a)(2)(A) because in its

view that provision only applies to the underlying prostitution offense, and, according to the government, the district

court didn’t discuss the prostitution offense in determining the seriousness of the offense. (22-1281, Appellee Br., p.

18.) But the government’s view is incorrect because the district court did consider the prostitution offense, as it was

allowed to do under § 3553(a)(2)(A). United States v. Johnson, 640 F.3d 195, 204 (6th Cir. 2011). Even so, the

district court also properly considered the firearm offense—the violation conduct—when it sanctioned Jones’s

“breach of trust.” United States v. Morris, 71 F.4th 475, 482 (6th Cir. 2023).

APP 013

Case: 22-1280

Document: 32-2

Nos. 22-1280/1281

Filed: 08/29/2023

United States v. Jones

Page: 14

Page 14

Jones argues that his sentence was substantively unreasonable because the court placed

too much weight on the seriousness of the offense. Citing Third Circuit precedent, Jones argues

that even if the consideration of the seriousness of the offense is not “per se unreasonable,” the

court may err in placing “undue weight” on that factor. (22-1281, Appellant Br., p. 16–17 (citing

United States v. Young, 634 F.3d 233, 241 (3d Cir. 2011).)

The court did not place undue weight on the seriousness of Jones’s offense. The court

“consider[ed] the relevant factors set out by Congress in [18 U.S.C. §] 3553(a) . . . [including but

not limited to] the need for a sentence to promote respect for the law, deter criminal conduct,

protect the public from future crimes to be committed by the defendant, and promote

rehabilitation.” (22-1281, R. 23, Sentencing Transcript, p. 13.) And the court noted that,

together, with the Guidelines, it had to consider “the nature and circumstances of the offense, the

history and characteristics of the defendant and the need to avoid unwarranted sentencing

disparities among similarly situated defendants.” (Id. at 12–13.) Further, it considered Jones’s

criminal history as a mitigating factor. (Id. at 14.)8 Although it discussed the seriousness of

Jones’s offense, nothing in the record suggests that it gave sole or undue weight to that factor.

Because the court adequately weighed the § 3553(a) factors in imposing a withinGuidelines sentence, his sentence was not substantively unreasonable.

IV.

For these reasons, we affirm.

Jones argues that the court erred in not considering the recent death of his child’s mother and his fear that

his child would end up in foster care. (22-1281, Appellant Br., p. 17.) But we have found that a court’s failure to

explicitly address a particular mitigation argument isn’t enough to make a sentence unreasonable, especially when

the court considers other factors at length. United States v. Sogan, 388 F. App’x 521, 524 (6th Cir. 2010) (per

curiam) (citing United States v. Berry, 565 F.3d 332, 340–41 (6th Cir. 2009)).

APP 014

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.242 Filed 04/29/22 Page 1 of 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

No. 21-cr-20435

T'SHAUN JONES,

Defendant.

_________________________/

SENTENCE

BEFORE THE HONORABLE GERSHWIN A. DRAIN

UNITED STATES DISTRICT JUDGE

Theodore Levin United States Courthouse

231 West Lafayette Boulevard

Detroit, Michigan

Monday, March 21, 2022

APPEARANCES:

For the Plaintiff:

MS. DIANE NICOLE PRINC

U. S. Attorney's Office

211 West Fort Street

Detroit, Michigan 48226

(313) 600-9215

For the Defendant:

MR. BENTON C. MARTIN

Federal Defender Office

613 Abbott Street

Detroit, Michigan 48226

(313) 967-5832

Reported by:

Merilyn J. Jones, RPR, CSR

Official Federal Court Reporter

merilyn_jones@mied.uscourts.gov

APP 015

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.243 Filed 04/29/22 Page 2 of 21

TABLE OF CONTENTS

WITNESSES:

None

PLAINTIFF

WITNESSES:

None

DEFENDANT

PAGE

OTHER MATERIAL IN TRANSCRIPT:

Proceedings

EXHIBITS:

None

Identified

Received

APP 016

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.244 Filed 04/29/22 Page 3 of 21

Detroit, Michigan

Monday, March 21, 2022 - 11:16 a.m.

THE CASE MANAGER:

All rise.

The United States

District Court for the Eastern District of Michigan is now in

session.

The Honorable Gershwin A. Drain presiding.

Please be seated.

Calling the Criminal Action Number 21-CR-20435-1,

United States of America versus T'Shaun Jones

Counsel, please state your appearances for the record.

MS. PRINC:

States, Diane Princ.

THE COURT:

Good morning.

MR. MARTIN:

Good morning, your Honor. Benton Martin

Good morning.

on behalf of T'Shaun Jones.

table.

On behalf of the United

He's seated with me at counsel

THE COURT:

All right.

You may be seated.

All right.

Today is the date set for sentencing in

Good morning, Mr. Martin.

this matter.

And, let's see, Mr. Martin, I think you -- I've got

some objections that you have to the presentence report, and I

don't know if they were resolved in any way, but if there's a

record that needs to be made with regard to this matter, I'm

prepared to hear what you have to say.

MR. MARTIN:

Thank you, your Honor.

We had three

APP 017

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.245 Filed 04/29/22 Page 4 of 21

objections that remained outstanding.

The first is really just a factual description issue;

in that, the presentence report described my client's actions as

having barricaded himself, and I had asked that it track the

language in the Rule 11 Plea Agreement that said one of the

officers declared a barricaded gunman and eventually Jones

emerged from the residence.

That really ties in with my third objection, which is

to the enhancement for reckless endangerment during flight.

cited a case, United States versus Fields, that I think is on

point, where some people involved in a robbery had run into a

house and there were six hours that they were, taken refuge in

the building before they were ordered out and tear gas was sent

in and there were no threats made by individuals and there was

no violence or physical violence conducted by the individuals

and the Ninth Circuit there found that the reckless endangerment

during flight enhancement was not appropriate.

I believe the same is true here.

Mr. Jones fled into

a building.

He made no threats against the officers and when

officers were able to make contact with one of the individuals

in the home, they emerged and were detained.

So, I do not believe that there are actions here that

would rise to a level of putting, of creating a reckless risk of

danger to physical safety of anyone.

The other --

APP 018

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.246 Filed 04/29/22 Page 5 of 21

THE COURT:

Let's stop right there and let he hear

what the government's response is to those first two, about the

presentence report and the language of it and, secondly, with

regard to the, let's see, what's the language that's used here?

"Reckless endangerment" and the enhancement for that.

All right.

MS. PRINC:

I'll start by, I guess, the government has no

Yes.

Thank you, your Honor.

objection to changing the language to what is preferred by the

defense.

enhancement applies that's based on the facts.

It's really your Honor's determination of whether the

THE COURT: Let me stop you right there for a minute.

MS. PRINC:

Yes.

THE COURT:

Let's change the language in the

presentence report and have it track the language that's in the

Rule 11 Plea Agreement.

PROBATION OFFICER: Yes, your Honor.

THE COURT: Okay.

MS. PRINC:

But I will say as for whether the

enhancement applies, the government submits that it does in this

case.

First, if just considering the facts in this case

where the defendant was observed shooting one round by the

police and then he fled from them, went inside this residence

and refused to come out.

Whatever terminology we use to apply

APP 019

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.247 Filed 04/29/22 Page 6 of 21

to that scenario, I think it's fair to conclude by a

preponderance that that created a substantial risk to everyone

involved both to Mr. Jones, himself, the officers involved, and

the people inside the residence and outside.

You have someone who's observed with a gun, exiting,

running from the scene and barricading himself or putting

himself in and refusing to come out.

think it's a fair conclusion on those facts to say that the

defendant's flight created a substantial risk to all involved.

THE COURT:

Okay.

Officers are armed and I

I'm going to leave it as it is.

I'm not going to follow that Ninth Circuit case.

Sixth Circuit and so I'm going to leave that enhancement there.

All right.

We're in the

Mr. Martin, you had one other one,

objection?

MR. MARTIN:

Yes, your Honor.

THE COURT:

All right.

MR. MARTIN:

And that is in regards to his prior

conviction being used as a controlled substance offense as

defined in the guidelines.

Judge Tarnow, United States versus Lofton, that I cited that

addresses the fact that Michigan's definition of controlled

substances, specifically cocaine and heroin, are broader than

the federal definition.

We have a case that was issued by

So, in a sense, Michigan criminalizes certain isomers

of these drugs that are not criminalized by the federal statute.

APP 020

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.248 Filed 04/29/22 Page 7 of 21

Because of that, those -- Judge Tarnow found that that cannot

count as a controlled substance offense.

There's a similar decision from Judge Jarbou in the

Western District of Michigan.

THE COURT:

Judge who?

MR. MARTIN:

Jarbou.

THE COURT:

How do you spell that?

MR. MARTIN:

It's J-A-R-B-O-U.

THE COURT: Okay.

MR. MARTIN:

She used to be an assistant US Attorney

in our district, your Honor.

THE COURT:

Okay.

MR. MARTIN:

And they noted that the Sixth Circuit has

not specifically addressed this question about whether this is

a -- these are controlled substances offenses in relation to

this argument about the breadth of the definition of Michigan

controlled substance.

So, we would ask you to find that it's not a

controlled substance offense.

THE COURT:

Okay.

MS. PRINC:

Yes.

THE COURT:

-- response?

MS. PRINC:

I'm sorry, your Honor.

THE COURT:

You have a response to that argument?

MS. PRINC:

Yes.

Government, your --

APP 021

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.249 Filed 04/29/22 Page 8 of 21

THE COURT:

Okay.

MS. PRINC:

We would just ask, your Honor, disagreeing

with the decision in Lofton and submit it's not binding on this

court and ask your Honor to follow the well-settled Sixth

Circuit, as it currently stands, law finding that convictions

under the Michigan Drug Delivery Criminal Statutes qualify as

controlled substance offenses.

conviction and the prior conviction for this defendant.

no dispute about that.

Those were the, that was the

There's

And the Sixth Circuit most recently reaffirms that in

its holding from January 5th of 2022 in the United States

versus Watkins, which we cited in our sentencing memo.

Thank you, your Honor.

THE COURT:

dealing with the isomer issue?

MS. PRINC:

It was not.

And it was "Watkins".

THE COURT:

I'm sorry.

"Watkins".

Did you say it dealt with that issue or not?

MS. PRINC:

Was that -- was Watson[sic] actually

It did not.

It just reaffirmed that

long-standing principle.

THE COURT:

Okay.

All right.

This is kind of a new issue and it really,

I don't think, matters that much in this case because there's a

sentence agreement, but as the defense has argued, the

guidelines should be appropriately scored.

APP 022

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.250 Filed 04/29/22 Page 9 of 21

And so, I think I'm going to -- I'm not going to

follow that Lofton case at this point, and I'm going to wait

until the Sixth Circuit makes a decision on the issue.

because it really doesn't matter ultimately here what the

guidelines are, because there's a sentence agreement.

Again,

But if the Sixth Circuit makes a decision on the case,

Mr. Martin, feel free to come back and clarify the guidelines

based on some new law in the Sixth Circuit about that isomer

issue.

All right.

So I'm going to leave that scored as it is

and, let's see, were there any other issues or objections to the

presentence report or the sentencing guidelines?

MS. PRINC:

I do not believe so.

no objections.

Thank you, your Honor.

THE COURT:

Mr. Martin?

MR. MARTIN:

No, your Honor.

THE COURT:

Okay.

acknowledgments here.

The government had

All right.

And let me make a few

I did get a sentencing memorandum from the government,

which I had a chance to review.

And, Mr. Martin, you also submitted a sentencing

memorandum, and I want to acknowledge the fact that there were a

couple of letters attached to your sentencing memorandum that I

did read.

APP 023

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.251 Filed 04/29/22 Page 10 of 21

I got a letter from his, the defendant's mother, Ms.

Barbara Nance.

I had a chance to read that.

I also got a letter from Jazzmin, is it "Price" or

"Prince"?

MR. MARTIN:

"Price", your Honor.

THE COURT:

"Price".

So, I got a chance to read that also.

So, I wanted to just acknowledge those letters that

were attached to the presentence, or that were attached to your

sentencing memorandum.

All right.

Then, Mr. Martin, is there anything else

you want to say with regard to the sentence to be imposed in

this case?

MR. MARTIN:

Yes.

Thank you, your Honor.

I want to highlight just a couple of things that were

mentioned in my sentencing memo, but to emphasize to the Court,

including acknowledging that Ms. Price is here today, as well as

Mr. Jones's uncle, in support of him.

The longest that he's previously served was a prior

federal sentence that he had in which he was given, I believe,

27 months, but served ultimately less than two years because he

received all of his good time.

while he was in the bureau of prisons.

He had no disciplinary issues

This is a dramatic increase from the amount of time

that he's previously served, and I think that this sentence and

APP 024

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.252 Filed 04/29/22 Page 11 of 21

the sentence that he's been serving has had a profound effect on

him, in particular, because of what happened recently with the

tragic death of his -- the mother of one of his children.

She had a sudden heart attack and was in the hospital,

eventually declared that she had no cognitive functions and

perished, and that's the mother of six year old.

You know, he's got issues here today and we've had

conversations about that event and I know how profoundly it has

affected him that he has been incarcerated that entire time and

that he is going to not be there for London is deeply moving to

him.

And more than anything this court could impose, I

think that that experience has served as a wake-up call for him.

I mean, we've talked about it.

this, the trouble that he has gotten in in the past.

He says, I'm done, meaning,

He's someone who is really committed and he has been

committed to wanting to be there for his children and the fact

that this has happened.

custody arrangements right now.

going to be able -- and they were sisters, your Honor.

mother of his child and Ms. Price, who's here today, who is his

fiancee were actually sisters, and so, Ms. Price is here today,

the aunt of the child in question.

I know they're working through the

It looks like Ms. Price is

The

And they really banded together to try and support

this young child and I think the Court can just see how much it

APP 025

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.253 Filed 04/29/22 Page 12 of 21

affects him and I think that that is a further emphasis that no

longer term of incarceration is required to serve the purposes

of sentencing in this case.

THE COURT:

All right.

Ms., is it, "Princ"?

MS. PRINC:

It is "Princ", your Honor.

THE COURT:

"Princ".

MS. PRINC:

It's spelled without the E.

THE COURT:

All right.

MS. PRINC:

Thank you, your Honor.

As your Honor stated, this is an agreed upon sentence,

Okay.

but it's a fair sentence and all the parties have agreed to it

and I submit based on all the factors before you, the crime in

this case warrants a 10-year sentence.

This is a -- the defendant's actions in this case were

alarming.

home and police observed him shoot one shot, but there were

eyewitnesses who said he had been shooting all day and spent

shells were recovered.

The defendant was observed shooting outside of his

As I said earlier, he went inside his home and refused

to come out, creating, I'll call it a barricaded gunman

situation, but whatever you call it, as I said, it created a

risk for all involved.

At the time the defendant was on federal supervised

release for a prior conviction for attempted transport of an

individual to engage in prostitution.

APP 026

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.254 Filed 04/29/22 Page 13 of 21

He had multiple prior felonies prior to that.

were for a variety of offenses from another criminal possession

of a weapon here in Michigan where he also possessed a firearm

and then there were multiple controlled substances offenses.

They

All those factors weigh in favor of this sentence that

was agreed upon by the parties.

The defendant was initially

charged as an armed career criminal, being a felon in possession

of a weapon, but pursuant to the agreement, the government

agreed to dismiss that charge, which would have exposed the

defendant to 15 years, and we've entered into this agreement for

10 years.

And I submit that sentence recognizes the seriousness

of the offense, this defendant's lengthy criminal history, which

culminated in this offense, as well as, the fact that the

defendant hasn't been sentenced to that long of a sentence

before.

It's hoped that he is done, because it would benefit

all of society if upon his release 10 years from now he does not

re-offend and contributes to society, helps his family, and

becomes a productive member.

So, for all these reasons we are asking your Honor to

impose the agreed upon sentence.

Thank you.

THE COURT:

release violation; can tell us?

What's the status of the supervised

APP 027

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.255 Filed 04/29/22 Page 14 of 21

PROBATION OFFICER: Yes, your Honor.

remains pending and is scheduled for Thursday.

The violation

THE COURT:

Who is it in front of?

MS. PRINC:

It's in front of Judge Steeh.

THE COURT:

Judge Steeh.

All right.

Mr. Jones, you have a chance to speak now.

Okay.

Good enough.

Is there anything you want to say prior to the sentencing in

this matter?

THE DEFENDANT:

I'd like to apologize first to my

family for putting them through this.

and I take full responsibility for it.

I made a horrible mistake

But I've lost a lot since I've been in this, your

Honor.

I didn't get to go see my daughter's mom buried.

daughter has nightmares.

asking me:

to tell her.

She's only six years old and she keeps

"Dad, when you coming home"?

And I don't know what

I don't want to get in trouble no more.

just want to say I'm sorry.

time.

family hurting behind this.

I'm sorry.

I really learned my lesson this

I never did time like this and I'm really hurting and my

I want to apologize to the courts, and I wanted to ask

if you could just be lenient, please.

I need to get home to my

daughter.

foster care if Jazzmin can't get her, because she got temporary

guardianship and they trying to put her in foster care.

Because if I don't get there, they might put her in

APP 028

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.256 Filed 04/29/22 Page 15 of 21

But I take full responsibility for what I did and I

apologize to the Court and my family.

I'm sorry, ya'll.

That's it.

THE COURT:

I guess, the challenging part about this sentencing is

All right.

Thank you, Mr. Jones.

the fact that it was a sentence agreement here and essentially

the defendant agreed to a particular sentence.

agreed to it, defendant, defense counsel, and so, when

agreements are made, everybody is bound by them.

The government

And so, I can't say that this sentence is an

unreasonable sentence, because the conduct involved was pretty

serious in terms of guns, I mean, a gun being fired, supposedly,

multiple times; the defendant's conduct after the police came to

the scene, and him fleeing and going into his home and doing

certain things inside of the home, too, that were consistent

with a barricaded situation.

And so, the conduct and the nature of the offense and

the circumstances of the offense are very serious.

The Court

also, aside from looking at the nature and the circumstances of

the offense, has to look at the history and characteristics of

the defendant.

tried to be a good father, he -- there's been some things

lacking with respect to his, I think it's like five children and

different moms.

And even though the defendant has, I guess,

APP 029

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.257 Filed 04/29/22 Page 16 of 21

And then I look at the defendant's criminal history

and the defendant is, I think, 42 now, or somewhere in that

area, and the defendant has a criminal history that goes all the

way back to '99, which is a time when he was 19 years of age.

And so, there's a number of controlled substances

convictions, several of which he received relatively minor

sentences.

it all culminating in the conviction that he had in front of

Judge Steeh, or which he was convicted, I think, of some type of

transporting females for prostitution for which he received a

sentence of 27 months and he's still on supervised release for

that.

There's a whole lot of traffic incidents.

And just

And so, you know, the sentence agreement does not seem

unreasonable, given the defendant's criminal history and still

being under supervision to Judge Steeh of our court.

And then, there really isn't much of an employment

history here.

number of other things that don't bode very well for Mr. Jones.

There's some substance abuse issues.

There are a

And then the Court has to look at deterrence, and

deterrence, I think, that it's an appropriate sentence from a

deterrence perspective because the defendant has had a number of

different sentences, none of which were as long as this sentence

agreement, and none of those sentences deterred the defendant

from committing new criminal, new crimes.

So, you know, looking at all of the 3553(a) factors

APP 030

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.258 Filed 04/29/22 Page 17 of 21

that the Court has to consider, the nature and circumstances of

the offense, the defendant's history and characteristics, a

sentence that promotes respect for the law and provides a just

punishment is appropriate.

So, I think the sentence agreement is reasonable and

not beyond the bounds of what's necessary to fulfill the

principles for sentencing.

And so, with that, it is the judgment and sentence of

the Court that pursuant to the Sentencing Reform Act of 1984 and

the Court looking at the guidelines in the case, which were

originally computed to be -- and I need to put these on the

record.

department to be 77 to 96 months, and even though the guidelines

are below the sentence agreement, they could have been higher,

given the original charge in the case.

The guidelines were computed by the probation

So, looking at those sentencing guidelines, and,

again, the 3553(a) factors, the Court commits the defendant to

the Bureau of Prisons for a term of 120 months.

And upon Mr. Jones' release from custody, he's going

to be placed on supervised release for a term of three years and

there will be a special assessment of $100 that is due

immediately.

I'm going to waive the imposition of a fine, the cost

of incarceration, and the cost of supervision due to the

defendant's lack of financial resources.

APP 031

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.259 Filed 04/29/22 Page 18 of 21

And as part of the supervised release, there will be

the standard conditions of supervised release in addition to the

following special conditions of supervised release:

The defendant will be required to submit a DNA sample

to the probation department when they request it.

The defendant will also be required to participate in

a mental health treatment program as part of supervised release.

I'm also going to require that the defendant

participate in a substance abuse treatment program as deemed

necessary by the probation department, and I'm also going to

require as a special condition of supervised release that the

defendant participate in a cognitive behavioral treatment

program; that he'll be required to follow the rules and

regulations of that program.

I'm going to also require that the defendant obtain

employment and maintain employment during the course of the

supervised release.

And, lastly, as far as supervised release, I'm going

to allow the probation department and his probation officer to

do a search of his papers, residence, place of business, place

of employment upon reasonable suspicion that there is a

violation existing or that there's contraband or evidence of a

violation of a conditions of supervised release.

And so, those are the special conditions of supervised

release.

APP 032

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.260 Filed 04/29/22 Page 19 of 21

Mr. Jones, I think, waived his right to appeal at the

time of the plea, but there are some certain circumstances in

which there is 22, I think, 54 or 55 relief that may be

available as a result of prosecutorial misconduct or ineffective

assistance of counsel.

And so, again, that's the sentence of the Court.

Mr. Martin, do you have any recommendation in terms of

designation of a facility for the Court to make?

MR. MARTIN:

Yes, your Honor.

We'd ask you to make a

recommendation to Milan.

THE COURT:

Okay.

And I will make that

recommendation and put that on the judgment and commitment that

the Court signs.

All right.

Anything else to take up with the

sentencing of this matter?

MS. PRINC:

No.

Thank you, your Honor.

MR. MARTIN:

Your Honor, just for the purposes if

there is an appeal, to the extent I need to preserve my

objections to the two guideline issues, I would say that we're

preserving those.

THE COURT:

Okay.

All right.

And, you know, as I

mentioned, if I recall correctly in looking at the Rule 11 Plea

Agreement, I think he did waive his right to appeal.

MR. MARTIN:

I don't believe so, your Honor.

THE COURT:

No?

What does that --

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Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.261 Filed 04/29/22 Page 20 of 21

MR. MARTIN:

At least the copy I have.

THE COURT:

Let me look at the --

MR. MARTIN:

He preserved his right to appeal any

sentence above the guideline range as determined by the Court.

THE COURT:

Okay.

MR. MARTIN:

And so, this would be an above guideline

THE COURT:

Okay.

But the sentence agreement doesn't become the

sentence.

guideline that's applicable here?

MR. MARTIN:

I don't believe so, your Honor.

believe the guidelines are the 77 to 96 months.

THE COURT:

What's your response to that, Ms. Princ?

Do you have any comment?

MS. PRINC:

"If defendant's sentence of imprisonment does not

exceed the top of the guideline range determined by the

Court, the defendant also waives any right he may have to

appeal..."

THE COURT:

It does say in the Rule 11 Agreement:

Okay.

Well, then, maybe he does still

have his right to appeal the sentence, and I won't get into a

thing about that, but, I guess, there is from the Rule 11, and

I'm not sure what the other provisions of it says, but --

Then, that's preserved, Mr. Martin.

MR. MARTIN:

Okay.

APP 034

Case 2:21-cr-20435-GAD-DRG ECF No. 36, PageID.262 Filed 04/29/22 Page 21 of 21

THE COURT:

Anything else before we recess?

MS. PRINC:

No.

Thank you, your Honor.

MR. MARTIN:

No.

Thank you, your Honor.

THE COURT:

Okay.

Then we will be in recess.

THE CASE MANAGER:

Court is in recess.

All rise.

(At 11:45 a.m. proceedings concluded)

C E R T I F I C A T E

I, Merilyn J. Jones, Official Court Reporter of the

United States District Court, Eastern District of Michigan,

appointed pursuant to the provisions of Title 28, United States

Code, Section 753, do hereby certify that the foregoing pages

1-20, inclusive, comprise a full, true and correct transcript

taken in the matter of the United States of America versus

T'Shaun Jones, 21-cr-20435 on Monday, March 21, 2022.

/s/Merilyn J. Jones

Merilyn J. Jones, CSR 0935, RPR

Federal Official Reporter

231 W. Lafayette Boulevard

Detroit, Michigan 48226

Date: April 29, 2022

APP 035

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.