United States v. Jenkins

1

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH ALAN JENKINS, Defendant-Appellant.

No. 23-6198

United States Court of Appeals, Tenth Circuit

October 29, 2024

(D.C. No. 5:22-CR-00406-R-1) (W.D. Okla.)

Before PHILLIPS, BALDOCK, and FEDERICO, Circuit Judges.

ORDER AND JUDGMENT^[*]

Gregory A. Phillips Circuit Judge

Joseph Alan Jenkins appeals his 72-month prison sentence for unlawful possession of a firearm after a prior felony conviction in violation of 18 U.S.C. § 922(g)(1). Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

I. Background

In August 2022, Mr. Jenkins's girlfriend reported that he had knocked her unconscious, kept her locked in their residence, then threatened to kill her and her family if she spoke to police. When police searched the residence, they found two guns. Mr. Jenkins was charged in state court with domestic abuse, kidnapping, and planning or threatening a violent act, Okla. Stat. tit. 21, §§ 644.1, 741, 1378. Those charges were later dismissed due to a lack of victim cooperation.

In this case, Mr. Jenkins was indicted for a single count under § 922(g)(1) for possession of the guns found in the residence. He pled guilty without a plea agreement. A presentence investigation report (PSR) summarized his criminal history, which included six juvenile adjudications and seven adult convictions. Two of the convictions were for unlawful firearm possession. In both of those, he was reported to have used a gun while committing an assault. The PSR calculated an advisory sentencing range of 30 to 37 months under the U.S. Sentencing Guidelines. Neither party disputed that calculation. The PSR also noted reasons the court might impose an above-guidelines sentence, including Mr. Jenkins's criminal history, the guidelines' failure to account for the alleged assault and kidnapping and concerns with gun possession tied to domestic violence.

In a sentencing memorandum, Mr. Jenkins argued for a sentence at the bottom of the advisory guidelines range. He emphasized difficulties in his personal history and argued he had not used the guns underlying the § 922(g)(1) conviction in any crime, including the alleged assault and kidnapping. In objections to the PSR, he disputed his girlfriend's allegations. He also objected to the PSR's narrative descriptions of his prior gun convictions and its citation to a report about domestic violence prepared by the Oklahoma Attorney General's office.

At sentencing, Mr. Jenkins recognized that the court might impose a "prolonged" sentence based on his criminal history, R. Vol. 3 at 6, and that it could also consider the circumstances of the alleged assault and kidnapping. He argued his criminal history warranted a sentence near the top of the guidelines range but not above it, given his personal history and the lack of evidence that he had used the guns underlying his conviction in a crime. The government argued for a sentence at or above the top of the guidelines range.

The district court imposed a sentence of 72 months. The judge stated he had considered the PSR, Mr. Jenkins's memorandum, the parties' arguments, and the 18 U.S.C. § 3553(a) factors. He identified Mr. Jenkins's criminal history and dangerousness and the need to protect the public as reasons to impose an above-guidelines sentence:

I look back at your criminal history, and it's one that's replete with-with violence, drugs, and alcohol, and, of course, that's what led to this-this prosecution today.

It's just fortunate that you've never killed anybody. You haven't, but I consider you a danger to society, and I think-I agree with the recommendation from the probation office that an upward variance is appropriate.

With this in mind, it's the judgment of the Court the defendant is committed to the custody of the Bureau of Prisons for a term of 72 months.

R. Vol. 3 at 10. After advising Mr. Jenkins of his right to appeal and asking for any requested place of incarceration, the court then recessed without asking if there were other objections or anything else to address. In the written statement of reasons accompanying its judgment, the court indicated the upward variance was based on Mr. Jenkins's past violence, firearms convictions, and drug and alcohol use, as well as the need to protect the public.

Mr. Jenkins appeals, arguing his sentence is procedurally unreasonable because the district court's explanation was insufficient, and substantively unreasonable because it is too long.

II. Legal Standards

"[W]e review 'all sentences-whether inside, just outside, or significantly outside the Guidelines range-under a deferential abuse-of-discretion standard.'" United States v. Gross, 44 F.4th 1298, 1301 (10th Cir. 2022) (quoting Gall v. United States, 552 U.S. 38, 41 (2007)). "Our reasonableness review has two aspects: procedural and substantive." United States v. Cookson, 922 F.3d 1079, 1091 (10th Cir. 2019). Procedural reasonableness "consider[s] whether the district court committed any error in calculating or explaining the sentence." Id. (internal quotation marks omitted). Such errors might include "failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range." Gall, 552 U.S. at 51.

"When reviewing a sentence for substantive reasonableness, we focus on whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a)." Cookson, 922 F.3d at 1091 (internal quotation marks omitted).

III. Discussion A. Procedural Reasonableness

1. Standard of Review

We first must decide which standard of review to apply in addressing procedural reasonableness under the circumstances of this case. The government argues we should review only for plain error because Mr. Jenkins did not make a contemporaneous objection to the district court's explanation of its sentence. See United States v. Uscanga-Mora, 562 F.3d 1289, 1293 (10th Cir. 2009) ("[P]lain error review obtains when counsel fails to render a contemporaneous objection to the procedural adequacy of a district court's statement of reasons at sentencing.").

Mr. Jenkins argues the district court did not give him a fair opportunity to object after announcing its sentence, so our regular standard of review should apply. See id. at 1294 (stating plain error review applies "only when counsel has been given, but has not taken advantage of, an opportunity to voice his or her objection"). We apply our regular standard of review, both because the record is not clear as to whether Mr. Jenkins's counsel had a fair opportunity to make a contemporaneous objection, and because we would affirm under either standard.

2. Relevant Legal Principles

A party's argument that the district court "fail[ed] to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range"-is a challenge to procedural reasonableness. Gall, 552 U.S. at 51. However, an adequate explanation is also "relevant to whether the length of the sentence is substantively reasonable because a sentence is more likely to be within the bounds of reasonable choice when the court has provided a cogent and reasonable explanation for it." Cookson, 922 F.3d at 1091 (internal quotation marks and brackets omitted). "A limited, brief, or inconsistent explanation . . . puts at risk the substantive reasonableness of any decision the district court reached" by hindering appellate review. Id. (internal quotation marks and brackets omitted).

We address procedural reasonableness first. See Gall, 552 U.S. at 51 ("[The court of appeals] must first ensure that the district court committed no significant procedural error ...."). To adequately explain the sentence chosen, "[t]he sentencing judge should set forth enough to satisfy the appellate court that he has considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority." Rita v. United States, 551 U.S. 338, 356 (2007). "Sometimes the circumstances will call for a brief explanation; sometimes they will call for a lengthier explanation." Id. at 357. "Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so." Id. "[A] major variance should be supported by a more significant justification than a minor one." Cookson, 922 F.3d at 1092 (internal quotation marks and brackets omitted).

3. Analysis

Although the district court's explanation was brief, it does not preclude meaningful appellate review or leave us unsure it had a reasoned basis for the chosen sentence. The court explained it was varying upwards because of Mr. Jenkins's criminal history and the need to protect the public. These are valid reasons for varying above the guidelines under § 3553(a)(1) and (a)(2)(C), respectively, and supported by the record here, including the facts summarized in the PSR. Indeed, Mr. Jenkins acknowledged that his criminal history could lead to a lengthy sentence.

Mr Jenkins argues the district court should have offered a longer discussion or more detail, but he has not shown the explanation it gave was legally insufficient. District courts must provide "sufficient" reasoning, but "need not necessarily provide 'extraordinary' facts to justify any statutorily permissible sentencing variance, even one as large as the 100% [downward] variance in Gall." United States v. Smart, 518 F.3d 800, 807 (10th Cir. 2008). Mr. Jenkins criticizes the court for not discussing factors other than his...