NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-1681

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UNITED STATES OF AMERICA

v.

JERRY JAY JONES,

Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. No. 09-cr-00003-001)

District Judge: Hon. Kim R. Gibson

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Submitted Under Third Circuit LAR 34.1(a)

January 13, 2012

Before: McKEE, Chief Judge, FUENTES, and JORDAN, Circuit Judges.

(Filed: January 17, 2012)

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OPINION OF THE COURT

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JORDAN, Circuit Judge.

Jerry Jay Jones appeals the judgment of the United States District Court for the 

Western District of Pennsylvania sentencing him to 72 months’ imprisonment for 

distributing less than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841, and 

possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 

924(a)(2). For the following reasons, we will affirm.

I. Background

A. Factual History

On February 7, 2008, two confidential informants disclosed to the Cambria 

County Drug Task Force that they could purchase marijuana from Jones. Thereafter, an 

undercover officer drove the two informants to Jones’s apartment in Johnstown, 

Pennsylvania, where they paid him $500 for 109 grams of marijuana. Jones told the 

informants that he could provide them with more marijuana as needed. 

The following day, Jones was arrested with $2,000 in cash, $490 of which was 

identified as the money used by the confidential informants to purchase the marijuana. A 

search warrant was obtained for Jones’s apartment, where officers found a scale and sixto-seven ounces of marijuana inside his bedroom. The marijuana was split into smaller 

bags and stored in a plastic container and a shoe box inside his closet. The officers also

found a fully-loaded Regent .32 caliber revolver with an obliterated serial number and a 

box of .32 caliber ammunition on the nightstand, situated approximately nine feet from 

the drugs. 
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A grand jury later returned a two-count indictment against Jones, charging him 

with distributing less than 50 kilograms of marijuana, in violation of 21 U.S.C. 

§§ 841(a)(1) and 841(b)(1)(D), and possessing a firearm as a convicted felon,

1

in 

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). 

B. Procedural History

Jones pleaded guilty to both counts of the indictment, and, on November 16, 2010, 

the United States Probation Office filed a Presentence Investigation Report (“PSR”) 

assigning Jones a base offense level of 20, pursuant to U.S.S.G. § 2K2.1(a)(4)(A). That

offense level was increased by four levels because Jones possessed a firearm in 

connection with another felony offense, U.S.S.G. § 2K2.1(b)(6), and it was raised four 

more because the firearm had an obliterated serial number, U.S.S.G. § 2K2.1(b)(4). 

Finally, there was a three-level reduction because Jones had apparently accepted 

responsibility for his crimes, U.S.S.G. §§ 3E1.1(a) and 3E1.1(b). The PSR thus assigned 

Jones a total offense level of 25. 

Based on Jones’s prior convictions, the PSR listed a total of ten criminal history 

points, placing him in criminal history category V. That calculation included three 

criminal history points because Jones was incarcerated for a September 21, 1991 

conviction for simple assault and witness intimidation within fifteen years of the 

commission of the instant offense and because the maximum sentence for that 1991 

conviction exceeded one year and one month. See U.S.S.G. § 4A1.1(a) (calling for the 

addition of three criminal history points for a conviction resulting in a sentence of 

 

1

Jones had a prior felony conviction for aggravated assault. 
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imprisonment exceeding one year and one month); U.S.S.G. § 4A1.2(e)(1) (applying that

enhancement where the prior sentence resulted in the defendant being incarcerated within 

fifteen years of the commission of the pending offenses). Jones’s criminal history and 

total offense level resulted in a guideline range of 100 to 120 months’ imprisonment. 

Jones objected to the PSR on several grounds, two of which are the subject of this 

appeal. First, he challenged the four-level enhancement for possession of a firearm in 

connection with another felony. Second, he challenged the three-point addition to his 

criminal history computation. 

With respect to Jones’s challenge to the offense level, the District Court found that

the evidence and testimony “establishe[d] that the defendant possessed the firearm in 

connection with another felony offense” because “the weapon was in close proximity to 

the drugs and [had] the potential to facilitate another felony offense.” (App. at 107.) 

With respect to the criminal history challenge, the District Court found that, “based upon 

the documents provided[,] the defendant was incarcerated for the subject offense within 

the 15-year time period.” (Id.)

After rejecting Jones’s other challenges to the PSR, the District Court sentenced

him to 36 months’ imprisonment for Count One and 72 months’ imprisonment for Count 

Two, to be served concurrently, followed by concurrent three-year terms of supervised 

release. 
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II. Discussion2

Jones argues that the District Court erred in applying a four-level enhancement to 

his sentence for possessing a firearm in connection with a drug trafficking offense. He

also argues that the District Court erred in concluding that his prior conviction for 

simple assault and witnesses intimidation fell within the applicable fifteen-year time 

period for purposes of adding three points to his criminal history computation. We 

“review factual findings relevant to the Guidelines for clear error and ... exercise 

plenary review over a district court’s interpretation of the Guidelines.” United States v. 

Grier, 475 F.3d 556, 570 (3d Cir. 2007) (en banc). 

A. Four-Level Enhancement Pursuant To § 2K2.1(b)(6)

Jones argues that the gun-related enhancement to his offense level was improper 

because the government did not prove that he possessed a gun on the day he sold 

marijuana to the confidential informants. “Proper application of the four-level 

enhancement under § 2K2.1(b)(6) requires finding, by a preponderance of the evidence, 

that the defendant used or possessed a firearm; that the defendant committed another 

felony offense, regardless of whether a criminal charge was brought or a conviction 

obtained; and that the firearm facilitated, or had the potential of facilitating, the felony 

offense.” United States v. West, 643 F.3d 102, 110 (3d Cir. 2011). 

According to Jones, because the firearm first came to light on February 8, 2008

when the police executed a search warrant of his home, the enhancement for possessing it

 

2

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have 

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
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in connection with another felony was improper. He claims that even if the firearm had 

been in his apartment during the February 7 drug transaction, it was in a different, closed 

room of the apartment, and neither the confidential informants, nor the police, knew of its 

existence. Thus, he argues, the firearm did not facilitate, and could not have facilitated,

his drug offense. Finally, he argues that he possessed the firearm to protect himself, not 

to facilitate his drug trafficking.

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Jones’s arguments are unpersuasive. It is undisputed that the firearm was found in 

the same one-bedroom apartment where he sold marijuana only the day before. Given

the physical proximity between the weapon and the drugs discovered during the February 

8 search, as well as the temporal proximity of the discovery of the gun to the February 7 

marijuana sales, the District Court did not commit clear error in concluding that the 

weapon facilitated or had the potential of facilitating Jones’s drug offense. Jones’s

arguments that the gun was not actually used in connection with the charged offense are 

unavailing, as the weapon need only have the potential to be used in connection with a

felony offense.4See West, 643 F.3d at 110 (noting that application of § 2K2.1 only 

 

3

Specifically, Jones’s counsel argues that because his mother was slain when he 

was nine years old, Jones had the “misguided belief that he had to have a gun to protect 

himself.” (Appellant’s Opening Br. at 19 (internal quotation marks omitted).)

4

 While the record is unclear as to whether the District Court applied the fourlevel enhancement to Jones’s criminal offense computation in connection with the 

charged offense of distribution or the uncharged offense of possession with intent to 

distribute (stemming from the discovery, during the February 8 search, of marijuana 

packaged for sale), the enhancement can be justified on either or both grounds. See

Fairview Twp., York Cnty., Com. of Pa. v. U.S. E.P.A., 773 F.2d 517, 525 n.15 (3d Cir. 

1985).
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requires that “the firearm facilitated, or had the potential of facilitating, the felony 

offense” (emphasis added)).

B. Three-Point Enhancement Pursuant To § 4A1.1(a)

Jones also argues that the District Court erred in assigning him three criminal 

history points after accepting the PSR’s conclusion that he was incarcerated in connection 

with another offense during the relevant fifteen-year time period. The Sentencing 

Guidelines provide for an enhancement of three points for a prior sentence of 

imprisonment exceeding one year and one month, U.S.S.G. § 4A1.1(a), that resulted in 

the defendant being incarcerated within fifteen years of the commission of the instant

offenses, U.S.S.G. § 4A1.2(e)(1). When parole is revoked, the original term of 

imprisonment is added to any term imposed upon revocation in calculating the duration 

of the sentence. U.S.S.G § 4A1.2(k)(1). Jones claims that the records relied upon in the 

PSR do not show the date of his release from incarceration or if he served his sentence in 

an alternative housing program.

Because the offense for which Jones is now being sentenced occurred at the latest 

on February 8, 2008,5in order to apply a three-point enhancement pursuant to 

§ 4A1.1(a), the District Court was required to find that Jones was incarcerated after 

February 8, 1993 for a prior offense bearing a sufficient maximum term of 

 

5 While the offense charged in Count One, distribution of marijuana, occurred on 

February 7, 2008, the offense charged in Count Two, unlawful possession of a firearm by 

a convicted felon, occurred on February 8, 2008. 
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imprisonment.

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The basis for such a finding exists in the prior sentence Jones received 

for crimes committed in 1991 that resulted in Jones’s guilty plea to a four-count 

indictment charging him with simple assault and witness intimidation. In connection 

with those offenses, the Pennsylvania Court of Common Pleas sentenced Jones to a term 

of imprisonment of not less than four months and not more than twelve months. Jones’s

sentence also included four years of probation. On February 8, 1993, Jones’s probation 

for his 1991 offenses was revoked because he was charged with aggravated assault and 

carrying a firearm without a license. His probation was converted to a term of 

imprisonment of not less than six months and not more than twelve months, with a 

recommendation for alternative housing in a local drug treatment facility. Adding the 

original maximum sentence to the maximum sentence imposed upon revocation, a

sentence of imprisonment exceeding one year and one month was imposed. The threepoint enhancement under § 4A1.1(a) was thus proper as long as Jones was incarcerated 

for the prior crime within fifteen years of committing the now-pending offenses.

Jones argues that the records relied upon by the District Court do not show the 

date of his last release from incarceration in connection with the 1991 offenses, nor do 

these records show whether he served his sentence in alternative housing, in which case 

(he asserts) he would not have served time in prison for purposes of assessing the 

applicability of § 4A1.1(a). Those arguments are unavailing. 

 

6

The duration of the prior sentence is calculated on the basis of the maximum 

sentence imposed. U.S.S.G. § 4A1.2(b)(1).
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The District Court concluded that because Jones’s probation for his 1991 offenses

was revoked on February 8, 1993, he was in jail within the fifteen-year time period of 

Jones’s commission of the instant offense. Jones acknowledges that he was in prison on 

that date, but claims that he was serving a sentence for a different offense and argues that 

the government has not proven that he did not serve his sentence for the 1991 offenses at

an alternative housing facility. There is, however, ample evidence in the record to have 

allowed the District Court to conclude that Jones was imprisoned within the revenant 

fifteen-year period for the 1991 offenses. It was not the government’s burden to negate 

every conceivable scenario Jones could advance for why he might have been in prison for 

something other than those crimes. The District Court therefore did not commit clear 

error in applying a three-point addition to his criminal history score. 

III. Conclusion

For the forgoing reasons, we will affirm the judgment of the District Court.