RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0209p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLIMMIE JONES, JR.,

Defendant-Appellant.

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No. 06-5551

Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 96-00017—Todd J. Campbell, Chief District Judge.

Argued: April 26, 2007

Decided and Filed: June 5, 2007 

Before: MOORE, COLE, and ROGERS, Circuit Judges.

_________________

COUNSEL

ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, Nashville, Tennessee,

for Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES ATTORNEY, Nashville,

Tennessee, for Appellee. ON BRIEF: David L. Cooper, THE LAW OFFICE OF DAVID L.

COOPER, Nashville, Tennessee, for Appellant. Paul M. O’Brien, ASSISTANT UNITED STATES

ATTORNEY, Nashville, Tennessee, for Appellee.

_________________

OPINION _________________

KAREN NELSON MOORE, Circuit Judge. Appellant-Defendant Climmie Jones, Jr.

(“Jones”), was convicted by a jury of twenty-one drug and firearms charges. After two prior appeals

and remands for resentencing and other proceedings, Jones now appeals his latest sentence of 168

months in prison, six years of supervised release, and a $1,050 special assessment. Jones argues

through counsel that the district court erred by applying the preponderance-of-the-evidence standard

for judicial fact-finding during sentencing and that his sentence was procedurally and substantively

unreasonable. Jones also argues pro se that he was denied the right to represent himself, that the

district court erred in calculating the length of two of his twenty-one concurrent six-year terms of

supervised release, that his sentence violated the Double Jeopardy Clause, that he was denied access

1
No. 06-5551 United States v. Jones Page 2

1

Jones also filed a timely notice of appeal pro se, which resulted in Sixth Circuit Case No. 06-5549. The appeal

in Case No. 06-5549 was dismissed as duplicative.

to certain documents, and that he received ineffective assistance of counsel. Because the length of

Jones’s two terms of supervised release for his two firearms convictions exceeds the statutory

maximum, and because eight of Jones’s convictions subjected him to multiple punishments in

violation of the Double Jeopardy Clause, we VACATE the judgment of the district court and

REMAND for the limited purpose of entering an amended judgment that remedies these two errors.

I. BACKGROUND

In 1996, a federal jury convicted Jones of one count of conspiracy to distribute cocaine and

cocaine base, in violation of 21 U.S.C. § 846; nine counts of possession with intent to distribute

cocaine base, in violation of 21 U.S.C. § 841(a)(1); seven counts of distribution of cocaine base

within 1000 feet of a school, in violation of 21 U.S.C. § 860; one count of aiding and abetting

distribution of cocaine base, in violation of 18 U.S.C. § 2; one count of aiding and abetting

distribution of cocaine base within 1000 feet of a school, in violation of 18 U.S.C. § 2; one count

of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); and one count of being

a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Jones was sentenced to 262

months in prison, ten years of supervised release, and a $1,050 special assessment, and he appealed

on numerous grounds. On November 6, 1998, we affirmed the judgment of the district court in part,

reversed in part, and remanded the case to the district court for resentencing and in order to allow

Jones to pursue a claim of selective prosecution. United States v. Jones (Jones I), 159 F.3d 969 (6th

Cir. 1998).

After discovery on remand, Jones moved to dismiss the indictment for selective prosecution

and moved for a new trial. On July 13, 2000, before the district court ruled on Jones’s motions,

Jones was declared incompetent to proceed. On January 4, 2002, Jones was declared competent,

and, on August 27, 2002, the district court denied his motion to dismiss the indictment and his

motion for a new trial. Jones was resentenced, this time to 210 months in prison, six years of

supervised release, and a $1,050 special assessment, and he again appealed on numerous grounds.

On March 3, 2005, we affirmed the judgment of the district court in most respects, but vacated

Jones’s sentence and remanded for resentencing in light of United States v. Booker, 543 U.S. 220

(2005). United States v. Jones (Jones II), 399 F.3d 640 (6th Cir. 2005). On October 3, 2005, the

United States Supreme Court denied Jones’s petition for certiorari. Jones v. United States, --- U.S.

---, 126 S. Ct. 148 (2005).

Jones made a number of motions in the district court on the second remand, both through

counsel and pro se, the relevant details of which we discuss in greater detail below. On April 10,

2006, the district court held a third sentencing hearing, at which Jones was sentenced to 168 months

in prison, six years of supervised release, and a $1,050 special assessment. The district court also

issued an order entitled “Rule 32(c)(1) Findings and Determinations Regarding Objections to

Presentence Investigation Report,” in which the district court addressed in greater detail a number

of sentencing issues raised by Jones and the government. Jones timely appealed through counsel.1

II. ANALYSIS

A. Right to Self-Representation at Sentencing

Although the main focus of Jones’s current appeal is on challenges to the district court’s

sentencing determination, we must first address two preliminary matters. Acting pro se, Jones first

argues that he was denied his constitutional and statutory right to self-representation during presentencing proceedings and at sentencing on the second remand. This court reviews de novo the
No. 06-5551 United States v. Jones Page 3

legal question of the scope of the right to self-representation. United States v. Cromer, 389 F.3d

662, 679 (6th Cir. 2004).

Jones asserts that during a status conference on November 9, 2005, he informed the district

court that he wished to represent himself. The district court informed Jones that he could submit

motions on his own behalf, but that counsel would be appointed for him and that he could resubmit

his request to the district court if he later did not wish to be represented by counsel. On January 7,

2006, Jones sent to the district court a letter along with a number of motions making clear that he

wished to represent himself. Thereafter, Jones filed numerous motions in the district court,

introduced evidence during the sentencing hearing, and made arguments on his own behalf during

the sentencing hearing, but continued to be represented by counsel as well. The district court never

ruled on Jones’s request to represent himself.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme Court held that the Sixth

Amendment guaranteed a criminal defendant the right to represent himself or herself at trial. Id. at

832. Criminal defendants in federal courts also have a statutory right to “plead and conduct their

own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to

manage and conduct causes therein.” 28 U.S.C. § 1654. Thus, we may safely say that a criminal

defendant in federal court has a right to represent himself or herself at sentencing. See United States

v. Shanklin, 193 F. App’x 384, 387-88 (5th Cir. 2006) (unpublished opinion), cert. denied, --- U.S.

---, 127 S. Ct. 1009 (2007); United States v. Estrada, 25 F. App’x 814, 819 (10th Cir.) (unpublished

order), cert. denied, 535 U.S. 1010 (2002). But cf. United States v. Hyman, No. 96-4855, 1998 WL

200320, at *3 (4th Cir. Apr. 27, 1998) (unpublished opinion) (concluding that once a defendant has

proceeded to trial with counsel, the decision whether to grant the defendant’s request to proceed pro

se at sentencing lies within the discretion of the district court).

The exact contours of the right to self-representation, however, depend on the nature of the

proceeding. In Faretta, the Supreme Court noted that a trial court “may—even over objection by

the accused—appoint a ‘standby counsel.’” Faretta, 422 U.S. at 834 n.46; see also United States

v. Walsh, 742 F.2d 1006, 1006-07 (6th Cir. 1984). In McKaskle v. Wiggins, 465 U.S. 168 (1984),

the Court further defined the permissible role of standby counsel:

First, the pro se defendant is entitled to preserve actual control over the case

he chooses to present to the jury. This is the core of the Faretta right. If standby

counsel's participation over the defendant's objection effectively allows counsel to

make or substantially interfere with any significant tactical decisions, or to control

the questioning of witnesses, or to speak instead of the defendant on any matter of

importance, the Faretta right is eroded.

Second, participation by standby counsel without the defendant's consent

should not be allowed to destroy the jury's perception that the defendant is

representing himself. The defendant's appearance in the status of one conducting his

own defense is important in a criminal trial, since the right to appear pro se exists to

affirm the accused's individual dignity and autonomy.

Id. at 178. In proceedings outside the presence of a jury, the Court reasoned, only the first of these

concerns is applicable. Id. at 179. In such proceedings, therefore, the defendant’s right to selfrepresentation is satisfied “if the pro se defendant is allowed to address the court freely on his own

behalf and if disagreements between counsel and the pro se defendant are resolved in the

defendant’s favor whenever the matter is one that would normally be left to the discretion of

counsel.” Id. (footnote omitted). Because Jones’s sentencing and all relevant pre-sentencing

proceedings took place outside the presence of a jury, Jones’s right to self-representation is limited

accordingly.
No. 06-5551 United States v. Jones Page 4

In the proceedings below, Jones was allowed to submit multiple motions to the district court,

introduce evidence and make arguments at the sentencing hearing, and address the court on his own

behalf. Jones’s appointed counsel made other motions on Jones’s behalf, but the record does not

reveal any instances in which Jones and his counsel disagreed on strategy or Jones’s counsel

undermined Jones’s arguments. Cf. id. at 180-81 (concluding that a defendant was not denied his

right to self-representation even though counsel, outside the jury’s presence, “made motions,

dictated proposed strategies into the record, registered objections to the prosecution’s testimony,

urged the summoning of additional witnesses, and suggested questions that the defendant should

have asked of witnesses”); Walsh, 742 F.2d at 1007 (concluding that a defendant was not denied his

right to self-representation by the appointment of advisory counsel because “there seems to be no

sign of conflict between counsel and defendant, and . . . the defendant does not argue that he was

prevented from executing any strategy he chose”). Moreover, Jones did not object to any of the

motions or arguments made by his counsel. See Wiggins, 465 U.S. at 182 (“Even when he insists

that he is not waiving his Faretta rights, a pro se defendant’s solicitation of or acquiescence in

certain types of participation by counsel substantially undermines later protestations that counsel

interfered unacceptably.”). In sum, we conclude that the record does not reveal any instances in

which Jones was denied his right to self-representation at sentencing, despite the presence of

counsel.

We observe, however, that the district court may have erred in this case by not ruling on

Jones’s request to represent himself. We have held that once a defendant has “clearly and

unequivocally asserted his right to proceed pro se,” as Jones did, the district court must give the

defendant particular warnings designed to ensure that the defendant’s waiver of counsel is knowing

and voluntary. Cromer, 389 F.3d at 679-80, 682. Thus, had Jones and his counsel conflicted on

questions of strategy, for example, reversal may have been warranted: if the district court resolved

the conflict in favor of counsel, Jones’s right to self-representation would have been violated; and

if the district court resolved the conflict in favor of Jones, we would likely conclude that he had

represented himself without knowingly and voluntarily waiving the right to counsel. The

circumstances of this case demonstrate that Jones was not denied his right to self-representation, but

we note that similar errors by a district court may very well require reversal in different

circumstances.

B. Request for Copies of Documents

Jones also argues pro se that the district court erred by refusing to allow him to copy certain

documents from the record in order to help him prepare his sentencing arguments. It is difficult to

determine the legal basis for Jones’s argument and the appropriate standard of review, but Jones’s

claim fails even under de novo review. On July 11, 2005, Jones, acting pro se, filed a request for

certain legal documents. On July 12, the district court denied the request “without prejudice to

Defendant refiling the requests through his court-appointed counsel.” District Court Record Entry

605 (“R. 605”). On November 9, 2005, Jones, again acting pro se, renewed his previous request.

On December 14, the district court granted Jones’s request in part and denied it in part. The district

court reasoned that “[b]ecause the requested documents are voluminous, many of which are also

under seal, the documents cannot be mailed to Defendant Jones at this time.” R. 620. However, the

district court ordered that Jones be transported to the courthouse to review and inspect the requested

documents and noted that Jones could ask for selected copies at that time. On January 20, 2006,

Jones, through counsel, made a motion to continue the sentencing hearing set for February 3, 2006,

because Jones had not yet been given the opportunity to review and inspect the requested

documents. That same day, the district court granted the motion and rescheduled the sentencing

hearing for April 10, 2006. Thus, Jones was given the opportunity to review and inspect the

requested documents. Jones has not argued that he was given insufficient time to review the

documents and has not pointed to any documents that he was not allowed to review. It appears that
No. 06-5551 United States v. Jones Page 5

2

The district court detailed Jones’s history of violence:

The Court is mindful of the danger that Mr. Jones has presented to the community of Rutherford

County, Murfreesboro, Tennessee and that is set forth in paragraphs 11, 16, 17, 51 and 87 of the

Jones received all the relief that he requested and, accordingly, we conclude that the district court

did not err.

C. Standard for Judicial Fact-Finding in Sentencing

We next turn to Jones’s challenges to the district court’s sentencing determination. Jones

argues through counsel that the district court violated his due process rights by using a

preponderance-of-the-evidence standard to determine that the quantity of cocaine base that he

possessed and distributed was 18.3 grams. We have previously determined that “judicial factfinding in sentencing proceedings using a preponderance of the evidence standard post-Booker does

not violate either Fifth Amendment due process rights, or the Sixth Amendment right to trial by

jury.” United States v. Gates, 461 F.3d 703, 708 (6th Cir.), cert. denied, --- U.S. ---, 127 S. Ct. 602

(2006); see also United States v. Barton, 455 F.3d 649, 657-58 (6th Cir.), cert. denied, --- U.S. ---,

127 S. Ct. 748 (2006); United States v. Green, 181 F. App’x 506, 507-09 (6th Cir. 2006) (concluding

that the district court did not violate the Due Process Clause by using a preponderance-of-theevidence standard to determine the quantity of drugs for which a defendant was responsible).

Accordingly, we conclude that the district court did not err by using a preponderance-of-theevidence standard.

D. Reasonableness of Jones’s Sentence

Jones also argues through counsel that his sentence was procedurally and substantively

unreasonable. On appeal, we must determine whether a district court’s sentencing determination

was reasonable. United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005), cert. denied, --- U.S. ---,

126 S. Ct. 1110 (2006). Reasonableness has both substantive and procedural components, and

accordingly, we consider “not only the length of the sentence but also the factors evaluated and the

procedures employed by the district court in reaching its sentencing determination.” Id.; accord

United States v. Davis, 458 F.3d 505, 510 (6th Cir. 2006); United States v. Richardson, 437 F.3d

550, 553-54 (6th Cir. 2006).

1. Procedural Reasonableness

“A sentence may be procedurally unreasonable if ‘the district judge fails to “consider” the

applicable Guidelines range or neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a),

and instead simply selects what the judge deems an appropriate sentence without such required

consideration.” United States v. Ferguson, 456 F.3d 660, 664 (6th Cir. 2006) (quoting Webb, 403

F.3d at 383). Furthermore, when “a defendant raises a particular argument in seeking a lower

sentence, the record must reflect both that the district judge considered the defendant’s argument

and that the judge explained the basis for rejecting it.” Richardson, 437 F.3d at 554.

Jones asserts through counsel that “the district court erred when it failed to consider certain

mitigating factors for purposes of sentencing under 18 U.S.C. § 3553(a).” Appellant’s Br. at 22.

However, Jones does not actually identify any factors that the district court did not consider. Both

the transcript of the sentencing hearing and the Rule 32(c)(1) Order reflect that the district court

noted every one of the approximately twenty arguments that Jones made, either through counsel or

pro se, in support of a sentence below the Guidelines range. The district court did not make specific

determinations as to why each of the twenty arguments did not warrant a sentence below the

Guidelines range, but generally relied on Jones’s “history of violence and threats of violence.”2
No. 06-5551 United States v. Jones Page 6

presentence report.

Mr. Jones was arrested at a shopping mall with two fully loaded handguns and wearing a bulletproof

vest. That is paragraph 11.

Paragraph 16, he instructed a confidential informant to deliver a message to a law enforcement officer,

Lieutenant McCullough. The message was, tell Mickey I have two more guns and another bulletproof

vest.

Such a threat to law enforcement is a very serious matter. And the Court has already gone on record

of the opinion that the threat was a motivating factor, in part, for any selection of Mr. Jones for

prosecution.

Paragraph 17, Mr. Jones is threatening to kill a confidential informant.

Paragraph 51 recounts about loaded weapons in the possession of Mr. Jones at the time of his arrest.

Paragraph 87 recounts the incident of Mr. Collier, Mr. Jones’ loaded shotgun in the presence of Mr.

Collier and showed him knives and told him his family would be killed if certain actions weren’t

taken.

Joint Appendix (“J.A.”) at 293-94 (Dist. Ct. Rule 32(c)(1) Order at 4-5) (quoting 7/28/03 Resentencing Hr’g at 142-43).

Joint Appendix (“J.A.”) at 192 (4/10/06 Sentencing Hr’g at 101); J.A. at 293-94 (Dist. Ct. Rule

32(c)(1) Order at 4-5). In its Rule 32(c)(1) Order, the district court explicitly linked this

determination to a number of relevant § 3553(a) factors, noting that a sentence below the Guidelines

range “would not reflect the ‘history and characteristics’ of the Defendant or ‘the seriousness of the

offense’; provide ‘just punishment’; ‘afford adequate deterrence to criminal conduct’; or ‘protect

the public from further crimes of the Defendant.’” J.A. at 294 (Dist. Ct. Rule 32(c)(1) Order at 5);

see also 18 U.S.C. § 3553(a). Moreover, the record reflects that the district court did take many of

Jones’s arguments into account in deciding to sentence him to a sentence at the bottom of the

Guidelines range:

[I]n the opinion of the Court, I think Mr. Jones is a different man today than he was

in 1995. I think he has undergone efforts towards rehabilitation. Seems to be turning

his life around, and I am going to sentence Mr. Jones in the guideline range, but in

the opinion of the Court, he should not be sentenced at the top of the range in that he

is a different man than he was when he has been here twice before, and I am going

to sentence him at the low end of the guideline range that I have determined that’s

applicable.

J.A. at 192-93 (4/10/06 Sentencing Hr’g at 101-02). The record reflects that the district court

considered all of Jones’s arguments, the applicable Guidelines range, and the relevant § 3553(a)

factors, and we therefore conclude that Jones’s sentence was procedurally reasonable.

2. Substantive Reasonableness

The thrust of Jones’s reasonableness argument appears to be that, although the district court

considered the appropriate factors, the district court gave too little weight to certain mitigating

factors and thus sentenced Jones to more time in prison than was warranted—that is, that the

sentence is substantively unreasonable. “[A] sentence may [be] substantively unreasonable where

the district court ‘select[s] the sentence arbitrarily, bas[es] the sentence on impermissible factors,

fail[s] to consider pertinent § 3553(a) factors or giv[es] an unreasonable amount of weight to any
No. 06-5551 United States v. Jones Page 7

3

In Webb, the case in which we first set forth the proper scope of reasonableness review post-Booker, we did

not use the term “substantive.” In United States v. McBride, 434 F.3d 470 (6th Cir. 2006), we first described our holding

in Webb as setting forth “both substantive and procedural components to our reasonableness review,” id. at 475 n.3, but

we did not set forth what each component entailed. In Ferguson, we first delineated which aspects of our reasonableness

review, as set forth in Webb, are part of the procedural component and which aspects are part of the substantive

component. Ferguson, 456 F.3d at 664. In many ways, the procedural and substantive components, as delineated by

Ferguson and subsequent cases, appear to overlap. Compare e.g., id. (“A sentence may be procedurally unreasonable

if ‘the district judge . . . neglects to “consider” the other factors listed in 18 U.S.C. § 3553(a) . . . .’” (quoting Webb, 403

F.3d at 383)), with id. (“[A] sentence may [be] substantively unreasonable where the district court ‘. . . fail[s] to consider

pertinent § 3553(a) factors . . . .’” (quoting Webb, 403 F.3d at 385) (third alteration in original)). We are, of course,

currently bound by the delineation set forth in Ferguson and subsequent cases, see Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985); 6th Cir. R. 206(c) (“Reported panel opinions are binding on subsequent

panels.”), but regardless of how the components are delineated, we are primarily bound by the requirement set forth in

Webb, the earliest of these cases, that we consider both “the length of the sentence” and “the factors evaluated and the

procedures employed by the district court in reaching its sentencing determination,” Webb, 403 F.3d at 383.

pertinent factor.’”3 Ferguson, 456 F.3d at 664 (quoting Webb, 403 F.3d at 385) (third through sixth

alterations in original). Because Jones was sentenced within the applicable Guidelines range, his

sentence is credited with a “rebuttable presumption of reasonableness.” United States v. Williams, 436 F.3d 706, 708 (6th Cir.), petition for cert. filed, No. 06-5275 (July 11, 2006).

Jones argues that the district court erred by not giving sufficient weight to six mitigating

factors: 1) that Jones was subjected to racially discriminatory conduct by the police, see Jones I, 159 F.3d at 975-76 (describing in detail the “undeniably shameful” conduct of the police); 2) that

distribution or possession of a particular amount of cocaine base carries the same Guidelines range

as distribution or possession of one hundred times that amount of powder cocaine (often referred to

as the 100:1 crack to cocaine ratio); 3) that Jones had been incarcerated in local jails for much of his

prison term; 4) that Jones had demonstrated significant post-sentencing rehabilitation; 5) that Jones

had a mental condition that required treatment; and 6) that similarly situated defendants had received

lesser sentences. At least two of these factors do not lend significant support for a reduced sentence.

First, it is difficult to see how the conduct of the police, however unprofessional it was, justifies a

reduced sentence under the § 3553(a) factors. Second, we have previously determined that

“applying the [100:1 crack to cocaine] ratio does not, ipso facto, make a sentence unreasonable

under existing case law,” United States v. Caver, 470 F.3d 220, 249 (6th Cir. 2006), and, like the

defendant in Caver, Jones “has not demonstrated that the 100:1 ratio was unreasonable in his case,”

id.

The remaining factors do lend some support for a reduced sentence. Jones testified that his

incarceration in local jails for much of his imprisonment thus far offered fewer services and was

“extremely more harsh” than it would have been in federal prison, J.A. at 178-80 (4/10/06

Sentencing Hr’g at 46-48), indicating that a reduced sentence may “provide just punishment,” 18

U.S.C. § 3553(a)(2)(A). Jones detailed his efforts at rehabilitation, indicating that a reduced

sentence may be adequate “to protect the public from further crimes of the defendant,” 18 U.S.C.

§ 3553(a)(2)(C), and “to provide the defendant with . . . other correctional treatment in the most

effective manner,” 18 U.S.C. § 3553(a)(2)(D). Jones described his mental condition and treatment,

providing further support that a reduced sentence may provide him with the most appropriate

correctional treatment. 18 U.S.C. § 3553(a)(2)(D). Finally, Jones presented the profiles of five

defendants who pleaded guilty to similar charges and received sentences of less prison time, which

may provide some support for the argument that a reduced sentenced may be appropriate “to avoid

unwarranted sentence disparities.” 18 U.S.C. § 3553(a)(6).
No. 06-5551 United States v. Jones Page 8

4

We note that it appears that the district court’s conclusion on this point was simply oversight. In both of the

previous sentencing decisions in this case, the district court sentenced Jones to two three-year terms of supervised release

for his two firearms convictions, the maximum authorized by statute.

The district court determined that Jones’s history of violence and threats of violence

counterbalanced Jones’s mitigating evidence and militated in favor of a within-Guidelines sentence

and that Jones’s mitigating evidence justified a sentence at the bottom of the applicable Guideline

range, but no lower. Although Jones’s mitigating evidence might warrant a below-Guidelines

sentence in some circumstances, we cannot say that the district court gave an unreasonably large

amount of weight to Jones’s significant history of violence or an unreasonably small amount of

weight to Jones’s mitigating arguments. Accordingly, we conclude that his sentence was

substantively reasonable.

E. Length of Two Terms of Supervised Release

Acting pro se, Jones argues that the district court erred by sentencing him to two six-year

terms of supervised release for his two firearms convictions, counts twenty and twenty-one of the

superseding indictment. We review de novo the district court’s interpretation of a federal statute and

the Sentencing Guidelines. United States v. Palacios-Suarez, 418 F.3d 692, 694 (6th Cir. 2005).

The district court sentenced Jones to twenty-one separate six-year terms of supervised

release, to run concurrently. Jones does not challenge nineteen of those terms, but argues that the

maximum term of supervised release that he could receive for each of his two firearms convictions

is three years. Jones was convicted of one count of possession of an unregistered firearm, in

violation of 26 U.S.C. § 5861(d), and one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Because each of these charges carries a maximum penalty of ten

years in prison, 26 U.S.C. § 5871; 18 U.S.C. § 924(a)(2), these two convictions are classified as

Class C felonies, 18 U.S.C. § 3559(a)(3). By statute, the maximum term of supervised release for

a Class C felony is three years. 18 U.S.C. § 3583(b)(2); see also U.S.S.G. § 5D1.2(a)(2). Thus, we

conclude that the district court erred by sentencing Jones to two six-year terms of supervised release

for his two firearms convictions.4

F. Double Jeopardy

Acting pro se, Jones also argues that his sentence violated the Double Jeopardy Clause of

the Fifth Amendment because eight of his convictions for violating 21 U.S.C. § 841(a)(1) were

lesser-included offenses of his eight convictions for violating 21 U.S.C. § 860. We review questions

of double jeopardy de novo. United States v. DeCarlo, 434 F.3d 447, 452 (6th Cir. 2006).

Under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932), if the same act

constitutes a violation of two statutory provisions, the Double Jeopardy Clause prohibits punishing

a defendant for both violations unless “each provision requires proof of an additional fact which the

other does not.” Id. at 304. Title 21 U.S.C. § 860 calls for increased penalties for “[a]ny person who

violates section 841(a)(1) of this title . . . by distributing, possessing with intent to distribute, or

manufacturing a controlled substance in or on, or within one thousand feet of” a school. 21 U.S.C.

§ 860(a). By the explicit terms of § 860, then, § 841(a)(1) is a lesser-included offense. Section

841(a)(1) does not require proof of any additional facts beyond what § 860 requires, and, therefore,

the Double Jeopardy Clause prohibits punishing a defendant for violating both § 841(a)(1) and

§ 860. See United States v. Jackson, 443 F.3d 293, 300-02 (3d Cir. 2006); United States v.

Carpenter, 422 F.3d 738, 747 (8th Cir. 2005), cert. denied, --- U.S. ---, 126 S. Ct. 1115 (2006);

United States v. White, 240 F.3d 127, 132-33 (2d Cir. 2001); United States v. Kakatin, 214 F.3d

1049, 1051 (9th Cir.), cert. denied, 531 U.S. 911 (2000); United States v. Freyre-Lazaro, 3 F.3d
No. 06-5551 United States v. Jones Page 9

5

The special assessment was increased to $100 per felony in 1996. See 18 U.S.C. § 3013. However, Jones is

entitled to the benefit of the previous assessment of $50 per felony because he committed his crimes before the increase

and applying the $100 assessment would therefore violate the Ex Post Facto Clause. United States v. Prather, 205 F.3d

1265, 1272 (11th Cir.), cert. denied, 531 U.S. 879 (2000); United States v. Labeille-Soto, 163 F.3d 93, 101-02 (2d Cir.

1998).

1496, 1507 (11th Cir. 1993), cert. denied, 511 U.S. 1011 (1994); United States v. Scott, 987 F.2d

261, 266-67 (5th Cir. 1993).

The superseding indictment makes clear that eight of Jones’s convictions for violating

§ 841(a)(1) were for the same acts as his eight convictions for violating § 860. In counts two, four,

seven, nine, eleven, thirteen, fifteen, and eighteen, Jones was charged with possessing and

distributing a particular quantity of drugs on a particular day, in violation of § 841(a)(1), and in

counts three, five, eight, ten, twelve, fourteen, sixteen, and nineteen, Jones was charged with

possessing and distributing the same quantity of drugs on the same day within 1000 feet of a school,

in violation of § 860. The government is permitted to charge lesser-included offenses, but Jones

could not constitutionally be convicted and sentenced under both § 841(a)(1) and § 860 for the same

acts. See DeCarlo, 434 F.3d at 456. Even though Jones received concurrent sentences under

§ 841(a)(1) and § 860 for these charges, his convictions on counts two, four, seven, nine, eleven,

thirteen, fifteen, and eighteen must be vacated because, as the Supreme Court has noted, the $50

special assessment5 on each conviction amounts to unconstitutional multiple punishments, and the

extra convictions hold the potential for adverse collateral consequences. Id. at 457 (citing Rutledge

v. United States, 517 U.S. 292, 302 (1996)).

G. Ineffective Assistance of Counsel

Finally, Jones argues pro se that he received ineffective assistance of trial counsel. In order

to succeed on these claims, Jones must show that his counsel was deficient and that the deficiency

prejudiced him. Strickland v. Washington, 466 U.S. 668, 687 (1984). We ordinarily will not rule

on ineffective assistance of counsel claims raised on direct appeal because the record has not been

sufficiently developed to review such claims, see United States v. Wagner, 382 F.3d 598, 615 (6th

Cir. 2004), but because Jones’s ineffective assistance of counsel claims are predicated on three

underlying claims resolved on the merits here, we can resolve Jones’s ineffective assistance of

counsel claims as well.

Jones argues that his counsel was ineffective for not raising three of the claims discussed

above: that Jones was entitled to represent himself; that the district court erred by sentencing Jones

to two six-year terms of supervised release for his two firearms convictions; and that Jones was

subjected to multiple punishments in violation of the Double Jeopardy Clause. Because we are

granting Jones relief on his supervised-release and double-jeopardy claims, his ineffective assistance

of counsel claims predicated on these two claims are moot. See United States v. Milledge, 109 F.3d

312, 316 n.2 (6th Cir. 1997). Because we conclude that Jones was not denied the right to represent

himself, it is clear that counsel was not constitutionally ineffective for failing to raise that claim.

See Mapes v. Coyle, 171 F.3d 408, 427 (6th Cir.), cert. denied, 528 U.S. 946 (1999). Accordingly,

we conclude that Jones is not entitled to relief on the ineffective assistance of counsel claims that

he has raised.

H. Remedy

As explained above, Jones is entitled to relief on two issues: 1) the length of his two terms

of supervised release for his two firearms convictions must be reduced from six years to three years;

and 2) his convictions on counts two, four, seven, nine, eleven, thirteen, fifteen, and eighteen must

be vacated, as must the corresponding terms of imprisonment, terms of supervised release, and
No. 06-5551 United States v. Jones Page 10

special assessments. Because these amendments to the district court’s judgment are ministerial in

nature, we believe that a limited remand is appropriate to permit the district court to conform the

judgment to make these two specific corrections. See 28 U.S.C. § 2106 (stating that we “may

remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such

further proceedings to be had as may be just under the circumstances”); see also United States v.

Moore, 131 F.3d 595, 597-98 (6th Cir. 1997) (describing our authority to order a limited remand).

We do not believe that another resentencing hearing would be necessary or appropriate on remand,

as we simply direct the entry of a corrected judgment.

III. CONCLUSION

Because the length of Jones’s two terms of supervised release for his two firearms

convictions exceeds the statutory maximum, and because eight of Jones’s convictions subjected him

to multiple punishments in violation of the Double Jeopardy Clause, we VACATE the judgment of

the district court and REMAND for the limited purpose of entering an amended judgment that

remedies these two errors.