United States Court of Appeals

For the Eighth Circuit 

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No. 23-1816

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United States of America

 Plaintiff - Appellee

v.

Daryl Stephen Jones, III

 Defendant - Appellant

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Appeal from United States District Court 

for the Southern District of Iowa - Central 

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Submitted: October 19, 2023

Filed: December 27, 2023

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

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SHEPHERD, Circuit Judge.

Defendant Daryl Stephen Jones, III pled guilty to being a felon in possession 

of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(8). He now appeals

his sentence, claiming that the district court1 committed procedural error and 

1

The Honorable Stephanie M. Rose, Chief Judge, United States District Court 

for the Southern District of Iowa.
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imposed a substantively unreasonable sentence. Having jurisdiction under 28 U.S.C. 

§ 1291, we affirm the sentence. 

I. 

On April 6, 2022, Jones absconded from a residential reentry facility in 

Leavenworth, Kansas, where he was serving the remainder of a 60-month sentence 

for possession of a firearm in furtherance of a drug-trafficking crime. A federal 

arrest warrant for escape was issued, but Jones’s whereabouts remained unknown to 

law enforcement for the next six months.

That changed when law enforcement in Des Moines, Iowa saw posts that 

Jones uploaded to his Snapchat account from a local barbershop. Officers went to 

the barbershop and arrested Jones while he was getting his hair cut. At the time of 

his arrest, Jones was wearing a Gucci fanny-pack strapped to his chest. From the 

fanny-pack, officers recovered a loaded .40 caliber handgun with an extended 

magazine and extra ammunition.

Jones was subsequently charged with being a felon in possession of a firearm. 

After he pled guilty, the district court sentenced him to 84 months’ imprisonment 

with 3 years of supervised release, to be served consecutively to any term of 

imprisonment or supervised release imposed for the then-pending escape charge in 

the District of Kansas. Jones now appeals this sentence.

II. 

 “When we review the imposition of sentences, whether inside or outside the 

Guidelines range, we apply a deferential abuse-of-discretion standard.” United 

States v. Godfrey, 863 F.3d 1088, 1094 (8th Cir. 2017) (citation omitted). In so 

doing, “[w]e review a district court’s sentence in two steps: first we review for 

significant procedural error; and second, if there is no significant procedural error, 

we review for substantive reasonableness.” Id. (citation omitted).
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Although the list is not exhaustive, “[p]rocedural errors 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.’” 

Id. at 1094-95 (citation omitted). Where, as here, a defendant properly raised his 

objections before the district court, “[i]n reviewing the sentence for procedural 

errors, we review a district court’s interpretation and application of the guidelines de 

novo and its factual findings for clear error.” Id. at 1095 (citation omitted)

(explaining that failure to object to an alleged procedural error at a sentencing 

hearing would result in plain error review). “We reverse for clear error ‘only when 

the entire record definitely and firmly illustrates that the lower court made a 

mistake.’” United States v. Clark, 999 F.3d 1095, 1097 (8th Cir. 2021) (per curiam)

(citation omitted).

A.

Jones challenges the district court’s application of a four-level sentencing 

enhancement under USSG § 2K2.1(b)(6)(B) for his possession of a firearm in 

connection with the escape felony. See 18 U.S.C. § 751. Jones first argues that there 

is no evidence he committed the escape felony. Because Jones had only been 

charged with escape in the District of Kansas at the time of sentencing, the district 

court had to find, by a preponderance of the evidence, whether the escape felony was 

committed. United States v. Fisher, 965 F.3d 625, 630-31 (8th Cir. 2020) (per 

curiam). 

We find no clear error in the district court’s conclusion that the escape felony

was committed. Federal escape is a continuing crime, United States v. Bailey, 444 

U.S. 394, 413 (1980), and it does not end until the defendant is arrested or makes a 

bona fide attempt to turn himself in, United States v. Gonzalez, 495 F.3d 577, 580-81

(8th Cir. 2007). Jones did not object at the sentencing hearing when the district court 

recounted his flight from the reentry facility, nor did he object to the portions of the
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PSR detailing the same. The district court was therefore entitled to accept those 

facts as true for sentencing purposes. See United States v. Razo-Guerra, 534 F.3d 

970, 975 (8th Cir. 2008) (explaining that a district court may accept facts as true for 

sentencing purposes if they are contained in the PSR and the defendant does not 

object to them). 

Jones also argues that there is no evidence the firearm facilitated his escape. 

See USSG § 2K2.1, comment. (n.14(A)) (facilitation requirement). We disagree. 

Jones was arrested during a haircut with a loaded handgun and extra ammunition in 

the Gucci fanny-pack strapped to his chest. The district court was therefore 

permitted to find that the handgun facilitated Jones’s ongoing escape because he kept 

it in an easily accessible location while committing that felony. United States v. 

Mathis, 911 F.3d 903, 908 (8th Cir. 2018) (“[W]here a defendant keeps a firearm ‘at 

an easily accessible location’ while committing a felony offense, a sentencing court 

may infer that the firearm ‘emboldened the defendant to engage in the illegal act.’” 

(citation omitted)).

B.

Jones also challenges the district court’s calculation of two criminal-history 

points for his 2013 controlled substance possession offense. Upon de novo review, 

we agree with the district court’s application of the Guidelines to this offense. 

Godfrey, 863 F.3d at 1095. 

USSG § 4A1.1(b) provides that two points should be applied for “each prior 

sentence of imprisonment of at least sixty days” that is not otherwise already 

counted. The Guidelines further provide that “[i]n the case of a prior revocation of 

probation . . . , add the original term of imprisonment to any term of imprisonment 

imposed upon revocation.” USSG § 4A1.2(k)(1). In other words, “[r]ather than 

count the original sentence and the resentence after revocation as separate sentences, 

the sentence given upon revocation should be added to the original sentence of 
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imprisonment, if any, and the total should be counted as if it were one sentence.” 

USSG § 4A1.2, comment. (n.11). 

That is precisely the calculation the district court made. Jones pled guilty to 

the 2013 possession offense and was sentenced to one year of probation with 

deferred judgment. His probation was then revoked, and he was imprisoned for 

seven days. Later, his deferred judgment was revoked, and he was imprisoned for a 

further 51 days with another year of probation. His probation was then revoked 

again, and he was imprisoned for another 59 days. Therefore, adding the sentences 

given upon revocation of probation to the original sentence, Jones was sentenced to 

117 days of imprisonment. This satisfies § 4A1.1(b)’s requirement of “at least sixty

days.”

C. 

Jones next argues that the district court erred in failing to apply a downward 

departure from the calculated Guidelines range based on the alleged 

overrepresentation of his criminal history. But the district court stated that it was 

“fully aware of [its] authority to depart downward under 4A1.3(b) in cases where 

[it] find[s] a defendant’s criminal history category substantially overrepresents the

seriousness of the defendant’s criminal conduct.” When, as here, a district court is 

aware of this authority and there is no allegation of an unconstitutional motive, its 

decision not to depart is unreviewable. United States v. Gonzalez-Lopez, 335 F.3d 

793, 799 (8th Cir. 2003). 

D. 

Finally, Jones argues that his within-Guidelines-range sentence is 

substantively unreasonable. At sentencing, “[a] district court abuses its discretion 

when it (1) fails to consider a relevant factor that should have received significant 

weight; (2) gives significant weight to an improper or irrelevant factor; or 

(3) considers only the appropriate factors but in weighing those factors commits a 
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clear error of judgment.” United States v. Palkowitsch, 36 F.4th 796, 802 (8th Cir. 

2022) (citation omitted). “A sentence within the Guidelines range is accorded a 

presumption of substantive reasonableness on appeal,” United States v. Garcia, 946 

F.3d 413, 419 (8th Cir. 2019) (citation omitted), and “[i]t will be the unusual case 

when we reverse a district court sentence—whether within, above, or below the 

applicable Guidelines range—as substantively unreasonable,” Godfrey, 863 F.3d at 

1099 (citation omitted).

Jones first asserts that the district court failed to consider all of the 18 U.S.C.

§ 3553(a) sentencing factors. However, the district court made clear at sentencing 

that it had considered all of the § 3553(a) factors, and it was not required to 

mechanically recite them. United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 

2009) (en banc). Jones then asserts that the “right thing” for the district court to have 

done would be to order his sentence to run concurrently with his anticipated escape

sentence, rather than consecutively. In support, he cites mitigating facts about his 

life, such as his “rough” childhood, his drug and alcohol use, and his continuing 

education. But these are the very facts the district court balanced against Jones’s 

undeterred “pattern of criminal activity” and the failure of “nearly every type of

intervention . . . for the last 14 years.” As the district court explained: 

I am certainly concerned about [Jones’s] history here. He’s a young 

man, but, you know, we’ve tried everything I know how to try here and 

not succeeded in getting [him] away from this community of people 

and away from guns. . . . [He was] in an escape status. And, clearly, 

he could have gone anywhere. Instead, he returned right back to the 

nest of people who’ve attempted to kill him on multiple occasions and 

got himself a gun . . . with 19 bullets in it and extra bullets just in case, 

and that’s all very concerning behavior. 

 

Jones’s argument is nothing more than “a disagreement with the manner in 

which the district court weighed” the sentencing factors. United States v. Merrell, 

842 F.3d 577, 585 (8th Cir. 2016). We find no abuse of discretion.
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III. 

For the foregoing reasons, we affirm Jones’s sentence.

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