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United States v. Jordan

United States Court of Appeals, Eighth Circuit

December 7, 2017

United States of America Plaintiff- Appellee
v.
Bralen Lamar Jordan Defendant-Appellant

          Submitted: September 18, 2017

         Appeal from United States District Court for the Eastern District of Arkansas - Little Rock

          Before COLLOTON, BENTON, and KELLY, Circuit Judges.

          BENTON, CIRCUIT JUDGE.

         Bralen L. Jordan pled guilty to being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The district court[1] denied his request for a third level of reduction for acceptance of responsibility under U.S.S.G. § 3E1.1(b). Jordan appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

         In 2014, Jordan pled guilty to unlawfully possessing a firearm. At sentencing, the district court decreased his offense level by two for acceptance of responsibility under U.S.S.G. § 3E1.1(a). The government declined to move for the third level under § 3E1.1(b). Jordan did not object. The district court sentenced him as an armed career criminal. He appealed. This court reversed the armed career criminal determination and remanded for resentencing. United States v. Jordan, 812 F.3d 1183, 1187 (8th Cir. 2016). In a supplemental memorandum, Jordan requested the court decrease his offense by three levels under "U.S.S.G. § 3E1.1(a)." The government responded that "the third point reduction is only made upon motion of the government." It again refused to move for the reduction under § 3E1.1(b). At the resentencing hearing, Jordan requested the reduction. He did not mention, let alone argue, that the government's refusal was error. The district court denied the third level because the government did not move for it.

         This court reviews the district court's "failure to grant a § 3E1.1(b) reduction" for clear error. United States v. Moore, 683 F.3d 927, 931 (8th Cir. 2012). If a defendant does not make "sufficiently specific objections" before the district court, the claim is reviewed for plain error. United States v. MacInnis, 607 F.3d 539, 542 (8th Cir. 2010).

         Jordan did not make "sufficiently specific objections" to the government withholding the reduction. See id. At resentencing, Jordan's counsel said:

The next issue is whether or not to award the third point, and the government objects, said they're not going to do it. But in light of everything's he's done since he's been arrested, I think the Court should go ahead and award him the third point. I know it's discretionary with the Court. But he's not done anything as far as being inconsistent with the plea of guilty, other than he appealed, and he appealed and he was right and we're back here for resentencing.

         The court immediately responded:

That request is overruled, Mr. Adams. Mr. Jordan, the Court only gets involved on the third point if the United States makes a motion. And so I don't have any role to play in that because Ms. Mazzanti has been clear that the United States is not going to ask for the third point. So I just don't get there, I can't get there under the law, whether you're entitled to that third point.

         The court made clear that a § 3E1.1(b) reduction is appropriate only "upon motion of the government." See U.S.S.G. § 3E1.1(b). Although Jordan requested the reduction, he did not ask why the government refused to move for it or argue that the refusal was error. Thus, he did not preserve his objection. Cf. United States v. Stacey, 531 F.3d 565, 568 (8th Cir. 2008) (holding defendant did not waive his objection where his counsel asked for "an explanation as to why the additional one-level reduction had been refused" and allowed the court "ample time to prevent or correct any error").

         Because he did not specifically object, this court reviews for plain error. See MacInnis, 607 F.3d at 542 (reviewing for plain error where the defendant "failed to make sufficiently specific objections to put the government on notice of what the government needed to prove at sentencing"). "Under plain error review, the defendant must show: (1) an error; (2) that is plain; and (3) that affects substantial rights. If a defendant makes that showing, an appellate court may exercise its discretion to correct ...


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