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United States v. Jones

United States District Court, D. Kansas

February 10, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CRYSTAL LYNN JONES, Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge

         Crystal Jones pleaded guilty to embezzlement under 18 U.S.C. § 2314 on November 24, 2014. Docs. 16, 18. She was convicted and, four months later, sentenced to 27 months in custody and three years of supervised release. Doc. 27 at 2-3, 5. Her sentence also ordered her to make restitution in the amount of $482, 260. Id. Ms. Jones now asks the court to set aside her conviction because of several alleged constitutional violations occurring during plea bargaining and sentencing. Ms. Jones[1] filed a motion under 28 U.S.C. § 2255 asking the court to vacate, set aside, or correct her sentence (“§ 2255 Motion”). Doc. 81. In this Motion, [2] Ms. Jones asserts six claims for relief, which the court summarizes in the following abbreviated form:

1. Ineffective assistance of counsel;
2. Her guilty plea was not knowing and voluntary;
3. She did not knowingly and voluntarily waive her right to indictment;
4. The government did not prove the elements of the crime charged, including intent and the loss amount;
5. Prosecutorial misconduct; and
6. The court allowed an improper victim statement at sentencing.

         While waiting for the court to rule on her § 2255 Motion, Ms. Jones filed a Motion for Evidentiary Hearing asking the court to hold an evidentiary hearing on her § 2255 Motion. Doc. 106. The court considers both motions below.

         Nearly a year before Ms. Jones filed her § 2255 Motion, she directly appealed her sentence to the Tenth Circuit (“direct appeal”). Preliminary Record on Appeal at 7, United States v. Jones, 15-3059 (10th Cir. Mar. 19, 2015), ECF No. 01019401981. In her direct appeal, Ms. Jones raised two issues: (1) whether the court used the wrong standard when determining the loss amount during Ms. Jones's sentencing; and (2) whether the court erred when it determined the amount of its restitution award. Appellant's Brief at 2, United States v. Jones, 15-3059 (10th Cir. Aug. 24, 2015), ECF No. 01019480408 [hereinafter Appellant's Brief]. The Tenth Circuit heard oral argument in Ms. Jones's appeal on March 10, 2016, but has not yet issued its opinion.

         Ms. Jones thus has filed her § 2255 Motion before the Tenth Circuit has ruled on her direct appeal. So, the court must address a timing issue before it can proceed to the merits of Ms. Jones's motions. “Absent extraordinary circumstances, the orderly administration of criminal justice precludes a district court from considering a § 2255 motion while review of the direct appeal is still pending.” United States v. Cook, 997 F.2d 1312, 1319 (10th Cir. 1993) (citations omitted). The court thus may proceed to the merits of Ms. Jones's motions only if her case presents extraordinary circumstances.

         Extraordinary circumstances may exist where the government-not the defendant-filed the direct appeal or when there is a “complete dichotomy between the issues raised by the . . . direct appeal and those raised by . . . [the] § 2255 motion.” United States v. Prows, 448 F.3d 1223, 1229 (10th Cir. 2006). Such circumstances also exist where “the [§ 2255] motion raises a substantial question about the integrity of the government's prosecution”-i.e., questions of perjury. United States v. Rangel, 519 F.3d 1258, 1265 (10th Cir. 2008).

         Ms. Jones does not argue that extraordinary circumstances exist here. Nor can the court discern any. Ms. Jones does not question the integrity of the government's prosecution; she only questions its sufficiency. Ms. Jones, not the government, filed the direct appeal in this case. And, the issues in Ms. Jones's § 2255 Motion and her direct appeal do overlap one another somewhat.

         Ms. Jones's § 2255 Motion raises at least one issue that is pending before the Tenth Circuit in her direct appeal. In her § 2255 Motion, Ms. Jones contends that the government did not prove that all of the funds included in the total loss amount at sentencing resulted from her embezzlement. See Doc. 81-1 at 20 (arguing that the government failed to establish evidence “relating to the circumstances in which employees were authorized payments of their personal bills”); Doc. 87 at 7 (“The sentence imposed was directly related to and depend[e]nt upon the loss amount which was not reliably proven or calculated . . . .”). In her direct appeal, Ms. Jones contends that the court wrongly placed the burden on her to disprove the loss amount when it is “the prosecution [who must] show the claimed amounts were not authorized.” Appellant's Brief at 23. In other words, Ms. Jones contends-on direct appeal-that the government did not prove the loss amount at sentencing because the court put the burden on Ms. Jones to disprove the loss amount. So, if Ms. Jones succeeds on her direct appeal, the court would hold a second sentencing hearing where the government must prove that all of the funds included in the loss amount were in fact the result of embezzlement. Ms. Jones's § 2255 Motion and direct appeal thus overlap one another, which strongly counsels against hearing her § 2255 Motion now. See, e.g., United States v. Hunter, 458 F. App'x 732, 734 (10th Cir. 2012) (finding a § 2255 motion premature because the motion raised the same issues as the defendant's direct appeal); United States v. Garnica-Anita, Nos. 06-20160-JWL, 11-02671-JWL, 2012 WL 662325, at *2 (D. Kan. Feb. 28, 2012) (dismissing § 2255 motion because “the claims presented in both the appeal and § 2255 petition ...


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