United States v. Roy Shane Jackson , 180 F. App'x 856 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 11, 2006
No. 04-16659 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 01-00077-CR-J-25HTS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROY SHANE JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(May 11, 2006)
Before TJOFLAT, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Roy Shane Jackson appeals his 36 month sentence imposed after the district
court revoked his supervised release. We review a district court’s decision to
revoke supervised release for abuse of discretion. United States v. Copeland, 20
F.3d 412, 413 (11th Cir. 1994). We review the legality of a sentence imposed
pursuant to revocation of a term of supervised release de novo, United States v.
Aimufa, 122 F.3d 1376, 1378 (11th Cir. 1997), and the ultimate sentence for
reasonableness, see United States v. Crawford, 407 F.3d 1174, 1179 (11th Cir.
2005) (citing United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 767 (2005)).
I.
In June 2001, Jackson pleaded guilty to one count of conspiracy to distribute
cocaine and cocaine base in violation of 21 U.S.C. § 846 and was sentenced to 56
months imprisonment and 48 months of supervised release. On May 31, 2004,
Jackson was released from prison and began his term of supervised release.
On August 29, 2004, Jackson was arrested in Gainesville, Florida. The
arresting officers found Jackson, Christopher Mosley, and three other individuals
sitting in a car parked in a parking lot outside a bar that was also about 500 feet
from a church. The officers observed Jackson in the driver’s seat with a small
plastic baggie containing a white powder and a straw on his lap. After one of the
officers reached into the vehicle and seized the baggie, Jackson turned toward the
back seat of the vehicle. The officers removed Jackson from the vehicle and
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arrested him. The officers then searched Jackson and found $2,950 in small bills
(mainly $20 denominations) in his pocket. During a search of the car, the officers
found in the back seat two other plastic baggies, one large and one small, both of
which also contained a white powder. The contents of all three bags seized from
Jackson and the vehicle later tested positive for cocaine. The smaller bags
contained approximately .02 grams of cocaine and the larger bag found in the back
seat of the car contained between 2.5 and 3.0 grams of cocaine. Jackson was
eventually charged under Florida law with possession of cocaine with intent to sell
within 1,000 feet of a place of worship and use of drug paraphernalia.
In October 2004, the U.S. Probation Office filed a revocation petition
charging Jackson with committing four violations of the terms of his supervised
release. First, the petition charged that on August 29, 2004 Jackson committed
new criminal conduct while under supervision. Second, the petition charged that
Jackson traveled outside of the Middle District of Florida on August 29, 2004
without permission of his probation officer. Third, the petition charged that
Jackson provided four urine specimens in August 2004 that tested positive for
cocaine. Fourth, the petition charged that on September 17, 2004 Jackson failed to
participate in a drug treatment program. Jackson had been discharged from the
program due to unsatisfactory participation in group counseling sessions and
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continued drug use. The district court issued a warrant for Jackson’s arrest, and
Jackson was arrested at his residence on October 20, 2004.
At a detention hearing before a magistrate judge on October 25, 2004, the
government presented a factual proffer that Jackson had been arrested on drug
charges on August 29, 2004 by Gainesville police officers. The government also
proffered that when Jackson was arrested at his residence on October 20, 2004 for
violation of his supervised release, U.S. Marshals found 3.3 grams of crack
cocaine, a substantial number of baggies consistent with drug distribution, and an
electronic scale in one of the two bedrooms in the residence. In response to
questioning from Jackson’s counsel, the government stated that it did not know if
anyone else lived in the residence and that it was not aware of any large amounts of
cash found there. The magistrate judge issued an order of detention pending a
revocation hearing.
At his revocation hearing on December 13, 2004, Jackson admitted to all of
the allegations in the probation officer’s petition except for the charge that he
committed new criminal conduct on August 29, 2004. Each of the Gainesville
police officers testified to the facts of Jackson’s arrest on August 29, 2004.
Mosley testified that he did not see Jackson sell or distribute any drugs on that day.
Jackson testified and denied that he had possessed or sold cocaine on August 29,
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2004. Jackson also denied that there was cocaine in his lap when the officers first
saw him. He acknowledged that there was cocaine in the backseat of the car but
stated that he did not know how it got there. Jackson also stated that the money
belonged to his girlfriend and that he was just holding it for her.
The district court found that based on his admission, Jackson had committed
the second, third and fourth charges listed in the revocation petition. The court
also found that Jackson had committed the offense of possession of cocaine with
intent to distribute, the first violation alleged in the revocation petition. The court
revoked Jackson’s supervised release.
The government advocated a sentence of 36 months imprisonment. The
government argued that the evidence found at Jackson’s residence on October 20,
2004 showed that “even after his arrest down in Gainesville and his charges there
in the state, knowing that he was on extremely thin ice, [Jackson] continued to sell,
he continued to have the implements of distributing cocaine and trafficking
cocaine.” Jackson did not object to those statements. The government also argued
that even though the advisory sentencing range under the United States Sentencing
Guidelines was 24 to 30 months, Jackson should receive 36 months—equal to 24
months plus one year, which was the approximate amount of credit Jackson
received on his underlying sentence for participating in a drug treatment program
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while in prison. Jackson responded that he should not be punished for failing the
drug treatment program.
Before sentencing Jackson, the district court stated: “If there is ever a case
that I’ve seen that warrants a sentence outside of the guidelines, this . . . is it. I
tried the first case, these guys were dealing dope all over Bradford County, Clay
County, so I’m pretty well familiar with this.” The court then found that Jackson
had committed a Grade A offense. The court stated that it was going to follow the
government’s sentencing recommendation, but for the reason that the evidence
found at Jackson’s home on October 20, 2004 showed that he had continued to sell
cocaine after his arrest on August 29, 2004. The court sentenced Jackson to 36
months imprisonment and 18 months of supervised release. Following the court’s
imposition of the sentence, Jackson was not given an opportunity to object to the
sentence at the end of the revocation hearing.
II.
Jackson first contends that the district court erred in finding that he
committed a Grade A supervised release violation. If the district court “finds by a
preponderance of the evidence that the defendant violated a condition of
supervised release,” it may revoke a term of supervised release and, after
considering certain of the factors in 18 U.S.C. § 3553(a), impose a sentence of
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imprisonment for the violation. 18 U.S.C. § 3583(e)(3). Section 3553 in turn
directs the district court to consult the relevant provisions of the United States
Sentencing Guidelines. 18 U.S.C. § 3553(a)(4)(B).
Under U.S.S.G. § 7B1.1, Grade A supervised release violations include:
conduct constituting (A) a federal, state, or local offense
punishable by a term of imprisonment exceeding one
year that (i) is a crime of violence, (ii) is a controlled
substance offense, or (iii) involves possession of a
firearm or destructive device of a type described in 26
U.S.C. § 5845(a); or (B) any other federal, state, or local
offense punishable by a term of imprisonment exceeding
twenty years.
U.S.S.G. § 7B1.1(a)(1) (Nov. 1, 2004). Under Florida law, the possession of
cocaine “with intent to sell, manufacture, or deliver . . . in, on, or within 1,000 feet
of a physical place for worship” is a first-degree violation punishable by up to 30
years imprisonment. Fla. Stat. §§ 775.082(3)(b); 893.03(2)(a)(4); 893.13(1)(e).
Accordingly, that offense qualifies as a Grade A supervised release violation. See
U.S.S.G. § 7B1.1(a)(1)(B).
The testimony of the arresting officers that they found multiple bags of
cocaine in the car (including one on Jackson’s lap), that Jackson turned toward the
back seat of the car where the one larger and one smaller bag of cocaine were
found, and that Jackson had a large amount of cash in his pocket provided a
sufficient basis for the district court to find by a preponderance of the evidence that
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Jackson possessed the drugs with intent to distribute within 1,000 of a physical
place of worship in violation of Florida law. Although Jackson and Mosley
testified to the contrary, “[t]he credibility of a witness is in the province of the
factfinder and this court will not ordinarily review the factfinder’s determination of
credibility.” See United States v. Copeland, 20 F.3d 412, 413 (11th Cir. 1994).
Accordingly, we conclude that the district court did not abuse its discretion in
finding that Jackson committed a Grade A supervised release violation.1
III.
Jackson also argues that the district court erred under United States v. Jones,
899 F.2d 1097 (11th Cir. 1990), overruled on other grounds, United States v.
Morrill, 984 F.2d 1136 (11th Cir. 1993), because it did not provide him with an
opportunity to object to his sentence at the end of the revocation hearing. In Jones,
this Court held that district courts must “elicit fully articulated objections,
following imposition of sentence, to the court’s ultimate findings of fact and
conclusions of law.” 899 F.2d at 1102. We described the remedy for a district
1
Although the government has argued in this appeal that simple possession under Florida
law qualifies as a Grade A supervised release violation, we are not precluded from considering
whether Jackson committed the offense of possession of cocaine with intent to distribute. See
United States v. Simmons, 368 F.3d 1335, 1342 (11th Cir. 2004) (stating, in a criminal case, that
“we have the authority to affirm the district court, even if it is on a ground other than that upon
which it based its decision”); United States v. Mejia, 82 F.3d 1032, 1034 (11th Cir. 1996)
(holding, on appeal of defendants’ convictions, that this Court “may affirm on any ground that
finds support in the record”).
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court’s failure to elicit objections from a defendant to his sentence as follows:
Where the district court has not elicited fully articulated objections
following the imposition of sentence, this court will vacate the
sentence and remand for further sentencing in order to give the parties
an opportunity to raise and explain their objections. Where the district
court has offered the opportunity to object and a party is silent or fails
to state the grounds for objection, objections to the sentence will be
waived for purposes of appeal, and this court will not entertain an
appeal based upon such objections unless refusal to do so would result
in manifest injustice.
899 F.2d at 1103.
We have indicated that the procedure announced in Jones should be
followed in probation revocation hearings. See United States v. Milano, 32 F.3d
1499, 1503 (11th Cir. 1994) (determining that the district court provided the
defendant with the opportunity to make specific objections at his probation
revocation hearing, and because the defendant chose not to do so, there was no
Jones violation), superceded on other grounds, United States v. Cook, 291 F.3d
1297, 1300 n.3 (11th Cir. 2002). We have also stated that supervised release and
probation are “conceptually the same” and noted that “the courts treat revocations
the same whether they involve probation, parole, or supervised release.” United
States v. Frazier, 26 F.3d 110, 113 (11th Cir. 1994). The sentencing guidelines
themselves “treat[] violations of the conditions of probation and supervised release
as functionally equivalent.” U.S.S.G. Ch. 7, Pt. B, intro. cmt.
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Accordingly, we hold that the district court in the present case committed a
Jones violation by failing to elicit objections from Jackson after sentencing him
following the revocation of his supervised release. Because of the fact-intensive
nature of Jackson’s argument that the district court erred in considering the drugs
and drug paraphernalia found at his home when he was arrested on October 20,
2004 and the paucity of evidence in the record on that issue, we are unable to
conduct meaningful appellate review of it. Cf. United States v. Cruz, 946 F.2d
122, 124 n.1 (11th Cir. 1991) (indicating that where a district court commits a
“technical violation of Jones,” this Court may proceed to the issues raised on
appeal if “the record is sufficient for meaningful appellate review”). Therefore, we
vacate Jackson’s sentence and remand for resentencing.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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