United States v. Rogers Lee Jackson , 134 F. App'x 387 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 04-13281 ELEVENTH CIRCUIT
Non-Argument Calendar JUNE 10, 2005
________________________ THOMAS K. KAHN
CLERK
D.C. Docket No. 03-00028-CR-1-WLS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROGERS LEE JACKSON,
Defendant-Appellant.
__________________________
Appeal from the United States District Court for the
Middle District of Georgia
_________________________
(June 10, 2005)
Before TJOFLAT, DUBINA and KRAVITCH, Circuit Judges.
PER CURIAM:
Rogers Lee Jackson was indicted for five counts of possession with intent to
distribute more than five grams of crack, in violation of 21 U.S.C. § 841.
The evidence at trial established that the DEA organized controlled buys
using a confidential informant (“CI”) who would call Jackson’s cell phone and
arrange to purchase crack. In most cases, the meeting occurred at Jackson’s home
and each phone call and meeting was tape recorded. Over defense counsel’s
objections, the CI identified Jackson’s voice on the tape, and identified Jackson as
the person with whom he met to purchase crack. According to the DEA forensic
chemist, the total weight from the five exchanges involving the CI was 58 grams
of crack. In an interview after his arrest, Jackson identified his cocaine sources,
and informed agents that he purchased approximately one kilogram of powder
cocaine per week for a year, which he converted to crack.
After the government rested, and Jackson decided not to testify, defense
counsel explained that he intended to call no witnesses because “[w]hile we have
subpoenaed six witnesses and as I understand that are available and outside the
courtroom ready to testify, in light of further discussion with Mr. Jackson, we
would present no evidence.” The jury convicted Jackson of all five counts.
The probation officer prepared a presentence investigation report (“PSI”),
grouping the five counts together and assigning a base offense level of 36 under
U.S.S.G. §§ 3D1.2 and 2D1.1(c)(2) because Jackson was held accountable for
more than 500 grams, but less than 1.5 kilograms of crack. Jackson’s resulting
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guidelines range was 188 to 235 months imprisonment. Both Jackson and the
government objected to the amount of drugs attributed to Jackson.
At sentencing, the government presented testimony from several people
who stated that they had been involved in drug deals with Jackson. Tracey Timly
admitted that he used to purchase crack from Jackson, and that he typically made
one purchase each week of two or three cookies each time with Jackson as his only
supplier. He explained that a cookie weighed about 25 grams and cost about $650
to $750. Timly further explained the process by which powder cocaine was
converted to crack. Calvert Brown testified that he purchased crack from Jackson
two or three times by contacting Jackson via cell phone.
Nevoria Jackson stated that in February 2002 he sold 20 cookies to Jackson
for $5,000. Crystal Young testified that she purchased crack from Jackson over a
few years and that she usually bought about $20 worth at a time, but that she had
seen larger quantities at Jackson’s home.
Jackson again decided not to testify, and defense counsel did not proffer any
other evidence. The government argued that the court should consider these drug
transactions as relevant conduct, and it claimed that it was proper to offer
testimony on the conversion from powder to crack through a lay person familiar
with the process. According to the government, even using conservative estimates
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on the amount of yield from the conversion process, Jackson was responsible for
more than 1.5 kilograms of cocaine, which was supported by Jackson’s own
statements to DEA and ATF agents after his arrest. Defense counsel responded
that there was no scientific evidence to support the conversion amounts, and the
testimony of a drug trafficker was not sufficient.
The court took the issue under advisement and continued sentencing. When
sentencing reconvened, the court explained that a one-to-one ratio of powder to
crack cocaine was not proper, and that the government failed to meet its burden
establishing the accurate ratio. Accordingly, the court overruled the government’s
objection to the drug quantity. The court also overruled Jackson’s objection to
drug quantity, finding that Jackson was responsible for the 58 grams proven at
trial plus relevant conduct in the sales to Brown and Timly and the purchase from
Nevoria Jackson. The court sentenced Jackson to concurrent 235-month terms of
imprisonment on each count, and concurrent five-year terms of supervised release
on each count. Jackson now appeals, raising two issues: (1) his sentence is
unconstitutional in light of Blakely v. Washington, 542 U.S. –, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), and (2) trial counsel was constitutionally defective.
Because we conclude that the record is not sufficiently developed for us to address
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Jackson’s ineffective-assistance-of -counsel claim on direct appeal, we need not
discuss that issue.1
Jackson argues that his sentences are unconstitutional because he was held
accountable for conduct not charged in the indictment or proven to a jury beyond a
reasonable doubt, in violation of Blakely.
When a defendant fails to object to an error before the district court, this
court reviews the argument for plain error. United States v. Hall, 314 F.3d 565,
566 (11th Cir. 2002); see also United States v. Olano, 507 U.S. 725, 731-32, 113
S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993). “Plain error occurs where (1) there is
an error; (2) that is plain or obvious; (3) affecting the defendant’s substantial
rights in that it was prejudicial and not harmless; and (4) that seriously affects the
fairness, integrity, or public reputation of the judicial proceedings.” Hall, 314
F.3d at 566; Olano, 507 U.S. at 732. Here, although Jackson objected to the
1
Ineffective assistance of counsel is a mixed question of law and fact that this court reviews
de novo. United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003); United States v. Bender,
290 F.3d 1279, 1284 (11th Cir. 2002). This court generally does not consider ineffective-assistance-
of-counsel claims on direct appeal unless the record is sufficiently developed. Freixas, 332 F.3d at1319 n.3; Bender, 290 F.3d at 1284. Here, the record is not sufficiently developed for this court to
address the claim. Cf. Freixas, 332 F.3d at 1319 n.3 (finding the record sufficiently developed
because the court questioned the defendant concerning counsel during the plea colloquy and held a
hearing on the defendant’s request to withdraw her plea based on counsel’s alleged failure to discuss
the case with her). Jackson may bring this claim in a post-conviction collateral appeal under 28
U.S.C. § 2255.
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quantity of drugs for which he was held accountable, he did not do so based on
Blakely. Accordingly, we apply plain error review.
The U.S. Supreme Court in the landmark case of Blakely v. Washington,
124 S.Ct. 2531 (2004), reversed an upward departure imposed pursuant to the
State of Washington’s state sentencing guidelines. The Court applied the rule in
Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d
435 (2000), that “[o]ther than the fact of a prior conviction, any fact that increases
the penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Blakely, 124 S.Ct. at
2536-38. In reversing the upward departure, the Supreme Court held that the
“relevant statutory maximum for Apprendi purposes is the maximum a judge may
impose based solely on the facts reflected in the jury verdict or admitted by the
defendant.” Id. at 2537. The Court explicitly noted “[t]he Federal Guidelines are
not before us, and we express no opinion on them.” Id. at 2538 n.9.
Thereafter, the Supreme Court issued its decision in United States v.
Booker, 543 U.S. –, 125 S.Ct. 738, – L.Ed.2d – (2005), finding “no distinction of
constitutional significance between the Federal Sentencing Guidelines and the
Washington procedures at issue” in Blakely. Booker, 125 S.Ct. at 749. Resolving
the constitutional question left open in Blakely, the Court held that the mandatory
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nature of the federal guidelines rendered them incompatible with the Sixth
Amendment’s guarantee to the right to a jury trial. Id. at 749-51. In extending its
holding in Blakely to the Guidelines, the Court explicitly reaffirmed its rationale
in Apprendi. Id. at 756.
In a second and separate majority opinion, the Court in Booker concluded
that, to best preserve Congress’s intent in enacting the Sentencing Reform Act of
1984, the appropriate remedy was to “excise” two specific sections—18 U.S.C.
§ 3553(b)(1) (requiring a sentence within the guideline range, absent a departure)
and 18 U.S.C. § 3742(e) (establishing standards of review on appeal, including de
novo review of departures from the applicable guideline range)—thereby
effectively rendering the Sentencing Guidelines advisory only. Id. at 764. The
Court explained that district courts are not bound to apply the Sentencing
Guidelines, but “must consult those Guidelines and take them into account when
sentencing.” Id. at 767. The Court then announced that, under the remaining
provisions of § 3742, courts of appeals must review sentences for
“unreasonable[ness].” Id. at 765. The Court further indicated that both its “Sixth
Amendment holding and . . . remedial interpretation of the Sentencing Act” must
be applied to “all cases on direct review.” Id. at 769. The Court cautioned,
however, that not every sentence will give rise to a Sixth Amendment violation,
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nor would every appeal lead to a new sentencing hearing. Id. The Court
instructed reviewing courts to apply “ordinary prudential doctrines, determining,
for example, whether the issue was raised below and whether it fails the ‘plain-
error’ test.” Id.
We conclude that Jackson cannot show plain error in the imposition of his
sentence. See United States v. Rodriguez, 398 F.3d 1291 (11th Cir.), petition for
cert. filed, No. 04-1148 (Feb. 23, 2005) (acknowledging that a Booker error was
plain, but holding that, in order to show that his substantial rights were affected
under plain error review, the appellant must show that his sentence would have
been different but for the court’s use of the mandatory guidelines). There is no
evidence in the record to show that Jackson’s sentence would have been different
but for the mandatory guidelines. Accordingly, we AFFIRM Jackson’s
convictions and sentences.
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Tjoflat, Circuit Judge, concurring specially:
As I explain in my dissent to the court’s refusal to rehear Rodriguez en
banc, the error in a case such as this—where the district court enhances the
defendant’s sentence on the basis of facts not admitted by the defendant or found
by a jury—is structural error, and the third prong of the plain-error test is,
therefore, inapplicable. See United States v. Rodriguez, — F.3d —, 2005 WL
895174 (11th Cir. Apr. 19, 2005) (Tjoflat, J., dissenting from the denial of
rehearing en banc).1 Accordingly, the court should consider whether the error
“seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings,” United States v. Olano, 507 U.S. 725, 736, 113 S. Ct. 1770, 1779,
123 L. Ed.2d 508 (1993), and in this case, it does. I concur in the court’s
judgment because we are Rodriguez bound.
1
Jackson fails to establish the third prong of the plain error standard because he has not
shown (from whatever the district judge may have said on the record at his sentencing hearing)
“that his sentence would have been different but for the court’s use of the mandatory guidelines.”
Ante at _____. As a practical matter, such a showing is - in this case and in almost every case of
Booker plain error review - impossible to make.
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