United States v. Jackson ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-7-2007
USA v. Jackson
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-5147
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No.: 05-5147
UNITED STATES OF AMERICA
v.
KENDALL JACKSON,
Appellant
____________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No.: 01-cr-00401-6
District Judge: The Honorable Edwin M. Kosik
____________________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 14, 2006
Before: SMITH and ROTH, Circuit Judges,
and YOHN, District Judge*
(Filed: February 7, 2007)
____________________
OPINION
____________________
_____________________
*The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.
On February 10, 2003, a jury found Kendall Jackson guilty of four counts of
distribution and possession with the intent to distribute crack cocaine in violation of 21
U.S.C. § 841(a)(1). The amount of crack cocaine involved in these counts totaled 0.94
grams. Three days prior to his conviction, the District Court granted Jackson’s motion for
judgment of acquittal, filed pursuant to Federal Rule of Criminal Procedure 29 (“Rule
29”), with respect to the count of conspiracy to distribute and possess with intent to
distribute in excess of fifty grams of crack cocaine in violation of 21 U.S.C. § 846.1Jackson’s presentence report and its addendum concluded that Jackson was
accountable for at least 150 but less than 500 grams of crack cocaine associated with the
conspiracy. At Jackson’s sentencing hearing, FBI Agent Kevin Wevodau testified that
Jackson admitted to him in a February 27, 2002 interview that he bought and sold at least
168 grams of crack cocaine.2 Jackson denies making this statement. The District Court
credited the testimony of Agent Wevodau and found under the preponderance of the
evidence standard that the government had established that Jackson was responsible for
168 grams of crack cocaine as relevant conduct. The District Court sentenced Jackson to
235 months of imprisonment. Jackson appealed.
1
Jackson’s co-defendants, Kevin Dowdy, Bernard Jones, and Sherrod Young, were charged and
convicted of the conspiracy count. A jury found that, with respect to the conspiracy, fifty grams
or more of crack cocaine were attributable to each co-defendant.
2
This statement was not used by the government at Jackson’s trial due to the constitutional
principles established by Bruton v. United States, 391 U.S. 123 (1968).
2
We affirmed his conviction, but vacated his sentence and remanded for
resentencing in accordance with the Supreme Court’s intervening decision in United
States v. Booker, 543 U.S. 220 (2005). See United States v. Jackson, 149 Fed. Appx. 69(3d Cir. 2005) (unpublished). On remand, the District Court imposed a sentence of 155
months of imprisonment. This timely appeal followed.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See
United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).3
Jackson contends that his sentence is unreasonable for two reasons. First, he
asserts that the District Court improperly considered as relevant conduct the drug
quantities involved in the conspiracy, even though it had granted a motion for acquittal on
the conspiracy count. Jackson believes that, under Booker, he should be sentenced based
on the 0.94 grams of crack cocaine found beyond a reasonable doubt by a jury, rather than
the 168 grams found by the District Court under a preponderance of the evidence
standard.4 In addition, Jackson argues that the District Court failed to impose a sentence
3
In its brief which predates our decision in Cooper, the government argues Jackson’s appeal is
not properly before this court under 18 U.S.C. § 3742(a). We decided otherwise in Cooper. 437
F.3d at 327-28.
4
Jackson’s position is that if the District Court had considered only 0.94 grams as relevant
conduct, the amount for which he was convicted, his base offense level would have been 16
which would have yielded an advisory sentence range of 41 to 51 months, rather than the range
of 235 to 293 months recommended by the presentence report and adhered to by the District
Court. We note, however, that Jackson’s current sentence of 155 months represents a significant
downward departure from the latter range.
Further, to the extent that Jackson is arguing that the determination of the amount of
3
in parity with his co-defendants in violation of 18 U.S.C. § 3553(a)(6). Jackson urges
that because the District Court reduced the sentences of co-defendants Bernard Jones,
Sherrod Young and Kevin Dowdy by nine-and-a-half to ten years,5 he is entitled to the
same reduction. He argues that the District Court unreasonably subtracted only 6.6 years
from his original sentence.
Jackson’s argument that the District Court erred in considering the 168 grams of
crack cocaine as relevant conduct is contrary to legal and statutory authority and to the
sentencing guidelines. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court
held that an acquittal on a charge does not prevent the District Court from considering at
sentencing the underlying conduct, so long as it has been proven by a preponderance of
the evidence. 519 U.S. at 157. The majority opinion of Justice Stevens in Booker, after
discussing Watts,6 declared that “none of our prior cases is inconsistent with today’s
decision.” Booker, 543 U.S. at 241. Thus, Watts remains good law after Booker. While
crack cocaine must be made by a jury beyond a reasonable doubt, he is foreclosed by our
decision in Cooper. 437 F.3d at 330 (“As before Booker, the standard of proof under the
guidelines for sentencing facts continues to be preponderance of the evidence.”); see also United
States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999) (stating that a preponderance of the evidence
must support the District Court’s determination of drug quantity (citing United States v. Miele,
989 F.2d 659, 663 (3d Cir. 1993)).
5
The District Court reduced Jones’ sentence by ten years (from 360 months to 240 months),
Young’s sentence by nine-and-a-half years (from 324 to 210 months); and Dowdy’s sentence by
nine-and-a-half years (from 324 months to 210 months).
6
The majority opinion of Justice Stevens also discussed United States v. Dunnigan, 507 U.S. 87(1993), Witte v. United States, 515 U.S. 389 (1995), and Edwards v. United States, 523 U.S. 511(1998).
4
Jackson seeks to distinguish Watts because he was acquitted by a judge rather than by a
jury, he offers no authority for this proposition. Indeed, pursuant to 18 U.S.C. § 3661,
which was not invalidated by Booker,7 “[n]o limitation shall be placed on the information
concerning the background, character, and conduct of a person convicted of an offense
which a Court of the United States may receive and consider for the purpose of imposing
an appropriate sentence.” § 3661. The sentencing guidelines also do not limit the
information a sentencing court may consider in imposing a sentence. See U.S. Sentencing
Guidelines Manual § 1B1.4 (2006). Moreover, they clearly permit the District Court to
consider all other related conduct. See id. at § 1B1.3. The commentary to § 1B1.3 states:
“Conduct that is not formally charged or is not an element of the offense of conviction
may enter into the determination of the applicable guideline sentencing range.” § 1B1.3
cmt. background (emphasis added). Thus, we find no error by the District Court in
considering the 168 grams as relevant conduct.
Jackson’s second argument that his sentence is unreasonable because the District
Court failed to achieve parity among his co-defendants is also not persuasive. Section
3553(a)(6) provides that the District Court shall consider “the need to avoid unwarranted
sentence disparities among defendants with similar records who have been found guilty of
similar conduct.” § 3553(a)(6). Congress’ intent in passing § 3553(a)(6) was to promote
national uniformity in sentencing rather than uniformity among defendants in the same
7
See Booker, 543 U.S. at 259 (stating that “[w]ith [18 U.S.C. §§ 3553(b)(1) and 3742(e)] excised,
. . . the remainder of the Act satisfies the Court’s constitutional requirements”).
5
case. United States v. Seligsohn, 981 F.2d 1418, 1428 (3d Cir. 1992) (citing United
States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992)). After Booker, we concluded that a
defendant cannot rely upon § 3553(a)(6) to argue for a reduced sentence to create parity
among his or her co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir.
2006). However, “although § 3553(a) does not require district courts to consider
sentencing disparities among co-defendants, it also does not prohibit them from doing
so.” Parker, 462 F.3d at 277. Such a consideration is certainly within the court’s “broad
discretion in imposing a sentence within a statutory range.” Id. (quoting Booker, 543
U.S. at 233). In this case, the District Judge made a discretionary reduction of Jackson’s
sentence by roughly the same percentage (one-third) that he reduced the sentences of
Jackson’s co-defendants, establishing what he considered “appropriate parity.” Jackson’s
proposition that “parity by percentage” is unreasonable not only lacks legal support, but
his proposed alternative of subtracting the same number of years for all defendants defies
all logic. As the government illustrates, this would mean that if one defendant were
facing a twenty-year sentence and another a ten-year sentence, and the first defendant’s
sentence were reduced by ten years, the second would receive no jail time–an untenable
result even in the post-Booker discretionary regime. Accordingly, we will affirm the
District Court’s judgment of sentence.
6