United States v. Jackson , 295 F. App'x 572 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-5035
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JEROME BRYANT JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Jr.,
District Judge. (1:07-cr-00066-WO)
Submitted: September 29, 2008 Decided: October 8, 2008
Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., Winston-
Salem, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Michael A. DeFranco, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pursuant to a plea agreement, Jerome Bryant Jackson pled
guilty to possession of a firearm by a convicted felon, in
violation of 18 U.S.C. §§ 922(g), 924(e) (2000). He was sentenced
to 185 months’ imprisonment and a five-year term of supervised
release. On appeal, counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that, in his
opinion, there are no meritorious grounds for appeal, but raising
the issue of whether the federal prosecution violated the Double
Jeopardy Clause. The Government has responded, and Jackson has
filed a pro se supplemental brief. We affirm.
Defense counsel argues that Jackson’s federal prosecution
violates the prohibition against double jeopardy because he was
previously charged by the state of North Carolina for the same
conduct that formed the basis for his federal prosecution. The
Double Jeopardy Clause protects a defendant from repeated
prosecution for the same offense, including the right to have guilt
or innocence decided in a proceeding once jeopardy has attached.
Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982). Jeopardy attaches
in a jury trial when the jury is empaneled and sworn. Crist v.
Bretz, 437 U.S. 28, 37-38 (1978); Serfass v. United States, 420
U.S. 377, 388 (1975).
Although the Double Jeopardy Clause generally protects
against successive prosecutions for the same offense, the dual
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sovereignty exception usually eliminates the double jeopardy bar to
a federal prosecution after a state prosecution. See Heath v.
Alabama, 474 U.S. 82, 89 (1985) (“[T]he Court has uniformly held
that the States are separate sovereigns with respect to the Federal
Government because each State’s power to prosecute is derived from
its own ‘inherent sovereignty,’ not from the Federal Government.”)
(citation omitted); Rinaldi v. United States, 434 U.S. 22, 28
(1977) (“[T]he Constitution does not deny the State and Federal
Governments the power to prosecute for the same act.”).
The only recognized exception to the dual sovereignty doctrine
is the sham prosecution exception, which applies when federal and
state prosecutors have manipulated the system in order to achieve
the equivalent of a second prosecution. This exception requires
proof that Jackson’s federal prosecution was “a sham and a cover”
for a second state prosecution. Bartkus v. Illinois, 359 U.S. 121,
124 (1959). We find no evidence of a sham prosecution; we
therefore find Jackson’s double jeopardy claim is without merit.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We further find Jackson’s claims regarding his armed
career criminal status raised in his pro se supplemental brief
without merit. We therefore affirm Jackson’s conviction and
sentence. This court requires that counsel inform Jackson, in
writing, of his right to petition the Supreme Court of the United
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States for further review. If Jackson requests that a petition be
filed, but counsel believes that such a petition would be
frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Jackson. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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