United States v. Jackson , 216 F. App'x 373 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4556
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DOROTHY MARIE JACKSON, a/k/a Dorothy Winston,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, District Judge. (8:02-
cr-00478-PJM)
Submitted: January 3, 2007 Decided: February 7, 2007
Before MICHAEL, TRAXLER, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Fred Warren Bennett, BENNETT & BAIR, L.L.P., Greenbelt, Maryland,
for Appellant. Rod J. Rosenstein, United States Attorney, Deborah
A. Johnston, Michele W. Sartori, Assistant United States Attorneys,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dorothy Marie Jackson appeals her sentence imposed after
resentencing,1 on her conviction by a jury on all counts of a
fifteen-count third superseding indictment charging one count of a
narcotics conspiracy, in violation of 21 U.S.C. § 846 (2000) and 18
U.S.C. § 2 (2000); seven counts of unlawfully acquiring controlled
substances by fraud, in violation of 21 U.S.C. § 843(a) (2000) and
18 U.S.C. § 2 (2000); and seven counts of possession with intent to
distribute controlled substances, in violation of 18 U.S.C. § 841(2000) and 18 U.S.C. § 2 (2000). The evidence presented at the
1
This court previously affirmed Jackson’s conviction, but
remanded her case to the district court for resentencing in
accordance with United States v. Booker, 543 U.S. 220 (2005), which
case was decided after Jackson’s original sentencing hearing. See
United States v. Jackson, No. 05-4006 (4th Cir. Feb. 22, 2006)
(unpublished). In her original appeal, Jackson claimed a
constitutional Booker error based on the district court’s reliance
on its own finding by a preponderance of the evidence that Jackson
was a USSG § 3B1.1(a) “leader or organizer” (and not, as the jury
found, a USSG § 3B1.1(b) “manager or supervisor”), as well as a
statutory Booker error because the district court treated the
Sentencing Guidelines as mandatory, not advisory. Citing United
States v. Hughes, 401 F.3d 540, 547 (4th Cir. 2005), this court
rejected Jackson’s claim of constitutional Booker error, finding
that her argument misconstrued Booker’s constitutional analysis,
which focuses on the actual sentence imposed, not on the offense
level used in computing the Guidelines sentence, and determining
that because Jackson’s actual sentence of 188 months for the
conspiracy count fell short of the 210-month maximum that the
district court could have imposed based solely on the jury’s
determinations, there was no constitutional Booker error. This
court ordered resentencing because the district court applied the
Sentencing Guidelines in a mandatory, rather than advisory,
fashion. See United States v. Jackson, No. 05-4006 (4th Cir. Feb.
22, 2006) (unpublished).
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jury trial established that Jackson participated in a conspiracy to
distribute prescription painkillers.
Upon resentencing, the district court again determined
Jackson’s base offense level to be 32, both as found by the jury
and the court. The district court further determined, for the
second time and contrary to the finding of the jury, that Jackson
was a leader or organizer and thus added four levels to her offense
level under the Guidelines, instead of three levels, which would
have corresponded to the jury’s finding that she was a manager or
supervisor. The additional four levels brought Jackson to an
offense level of 36, which, with a criminal history category of I,
resulted in a guidelines range of 188 to 235 months’ imprisonment.2
The district court then heard argument with regard to the 18 U.S.C.
§ 3553 (West 2000 & Supp. 2005) factors, and specifically discussed
the need in this case to avoid unwarranted disparities among co-
defendants.
The district court sentenced Jackson to 144 months’
imprisonment on count one, a concurrent twelve-month term of
imprisonment on count two, concurrent 144-month terms on counts 3,
5, 7, 9, 11, 13, and 15, and concurrent twelve-month terms on
counts 4, 6, 8, 10, 12, and 14. The district court further ordered
Jackson to be placed on supervised release for three years on
2
Had Jackson’s base offense level been increased by only three
levels under the jury’s “manager or supervisor” finding, the range
would have been 168 to 210 months.
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counts 1, 3, 5, 7, 9, 11, 13, and 15, and for one year on counts 2,
4, 6, 8, 10, 12, and 14, all to run concurrently to one another.
Jackson again appeals, now asserting district court error
in resentencing relative to her Fifth Amendment rights, claiming
that post-Booker, the Fifth Amendment requires that facts relied
upon in sentencing be found by proof beyond a reasonable doubt,
rather than by a preponderance of the evidence. Jackson further
asserts that the district court was not free to reject the jury’s
finding relative to her role in the offense because of the “unique
circumstances” of this case, i.e. because the Government requested
a jury finding on this issue, on fairness grounds, the district
judge should not now be permitted to reject that finding. She also
contends that her sentence was not reasonable, based on the
district court’s findings relative to her role in the offense by a
preponderance of the evidence.
Jackson first challenges the district court’s application
of a preponderance of the evidence standard of proof in
resentencing. This assertion is without merit. See generally,
United States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)
(“Consistent with the remedial scheme set forth in Booker, a
district court shall first calculate (after making the appropriate
findings of fact) the range prescribed by the guidelines.”); see
also United States v. Gonzalez, 407 F.3d 118, 125 (2d Cir. 2005);
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McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005);
United States v. Tabor, 439 F.3d 826, 830 (8th Cir. 2006).
Jackson also challenges the district court’s four-level
role in the offense enhancement of her sentence on fairness and
reasonableness grounds.3 Our review of the sentencing transcript
in this case reveals that the district judge clearly and accurately
applied its statutory and legal obligations in resentencing
Jackson, considered the arguments of counsel, and decided that its
original findings relative to Jackson’s role in the offense did not
need to be altered.
We will affirm a post-Booker sentence if it is both
reasonable and within the statutorily prescribed range. United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005). As Jackson’s
sentence is within the properly calculated advisory guideline
range, we find it to be presumptively reasonable, see United States
v. Green, 436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct.
3Jackson makes no claim or assertion that the district court’s
factual finding that she was a leader or organizer in the
conspiracy was unsupported by the evidence or the product of clear
error, see United States v. Ebersole, 411 F.3d 517, 536 (4th Cir.
2005) (standard of review), cert. denied, 126 S. Ct. 1142 (2006),
and, indeed, she states on appeal that she is not complaining that
the district court’s findings relative to her role in the offense
were unsupported by the evidence or the product of clear error.
Rather, her complaint is that the court decided the issue
differently than the jury, based upon a different standard, and
that the Government should not be allowed to take an inconsistent
position in the matter, i.e. because it requested a jury finding on
the issue of Jackson’s role, it should be bound by that finding
now.
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2309 (2006), and we find nothing in Jackson’s assertions on appeal
sufficient to overcome that presumption. Moreover, Jackson’s
ultimate sentence on remand was below both the advisory range
triggered by the four-level enhancement found by the district
court, and two years below the bottom of the advisory guideline
range the district court could have imposed based solely upon the
jury’s determinations with regard to Jackson’s role in the offense,
and far less than the maximum sentence authorized by the jury’s
findings. Finally, Jackson’s assertion that the error was not
harmless because even though the district court sentenced her well
below even the guideline range applicable to the jury’s findings,
her sentence “may very well have been lower had the court started
from the appropriate Guidelines range” is sheer speculation and
thus insufficient to support her request for resentencing.
Jackson has failed to demonstrate error by the district
court in resentencing. Upon resentencing, the district court
appropriately treated the guidelines as advisory, and properly
calculated and considered the advisory guideline range and the
relevant statutory factors. Accordingly, we affirm Jackson’s
sentence. 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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