United States v. Jackson ( 2023 )

Case: 22-10744 Document: 00516653624 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-10744
Summary Calendar
FILED
February 23, 2023
____________
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Deandre Hykeem Jackson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:22-CR-13-1
______________________________
Before Jolly, Oldham, and Wilson, Circuit Judges.
Per Curiam: *
Deandre Hykeem Jackson pleaded guilty to robbery under the Hobbs
Act, in violation of 18 U.S.C. § 1951(a)(1) and was sentenced to 78 months of
imprisonment. He received a consecutive 84-month sentence for his plea of
guilty to brandishing a firearm in furtherance of a crime of violence (COV) in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). Jackson’s Hobbs Act robbery
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-10744 Document: 00516653624 Page: 2 Date Filed: 02/23/2023
No. 22-10744
conviction was the predicate COV for his § 924(c) conviction. Jackson
timely appealed, and he now challenges his § 924(c) conviction and sentence.
The Supreme Court recently held that attempted Hobbs Act robbery
under § 1951(a) is not a COV for purposes of § 924(c). United States v.
Taylor, 142 S. Ct. 2015, 2020 (2022). Citing Mathis v. United States, 579 U.S.
500 (2016), Jackson contends for the first time on appeal that § 1951(a) is
“not divisible as between substantive and attempted robberies.” Proceeding
from the premise that § 1951 is indivisible, he reasons that, because the
Supreme Court has held that attempted Hobbs Act robbery under § 1951(a)
cannot form the predicate COV for a § 924(c) conviction, his own Hobbs Act
robbery under that same statute may not do so. See Mathis, 579 U.S. at 505.
Jackson argues that, if his interpretation of § 1951(a) is correct, there was an
inadequate factual basis to support his plea to the § 924(c) offense. We
review this argument only for plain error. See United States v. Trejo, 610 F.3d
308, 313 (5th Cir. 2010).
Jackson correctly concedes the error he alleges is not clear or obvious
under current law and that he therefore cannot prevail under the plain-error
standard of review. See Puckett v. United States, 556 U.S. 129, 135 (2009);
United States v. Salinas, 480 F.3d 750, 759 (5th Cir. 2007). He raises the issue
here to preserve it for further review in the event of an intervening change in
the law while his case remains on direct appeal. Based on Jackson’s
concession, the Government has moved for summary affirmance. That
motion is DENIED because there is no controlling authority foreclosing
Jackson’s appeal. See United States v. Houston, 625 F.3d 871, 873 n.2 (5th Cir.
2010). However, because Jackson cannot show plain error, we dispense with
further briefing and AFFIRM the judgment of conviction. The
Government’s alternative motion for an extension of time to file a brief is
DENIED as unnecessary.
2