United States v. James Jackson ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0259n.06
Case No. 20-6131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
May 27, 2021
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
JAMES JACKSON, )
)
Defendant-Appellant. ) OPINION
)
BEFORE: NORRIS, KETHLEDGE, and NALBANDIAN, Circuit Judges
NALBANDIAN, Circuit Judge. The best that he could, James Jackson turned
the evidence of his crimes into a pile of ashes. But the evidence that remained was
enough to convince a jury that Jackson ran an elaborate scheme of impersonating
deceased victims and then stealing their identities and savings. On appeal, he argues
that the evidence was insufficient for the convictions. He also challenges his sentence
as unreasonable. We AFFIRM the verdicts and the sentence.
BACKGROUND
In late 2014 and early 2015, investigators caught on to an identity theft and
mail fraud scheme in Tennessee involving fraudulent charges on accounts of recently
No. 20-6131, United States v. Jackson
deceased persons.1 The eventual indictment focused on six victims: Robert and Kim
Howe, Thomas Fitzgibbon, Peggye McNair, Charles Fulks, and Michael Almeida.
Kim Howe died in February 2015, predeceased by her husband Robert. After
her death, someone claiming to be Robert called Fidelity Investments, had the Howe’s
account address changed to a vacant house on Cameron Ridge Trail in Cordova,
Tennessee, and liquidated $350,000 in stocks. After Peggye McNair died in January
2015, someone accessed her Amex account and had cards sent to the same vacant
Cameron Ridge address. They charged over $13,700 to her account. Eugenie Almeida
reported fraudulent charges on her deceased husband’s debit card to the police, who
discovered that a recently issued card in Michael Almeida’s name had been used for
cash withdrawals at several Tennessee locations. Security footage showed a man
later identified as Derrick Ford—a friend of James Jackson’s—using the card.2
Yvonne Fitzgibbon likewise reported the theft of her late husband Thomas’ identity.
Government agents intercepted mail addressed to Thomas headed to a vacant
address on Waterdance Drive in a Memphis suburb, nowhere near where Thomas
had lived. As the investigation continued, officers also flagged financial mail headed
1 We state the facts in the light most favorable to the government, in keeping
with the standard of review. United States v. Fisher, 648 F.3d 442, 450 (6th Cir. 2011).
2 Ford also visited a La Quinta Inn in Memphis with a fake ID and tried to
retrieve mail from Capital One addressed to Robert Matthews. He arrived in a white
Mercedes SUV driven by someone else who was not visible in the security footage.
The desk clerk rebuffed his attempt to retrieve the mail after his card was flagged,
and he left.
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to the vacant Waterdance and Cameron Ridge addresses for several more identity
theft victims in addition to Robert and Kim Howe and Peggye McNair.
Investigators zeroed in on the culprit when they put a hold on mail headed to
the vacant houses, which included a Capital One card for Charles Fulks en route to
Waterdance Drive. Less than a month after Fulks’ death, someone claiming to be him
called the post office to ask about the mail.3 Officers planned to arrest him when he
came to pick up the mail, but he later called back and asked the post office to deliver
it to the vacant Cameron Ridge house. So they moved the operation to Cameron
Ridge, delivered the mail, and waited. Around ten o’clock that night, a man in a
bathrobe emerged from Jackson’s house across the street, walked to the vacant
Cameron Ridge house’s mailbox, took the mail addressed to Fulks, and returned to
Jackson’s house.
Officers approached Jackson’s home and knocked on the door, but Jackson
didn’t answer. They knocked louder and announced themselves as police, but there
was no sign of Jackson. After almost an hour, two of the officers finally left to get a
search warrant. While they were gone, the remaining officers saw smoke begin to
billow from the house as an orange glow flickered inside. As smoke filled the house,
Jackson’s girlfriend—Michelle Jones—leaned out a second-floor window and told the
officers that she and her three children were inside and were having trouble
breathing. Jones wanted to leave the house through the front door, but Jackson told
3 At trial, Jones identified caller as Jackson.
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No. 20-6131, United States v. Jackson
her not to. Officers dissuaded her from jumping out the window and persuaded her—
contrary to Jackson’s instructions—to open the front door and leave. The officers then
entered, brought Jackson out of the home, and gave him oxygen.
Inside the smoke-filled house, investigators found ashes in buckets, kitchen
pots, the fireplace, and the toilets. The unburned evidence included an ID and social
security card for someone named Michael Carter, a print-off of search results listing
websites for finding personal information, a book called “How to Find Anyone or
Anything: It’s A Lot Easier Than You Think,” and a legal pad with social security
numbers and other personal identifying information (“PII”) belonging to celebrities.
They also found a Forbes articled called “How to Ruin a Spouse’s Credit Legally and
Keep Them Broke for Dear Life,” a laminator, a partly burned document with part of
a social security number, three computers, two cheap burner phones, and a shredder
containing an envelope for Amanda Montgomery.4 Police never located a bathrobe.
Investigators also searched Jackson’s mother’s house, where they found Jackson’s
business cards. He branded himself as “The Father of Identity Theft” and an “Identity
Theft Expert.”
Officers ran forensic analysis on the computers from Jackson’s bedroom, which
revealed searches on Legacy.com (a source for obituaries), Intelius, BeenVerified,
PeopleFinder, Credit Karma, Ancestry.com, 411.com, and LinkedIn. Many victims
starred in Jackson’s search history, including Charles Fulks, the Almeidas, Thomas
4Jackson also had at the house a yellow corvette, a black Mercedes, and a
white Mercedes SUV resembling the one that dropped Ford off at the hotel.
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Fitzgibbon, the Howes, Peggye McNair, and many others. Although the computer
username logged for all these searches was “Michelle,” Jackson regularly used both
computers.
Along with the evidence above, the government showed at trial that many calls
involved in the identity theft scheme were made using numbers ending in -1609—the
number Jackson used to pose as Fulks in his calls to the post office—or -1935. The
government traced most of these calls to a cell tower directly behind Jackson’s home
on Cameron Ridge Trail, and Jackson’s girlfriend Michelle Jones identified him as
the caller in several of the fraudulent calls when she testified against him at trial.
Jackson was convicted of seven counts of mail fraud under 18 U.S.C. § 1341;
one count of aiding and abetting the use of unauthorized access devices under 18
U.S.C. §§ 2, 1029(a)(2); one count of possession of fifteen or more unauthorized access
devices under 18 U.S.C. § 1029(a)(3); one count of mail theft under 18 U.S.C. § 1708;
and three counts of aggravated identity theft under 18 U.S.C. § 1028A(a)(1).5
At sentencing, the district court applied several enhancements: fourteen levels
because the intended loss exceeded $550,000, §2B1.1(b)(1)(H), two levels because
there were more than ten victims involved, §2B1.1(b)(2)(A)(i), two levels because the
scheme involved sophisticated means, §2b1.1(b)(10)(C), two levels because the
scheme involved a conscious or reckless risk of death or serious bodily injury,
§2B1.1(b)(16)(A), two levels because Jackson was an organizer, leader, manager, or
5 Jackson’s co-defendant Derrick Ford pled guilty to using unauthorized access
devices.
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supervisor in criminal activity, §3B1.1(c), and two levels because Jackson willfully
obstructed or impeded the administration of justice related to the investigation of his
offense, §3C1.1. The district court sentenced Jackson to a within-guidelines sentence
of 135 months plus 24 consecutive months for each count of aggravated identity theft,
for a total of 207 months. 18 U.S.C. § 1028A(a)(1).
Jackson now appeals his convictions and sentence, arguing that the evidence
was insufficient to convict and his sentence was procedurally and substantively
unreasonable.
DISCUSSION
I. Sufficiency of the Evidence
We review a sufficiency-of-the-evidence challenge de novo and affirm if,
“viewing the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Fisher, 648 F.3d at 450 (emphasis in original) (quoting Jackson v. Virginia,
443 U.S. 307, 319 (1979)). We do not “reweigh the evidence, re-evaluate the credibility
of witnesses, or substitute our judgment for that of the jury.” Id. (quoting Brown v.
Konteh, 567 F.3d 191, 205 (6th Cir. 2009)). “Substantial and competent
circumstantial evidence by itself may support a verdict and need not remove every
reasonable hypothesis except that of guilt.” United States v. Lee, 359 F.3d 412, 418
(6th Cir. 2004) (quotation marks and citation removed). We view the evidence not “in
a vacuum” but “in relation to the other evidence in the case.” Davis v. Lafler, 658 F.3d
525, 533 (6th Cir. 2011).
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A. Mail Fraud and Mail Theft
Jackson first argues that no reasonable jury could have found him guilty of
mail fraud and mail theft. Mail fraud requires 1) “a scheme or artifice to defraud”; 2)
“use of mails in furtherance of the scheme”; 3) “intent to deprive the victim of money
or property”; and 4) material misrepresentation. United States v. McAuliffe, 490 F.3d
526, 531 (6th Cir. 2007); 18 U.S.C. § 1341. The elements of mail theft are that “(1) the
defendant possessed material stolen from the mail; (2) knowing same to be stolen; (3)
with intent to possess the material unlawfully.” United States v. Comer, 93 F.3d 1271,
1276 (6th Cir. 1996) (quotation marks and citation removed); 18 U.S.C. § 1708.
Jackson does not dispute that the activity the government alleges meets these
elements; he only argues that the government has not proven that he did what it
alleges. So we focus on the ways he argues that the evidence is insufficient to tie him
to the criminal acts. We find that the evidence presented at trial was enough for a
rational jury to find him guilty on these counts.
Jackson begins by arguing that officers never found any relevant mail, the
distinctive robe that the mail thief wore, or the cell phones at issue in the Cameron
Ridge Trail house. This argument lacks force because of the obvious reply that
Jackson anticipates: the ashes in the house likely contained much of the physical
evidence. The fragments of evidence that remained support this inference; the
shredder in the house had an envelope to Amanda Montgomery—who formerly lived
in the now-vacant Cameron Ridge house—and utility bills tying Jackson to the house
filled with smoldering papers. Near the fireplace, officers also found burnt paper
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No. 20-6131, United States v. Jackson
fragments with part of a Social Security number and the issuing state. In Jackson’s
bedroom, officers found a Tennessee ID card and Social Security card in Michael
Carter’s name as well as a Georgia Motor Vehicle Department receipt and
registration in Phillip Landis Burnett’s name. A rational jury could conclude that the
reason the police did not find more evidence of identity theft in the house was that
Jackson burned it. And a rational jury could infer from Jackson’s destruction of
evidence that Jackson was conscious of his guilt. See Cyars v. Hofbauer, 383 F.3d 485,
492 (6th Cir. 2004) (holding that a reasonable jury could infer guilt from a collection
of evidence that included “discard[ing] the murder weapon and drugs in a manner
sufficient to prevent authorities from recovering the evidence”); United States v.
Poulsen, 655 F.3d 492, 508 (6th Cir. 2011) (“Our courts admit ‘spoliation evidence,
including evidence that a defendant attempted to bribe . . . a witness,’ because such
spoliation evidence shows ‘consciousness of guilt.’”) (alteration in original) (quoting
United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986).
Jackson’s suggestion that he was not the person who stole the last piece of mail
and burnt all the evidence is equally unpersuasive. An officer testified that a black
male walked from Jackson’s Cameron Ridge house to the vacant house’s mailbox, took
the mail, and walked back. He identified the person as Jackson. And no other adult
male was at the house that night. Jackson refused to answer the door as police
knocked “very loudly” right after the mail theft. And he instructed Jones not to open
the front door, even as the house filled with smoke. Afterward, he persuaded Jones
to marry him, hoping that she would not have to testify against him if they were wed.
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The jury could infer that Jackson stole the mail and then tried to destroy evidence of
his guilt by burning incriminating materials.
Jackson also argues that the government never tied him to any of the addresses
where the stolen mail went. That’s not true. The transaction confirmation for the sale
of the Howes’ stocks—although it was gone by the time the officer’s searched—went
to the same vacant Cameron Ridge address from which Jackson stole the last piece
of mail. The government also showed that some victims had mail sent to both the
Waterdance address and to the Cameron Ridge address. A witness also testified that
some of the victims’ mail went first to a Turco Drive address before switching to
Waterdance. All three houses were vacant. A reasonable jury could infer that Jackson
had used these addresses as drop locations for mail fraud and theft, and those
addresses cover all but one of Jackson’s mail fraud victims.
The jury heard other evidence from which it could conclude that Jackson was
the perpetrator of the mail fraud, including recorded phone calls made to the victims’
financial institutions. After hearing the tapes played in open court, Jones identified
the caller in both fraudulent Almeida calls as Jackson. She also identified him as the
voice on several other fraudulent calls. The government also showed that Jackson’s
computer had logged many searches of the victims and their personal information,
including searches for Eugenie Almeida’s birthday and information about Michael
Almeida. Although the username logged for these searches was “Michelle,” the jury
could conclude that the username did not reflect the person who ran the searches
because it is not a verified record of who was using the computer at the time.
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No. 20-6131, United States v. Jackson
Jackson argues that the government never tied him to the phone number that
called the Cordova Post Office about Fulks’s stolen mail. But the government
presented evidence that many of the fraudulent calls, including those to the post
office, came from an area that included Jackson’s home. And when the government
played a recording of the Cordova Post Office call, Jones identified the caller as
Jackson. Taken together, the evidence at trial was enough to allow a rational jury to
conclude that Jackson did the acts that the government alleged.
B. Aiding and Abetting Fraud in Connection with Access Devices
The jury also convicted Jackson of aiding and abetting access device fraud
which covers anyone who “knowingly and with intent to defraud traffics in or uses
one or more unauthorized access devices during any one-year period, and by such
conduct obtains anything of value aggregating $1,000 or more during that period.” 18
U.S.C. § 1029(a)(2). Access devices include cards, account numbers, or other means
of account access, and an “unauthorized” access device is “any access device that is
lost, stolen, expired, revoked, canceled, or obtained with intent to defraud.” 18 U.S.C.
§ 1029(e)(1), (e)(3). “As at common law, a person is liable under [18 U.S.C.] § 2 for
aiding and abetting a crime if (and only if) he (1) takes an affirmative act in
furtherance of that offense, (2) with the intent of facilitating the offense’s
commission.” Rosemond v. United States, 572 U.S. 65, 71 (2014).
This conviction stands if there is sufficient evidence for a rational jury to
conclude that Jackson helped obtain and use credit cards with Derrick Ford. A police
officer testified that he had photos of Derrick Ford using different victims’ credit
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No. 20-6131, United States v. Jackson
cards—including Michael Almeida’s—at Kroger. And as we detail above, the jury
could reasonably conclude that Jackson was part of the mail fraud that involved
getting a replacement debit card tied to the Almeidas’ account. Jackson and Ford
stole $56,909.43 from the Almeidas. This fraud alone suffices to support the jury’s
verdict on this count.
C. Possession of At Least Fifteen Unauthorized Access Devices
The jury convicted Jackson of violating 18 U.S.C. § 1029(a)(3) by “knowingly
and with intent to defraud,” possessing at least fifteen “counterfeit or unauthorized
access devices.” Jackson does not contest that social security numbers are access
devices. See United States v. Wright, 862 F.3d 1265, 1275 (11th Cir. 2017); United
States v. Gilmore, 431 F. App’x 428, 429 (6th Cir. 2011) (counting social security
numbers among access devices). Instead, he argues that the government did not prove
either his fraudulent intent or that he possessed the access devices at the same time.
On the intent to defraud, the jury was free to conclude that Jackson had
fraudulent intent based on “circumstantial evidence and by inferences drawn from
examining the scheme itself.” United States v. Winkle, 477 F.3d 407, 413 (6th Cir.
2007). Whether Jackson had the intent to defraud “is generally considered to be one
of fact to be resolved by the trier of the facts and the determination thereof should
not be lightly overturned.” Id. (ellipses, quotation marks, and citation removed). The
jury heard that officers recovered a yellow notepad filled with names and social
security numbers in Jackson’s kitchen. They also found that Jackson was involved in
identity theft with other people’s social security numbers and personal information.
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No. 20-6131, United States v. Jackson
The jury could reasonably conclude that Jackson possessed the social security
numbers for fraudulent purposes. Jackson argues that his business card identifying
him as an identity theft expert provided a better explanation for his possession of the
social security numbers. Although this may seem like a plausible explanation to
Jackson, it did not appear so to the jury. And the evidence taken in the light most
favorable to the government supports their conclusion.
Jackson’s other argument that he did not possess all the access devises at once
has no merit. The statute does not require that all fifteen access devices be obtained
at the same time. Jackson only had to possess all fifteen at one time, which he did—
all on the same notepad.
D. Aggravated Identity Theft
Aggravated identity theft includes committing a predicate felony, which
“during and in relation to” the defendant “knowingly transfers, possesses, or uses,
without lawful authority, a means of identification of another person.” 18 U.S.C.
§ 1028A(a)(1). There are four elements: “(1) the defendant committed a specified
predicate felony; (2) the defendant knowingly transferred, possessed, or used a means
of identification of another person without lawful authority; (3) the defendant knew
that the means of identification belonged to another person; and (4) the transfer,
possession, or use was during and in relation to the predicate felony.” United States
v. Gandy, 926 F.3d 248, 258 (6th Cir. 2019). Mail fraud is a predicate felony. 18 U.S.C.
§ 1028A(c)(5); 18 U.S.C. § 1341. The jury convicted Jackson of aggravated identity
theft of the Almeida’s bank account and social security number; Peggye McNair’s
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No. 20-6131, United States v. Jackson
name, date of birth, mother’s maiden name, middle name, and name of bank for bill
pay; and Robert Howe’s name, social security number, and brokerage account
number.
For the Almeidas, Jackson argues that the only evidence was that Ford used
the debit card and that Jackson’s computer logged a search for Mrs. Almeida’s
birthday. He admits that Jones identified the fraudulent Almeida caller as Jackson,
but he urges that the jury should not have believed her because she was biased. But
Jones’ credibility was a question for the jury, not for us to second-guess on appeal.
“[A]ttacks on witness credibility are simply challenges to the quality of the
government’s evidence and not to the sufficiency of the evidence.” United States v.
Carter, 355 F.3d 920, 925 (6th Cir. 2004) (emphasis in original) (quotation marks and
citation removed). For this reason and the reasons we have already discussed, this
argument lacks merit.
For Peggye McNair, Jackson argues that the evidence was insufficient because
no evidence linked Jackson to the vacant Cameron Ridge address, the computer
searches for McNair’s personal information, or the phone number used for fraudulent
calls in McNair’s name. Each of these arguments is meritless. An officer testified that
he saw Jackson steal mail from the vacant Cameron Ridge address. Jackson had
access to the computer that made the searches, and Jones testified that he used the
computers in his bedroom home office. And the phone number that made the
fraudulent calls also had ties to the cell tower immediately adjacent Jackson’s home.
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No. 20-6131, United States v. Jackson
Jackson’s claim that no evidence supports this conviction ignores much of the trial
record.
Finally, for Robert Howe, Jackson repeats that the mail addressed to the
vacant Cameron Ridge address is irrelevant because Jackson has no ties to that
address, and he again argues that no mail addressed to any victims was found in
Jackson’s (ash-filled) home. He also repeats that the computer searches and the
phone calls coming from the area immediately around his house were not persuasive
evidence. We need not repeat the responses to these arguments. The record does not,
as Jackson asserts, show a case “devoid of evidence” of Jackson’s guilt. (Appellant’s
Br. at 44.) Instead, it shows evidence that a reasonable jury could weigh in
determining that Jackson committed the crimes charged beyond a reasonable doubt.
Disagreement with how the jury weighed the evidence is different from having a
record devoid of evidence.
In sum, the evidence taken in the light most favorable to the government would
allow a jury to convict Jackson on all counts. We affirm the convictions.
II. Sentence Enhancements
While Jackson presents his next claims as challenging both the procedural and
substantive reasonableness of his sentence, his arguments go only to whether the
district court correctly applied sentencing enhancements. Misinterpretation of a
guideline would yield a procedurally unreasonable sentence. United States v.
Riccardi, 989 F.3d 476, 481 (6th Cir. 2021). We “accept the findings of fact of the
district court unless they are clearly erroneous” and generally “give due deference to
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No. 20-6131, United States v. Jackson
the district court’s application of the guidelines to the facts.” 18 U.S.C. § 3742(e);
United States v. Abdalla, 972 F.3d 838, 850 (6th Cir. 2020), cert. denied, 141 S. Ct.
1250 (2021).
A. Loss Amount Enhancement
Jackson claims that the district court unreasonably calculated the loss amount
and wrongly applied the fourteen-level enhancement for loss over $550,000. On
appeal, Jackson details his arguments against the enhancement in a table, where he
points out amounts that he does not believe should have been included. We review
the court’s determination of the amount of loss for clear error, but we review the
method of calculating the loss and interpretation of the guidelines de novo. Riccardi,
989 F.3d at 481.
If we add together the amounts that Jackson does not dispute, he should still
receive the fourteen-level enhancement. Of the twenty-six entries, Jackson marked
eleven as having no issue. Those add up to $882,036.98—well above the $550,000
threshold.6 U.S.S.G. § 2B1.1(b)(1)(H). By Jackson’s own estimate, the district court
was not unreasonable in applying the fourteen-level enhancement.
B. Number-of-Victims Enhancement
The district court applied a two-level enhancement because Jackson’s crime
involved ten or more victims. U.S.S.G. § 2B1.1(b)(2)(A)(i). Jackson argues that the
government did not prove that there were at least ten victims because anyone who
6 This includes the higher of the actual or intended loss listed on any line to
which Jackson did not object, the lower of the two numbers if Jackson objected to the
higher number, and no amounts from the lines that Jackson object to altogether.
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was quickly reimbursed is not a “victim.” “Whether a person is a victim under the
Sentencing Guidelines is a legal conclusion that appellate courts review de novo.”
United States v. Stubblefield, 682 F.3d 502, 510 (6th Cir. 2012) (cleaned up).
Victims include both those suffering “actual loss”—including “individuals,
corporations, companies, associations, firms, partnerships, societies, and joint stock
companies”—and “any individual whose means of identification was used unlawfully
or without authority.” U.S.S.G. § 2B1.1(b)(2)(A)(i), cmt. n.1, n.4(E). Jackson only
argues that some victims the district court factored in did not lose money. He does
not dispute that the individuals the district court named were victims of the second
kind, those whose means of identification Jackson used unlawfully: the Almeidas,
Ballinger, Best, Dulin, Fulks, Fitzgibbon, Hill, the Howes, Hughes, Jackson, King,
Lambert, McNair, Olschwanger, the Rudolphs, and Silva. Jackson victimized more
than ten people.
C. Sophisticated Means Enhancement
The district court applied a two-level enhancement because Jackson’s scheme
“involved sophisticated means.” U.S.S.G. 2B1.1(b)(10). The commentary adds that
“especially complex or especially intricate offense conduct pertaining to the execution
or concealment of an offense” invokes this enhancement, including “hiding assets or
transactions, or both, through the use of fictitious entities, corporate shells, or
offshore financial accounts.” Id. at cmt. n.9(B). This is a factual finding that we review
for clear error. United States v. Igboba, 964 F.3d 501, 510 (6th Cir. 2020). Jackson
argues that his scheme was not sophisticated because he only used the internet and
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a telephone. We do not look at the elements of a scheme “in isolation”; we account for
the strategy as a whole. United States v. Tandon, 111 F.3d 482, 491 (6th Cir. 1997).
Jackson’s scheme was sophisticated. “[T]he repeated use of fictitious identities
can justify a sophisticated means enhancement, particularly when the identity is
reinforced through other deceptive practices . . . .” United States v. Crosgrove, 637
F.3d 646, 667 (6th Cir. 2011). Jackson used multiple mailing addresses—none of
which were his own—to avoid detection. See Igboba, 964 F.3d at 512. Jackson used
multiple websites to collect data on recently deceased victims so that he could contact
the banks soon after the victims’ deaths. He also used multiple phone numbers to
conceal his identity, and he impersonated his victims over the phone. The district
court did not clearly err in finding that Jackson’s scheme was sophisticated.
D. Leadership Enhancement
The district court applied a two-level enhancement for being a “organizer,
leader, manager, or supervisor” of criminal activity. U.S.S.G. § 3B1.1(c). We review
this determination deferentially. United States v. Washington, 715 F.3d 975, 983 (6th
Cir. 2013). Jackson argues that this enhancement was inappropriate because no
evidence tied him to Ford’s fraudulent acts.
Jackson again misstates the record. But because this argument is the same as
his objection to the conviction for aiding and abetting fraud, we need not rehash the
evidence we discussed above in Section I.B. The district court did not err in applying
this enhancement.
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E. Risk of Injury Enhancement
The district court applied a two-level enhancement for involving “the conscious
or reckless risk of death or serious bodily injury.” U.S.S.G. § 2B1.1(b)(16)(A).
“Because the question of what constitutes endangerment is a mixed question of law
and fact that is highly fact-based, we give significant deference to the district court.”
United States v. Stafford, 721 F.3d 380, 401 (6th Cir. 2013) (cleaned up). Jackson
argues that the enhancement was improper because he did not perceive the risk he
was creating and because no serious bodily injury resulted from his action.
Jackson’s argument that he did not realize a risk to the people inside the
smoke-filled house rings hollow. Assuming that awareness of risk is necessary for
recklessness, there is still enough evidence to conclude that Jackson knew he was
creating a risk to Jones and the children. Jones testified that she told Jackson that
she and the children needed to exit the smoke-filled house, and he responded by
telling them to stay inside. And the district court noted that Jackson himself needed
oxygen after exiting the house. His own experience of oxygen deprivation would have
triggered an awareness that his actions were dangerous, even if he were
astonishingly unaware of that fact when he began burning the papers. The district
court did not err in applying this enhancement.
F. Obstruction of Justice Enhancement
Finally, the district court applied a two-step enhancement for obstruction of
justice. U.S.S.G. § 3C1.1. For this enhancement, we review the district court’s factual
determinations for clear error, its “determination that certain conduct constitutes
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obstruction of justice” de novo, and “the application of the obstruction enhancement”
de novo. United States v. Baggett, 342 F.3d 536, 540–41 (6th Cir. 2003). Jackson
argues that this enhancement is improper because the government did not present
enough evidence that the documents Jackson burnt were material evidence. We
already addressed this argument in Section I.A. The jury could reasonably conclude
that Jackson was burning evidence from the circumstances and from the fragments
of evidence that remained, despite Jackson’s best efforts.
CONCLUSION
For these reasons, we AFFIRM the district court.
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