United States v. Andre W. Jackson ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 19, 2019
Decided August 19, 2019
Before
FRANK H. EASTERBROOK, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17-2727
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:15-cr-00013-WTL-CMM
ANDRE W. JACKSON, William T. Lawrence,
Defendant-Appellant. Judge.
ORDER
Police responding to a 9-1-1 call came upon a man who had been shot in the leg,
and they later found shotgun shells in Andre Jackson’s yard. Jackson, a convicted felon,
admitted that he had fired the weapon. A jury found Jackson guilty of being a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and a district judge sentenced him to
210 months in prison (the bottom of the applicable Sentencing Guidelines range).
Jackson appealed, but his appointed counsel asserts that the appeal is frivolous, and she
moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Jackson counters that
there are nonfrivolous grounds for an appeal. See CIR. R. 51(b). Counsel explains the
nature of the case and the issues that the appeal likely would involve. Her analysis
No. 17-2727 Page 2
appears thorough, so we limit our review to the topics that she and Jackson discuss.
See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).
Counsel first considers arguing that the district judge violated Federal Rule of
Evidence 404(b)’s prohibition on propensity evidence when he admitted evidence that
Jackson fired a shotgun. Federal Rule of Evidence 404(b)(1) bars evidence of other acts
to show the defendant’s tendency to behave in a certain way, but the same evidence
“may be admissible for another purpose,” FED R. EVID. 404(b)(2). Jackson, however, was
charged with illegally possessing a “firearm” (defined as “any weapon … which will or
is designed to or may readily be converted to expel a projectile by the action of an
explosive,” 18 U.S.C. § 921(a)(3)), and he never offered to stipulate that the shotgun
indeed was a firearm, so testimony that he fired the shotgun is “direct evidence” that
the gun fell within the statutory definition. See United States v. Carson, 870 F.3d 584,
599–600 (7th Cir. 2017). Counsel thus properly rejects this argument.
Counsel next considers whether Jackson might raise three arguments relating to
pretrial matters and properly concludes that, even if not waived, they are frivolous.
First, counsel asks whether Jackson could challenge the search of his residence on
grounds that his wife consented to the search under duress (threat of arrest). Yet there is
no evidence of duress, and a third party with common authority over the space may
consent to a search. See United States v. Matlock, 415 U.S. 164, 171 (1974); United States v.
Witzlib, 796 F.3d 799, 801–02 (7th Cir. 2015). Second, counsel discusses whether Jackson
could argue that his videotaped confession was coerced, as he was intoxicated during
the police interview. True, “[w]hen the interrogating officers reasonably should have
known that a suspect is under the influence of drugs or alcohol, a lesser quantum of
coercion may be sufficient to call into question the voluntariness of the confession.”
United States v. LeShore, 543 F.3d 935, 940–41 (7th Cir. 2008) (quoting United States v.
Haddon, 927 F.2d 942, 946 (7th Cir.1991)). But one officer testified that Jackson did not
appear impaired and another opined that Jackson “was more than able to take care of
himself.” Moreover, intoxication alone does not make a confession involuntary, United
States v. Walker, 272 F.3d 407, 413 (7th Cir. 2001), and counsel does not point to other
evidence of coercion. Third, counsel asks whether Jackson could attack his indictment
on grounds that his wife testified before the grand jury, violating his spousal
testimonial privilege. That privilege, however, belongs only to his wife, as the
defendant’s spouse, so he cannot assert it. See United States v. Brock, 724 F.3d 817, 823
(7th Cir. 2013).
No. 17-2727 Page 3
Counsel then turns to Jackson’s conviction and considers three more challenges
that she correctly decides would be frivolous. First, she (and Jackson) considers whether
Jackson could challenge the denial of his motion for a mistrial after a government
witness violated the judge’s in limine ruling by mentioning the shooting victim. But the
witness’s statement was “inadvertent, isolated, and ambiguous,” United States v. Long,
748 F.3d 322, 328 (7th Cir. 2014), and the judge offered to provide a curative instruction
that could have reduced the likelihood of prejudice, see United States v. Curry, 538 F.3d
718, 728 (7th Cir. 2008). Second, counsel considers challenging the relevance of satellite
images of Jackson’s home, which the judge admitted as evidence. But a judge does not
abuse his discretion when admitting such evidence if, like here, a witness subject to
cross examination testified that the images accurately depict the scene on the date in
question. See United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014). Third, counsel
considers challenging the competency of a witness who was taking anxiety medication
on the date of his testimony. But counsel rightly rejects this as challenge as frivolous
because there was no evidence that the medication impaired the witness’s ability to
testify. See FED. R. EVID. 601; United States v. Terzakis, 854 F.3d 951, 957 (7th Cir. 2017).
Counsel also asks whether Jackson could attack the judge’s denial of his motion
for a judgment of acquittal, but she correctly determines that the attack would be futile.
There are four elements to the charged offense: (1) status, (2) possession, (3) jurisdiction
(“in or affecting commerce”), and (4) a firearm. See 18 U.S.C. § 922(g); Rehaif v. United
States, 139 S. Ct. 2191, 2195–96 (2019). The government provided ample evidence in
support of the verdict. See FED. R. CRIM. P. 29; United States v. Cherry, 920 F.3d 1126, 1133
(7th Cir. 2019). First, Jackson stipulated that he was a felon. Second, he admitted that he
possessed a shotgun and three witnesses saw him holding something that looked like a
shotgun. Third, a witness testified that the shotgun came from another state. Fourth,
Jackson admitted to firing the shotgun and police found a shotgun and shells outside
his home.
Both counsel and Jackson next consider arguing that the judge wrongly found
him to be an armed career criminal based on three prior convictions for violent felonies,
18 U.S.C. § 924(e). Counsel, however, properly rejects the argument as frivolous because
Jackson has at least three such convictions: Illinois residential burglary in 1990,
see United States v. Stitt, 139 S. Ct. 399, 406 (2018); Smith v. United States, 877 F.3d 720, 725
(7th Cir. 2017); Illinois robbery in 1993, see Klikno v. United States, 928 F.3d 539, 548
(7th Cir. 2019); Illinois aggravated vehicular hijacking in 1998, see United States v. Sykes,
914 F.3d 615, 619–20 (8th Cir. 2019) (citing People v. Jackson, 2016 IL App (1st) 133823,
¶ 50 (“[V]ehicular hijacking could be fairly described … as robbery of … a motor
No. 17-2727 Page 4
vehicle.”)); and Indiana robbery in 2010, see United States v. Duncan, 833 F.3d 751, 758
(7th Cir. 2016).
Counsel next queries whether the judge wrongly assigned him three criminal
history points based on a reference in the presentence investigation report to an Illinois
attempted burglary conviction that Jackson denies committing. But counsel aptly
determines that it would be frivolous to press the matter. The judge reviewed the
indictment and judgment for that offense and observed that someone named Andre
Jackson who shared Jackson’s birthday committed it, and Jackson’s bare denial that he
committed a previous offense is not enough to doubt that conclusion. See United States v.
Heckel, 570 F.3d 791, 796 (7th Cir. 2009).
Counsel also assesses whether she could nonfrivoulously attack the
reasonableness of the 210-month sentence, and rightly concludes she could not. We
would presume the sentence to be reasonable because it falls within the calculated
Guidelines range of 210 to 262 months (based on an offense level of 33 and a criminal
history category of V, see U.S.S.G. Ch. 5 Pt. A (sentencing table)). See Rita v. United
States, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir.
2005). Moreover, the judge in this case reasonably considered the statutory sentencing
factors, 18 U.S.C. § 3553(a), emphasizing Jackson’s history and characteristics, including
his upbringing (he had an abusive adoptive mother, was “raised on the streets” of a
“crime infested” neighborhood, and left home at age 15), his health (“many” physical
and mental health challenges), his drug use (alcohol and cocaine dependence), his age
(57 years old at sentencing), and his criminal history (“excessive and extensive”).
Finally, counsel considers whether Jackson could argue that his trial attorney
provided ineffective assistance, but she properly concludes that the challenge should be
reserved for a collateral action, so that Jackson could develop a fuller record. See 28
U.S.C. § 2255; Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Flores,
739 F.3d 337, 340–41 (7th Cir. 2014).
We GRANT counsel’s motion to withdraw and DISMISS the appeal.