United States v. Jackson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10614
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ARTHUR JACKSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:99-CR-75-2
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October 30, 2001
Before JOLLY, PARKER, and DENNIS, Circuit Judges.
PER CURIAM:*
Arthur Jackson appeals his sentence from a guilty-plea
conviction for a false statement on a loan application and aiding
and abetting in that offense. See 18 U.S.C. §§ 2, 1014. Jackson
argues that the district court erred when it calculated his
sentence based on relevant conduct. He also argues that the
district court abused its discretion when, as an alternative
sentencing basis, it imposed an upward departure under the 1989
version of the Sentencing Guidelines rather than using the
guidelines in effect at the time of sentencing.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 01-10614
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The district court did not err when it calculated Jackson’s
sentence based on relevant conduct. The record supports the
finding that Jackson was aware of and participated in the various
acts outlined in the presentencing report. See United States v.
Anderson, 174 F.3d 515, 524 (5th Cir. 1999)(findings of fact
reviewed for clear error). Moreover, these acts of relevant
conduct were part of the same course of conduct or ongoing scheme
or plan as the offense of conviction. See U.S.S.G. § 1B1.3(a)(2)
(Nov. 1989); Anderson, 174 F.3d at 526. The actions were all
fraudulent banking practices, perpetrated with the aid of the same
accomplice (codefendant Roy Stevens), with the same victim (the
First State Bank of Vega, Texas), and dedicated to the same
purpose. Whether by giving false information on a loan
application, writing bad checks, or creating false wire transfers,
Jackson and Stevens attempted to keep Jackson in business by
circumventing banking laws. They obtained credit for Jackson’s
cattle business that he otherwise would not have been entitled to
and created the false impression that he had sufficient funds to
cover his liabilities.
The district court did not commit plain error when it used the
1989 sentencing guidelines to calculate Jackson’s sentence. This
court has discretion to correct plain errors. United States v.
Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994). An error is plain
if it is clear and obvious, and if it affects a substantial right.
United States v. Olano, 507 U.S. 725, 733 (1993). Although the
1998 sentencing guidelines were in effect when Jackson was
sentenced, the district court did not commit plain error by using
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the 1989 version of the guidelines because that edition was more
beneficial to Jackson. Had the district court used the 1998
version, as Jackson now urges, his offense level would have been 24
rather than 19. Therefore, Jackson’s sentence is AFFIRMED.