United States v. Andre Jackson

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 04-3643
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Andre Jackson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: June 7, 2005
Filed: July 14, 2005
___________
Before BYE, RILEY, and COLLOTON, Circuit Judges.
___________
PER CURIAM.
Andre Jackson appeals the 240-month statutory minimum sentence that the
district court1 imposed after his plea of guilty to possessing with intent to distribute
50 grams or more of a cocaine-base mixture after a prior conviction for a felony drug
offense. See 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 851. Jackson argues that the district
court erred by assessing one criminal history point each for two prior dispositions of
court supervision in Cook County, Illinois, thereby making him ineligible for “safety-
valve” relief from the mandatory minimum, see U.S.S.G. § 5C1.2(a)(1) (defendant
1
The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa.
must have no more than 1 criminal history point). He further argues, citing United
States v. Booker, 125 S. Ct. 738 (2005), that the district court improperly relied upon
the then-mandatory guidelines to determine whether the prior dispositions should be
assessed criminal history points.
The district court did not err in assigning criminal history points for the
disputed dispositions, as each was analogous to a diversionary disposition following
a plea or finding of guilt. See U.S.S.G. §§ 4A1.2(a)(1) (“prior sentence” means any
sentence previously imposed upon adjudication of guilt), 4A1.2(f) (diversion from
judicial process without finding of guilt is not counted; diversionary disposition
resulting from finding or admission of guilt in judicial proceeding is counted as
sentence under § 4A1.1(c) even if conviction is not formally entered); 730 Ill. Comp.
Stat. Ann. 5/5-6-1(c) (West 2002) (court may defer further proceedings and
imposition of sentence and order supervision upon guilty plea, stipulation to facts
supporting charge, or finding of guilt); United States v. Morgan, 390 F.3d 1072, 1074
(8th Cir. 2004) (federal law, not state law, determines whether prior sentence is
counted for criminal history purposes); United States v. Holland, 195 F.3d 415, 416
(8th Cir. 1999) (standard of review); United States v. Burke, 148 F.3d 832, 839-40
(7th Cir. 1998) (dismissal of case after successful completion of court supervision
under Illinois law is not due to innocence, but for purposes of removing stigma
associated with criminal conviction and restoring civil rights; defendant is no less
guilty of offense after completing court supervision than he was when found guilty,
whether or not Illinois still considers him a misdemeanant).
Jackson did not preserve his Booker claim in the district court, and we find no
plain error. See United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc)
(requirements for preserving Booker error; plain-error standard of review); United
States v. Rojas-Coria, 401 F.3d 871, 873-74 & n.4 (8th Cir. 2005) (where defendant
challenged district court’s finding as to completeness of safety-valve proffer, Booker
had no impact because defendant’s sentence was based on statutory mandatory
-2-
minimum, not application of guidelines); cf. Booker, 125 S. Ct. at 756 (proscribing
only judicial factfinding that increases sentence beyond maximum authorized by jury
verdict or admission); Almendarez-Torres v. United States, 523 U.S. 224, 243-44
(1998) (prior criminal history is sentencing factor for court to decide, not fact issue
for jury to decide).
Accordingly, we affirm.
______________________________
-3-