United States v. James Jackson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30147
Plaintiff-Appellee,
v.  D.C. No.
3:09-cr-00170-MO-1
JAMES A. JACKSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted
July 12, 2012—Portland, Oregon
Filed October 11, 2012
Before: Betty B. Fletcher and Harry Pregerson,
Circuit Judges, and Consuelo B. Marshall,
Senior District Judge.*
Per Curiam Opinion
*The Honorable Consuelo B. Marshall, Senior District Judge for the
U.S. District Court for the Central District of California, sitting by desig-
nation.
12239
UNITED STATES v. JACKSON 12241
COUNSEL
Robert A. Weppner, Portland, Oregon, for appellant James
Albert Jackson.
Kelly A. Zusman, Assistant United States Attorney, Portland,
Oregon, for appellee United States of America.
OPINION
PER CURIAM:
Defendant-Appellant James Albert Jackson (“Jackson”)
appeals the district court’s denial of his motion to dismiss the
indictment based on the Speedy Trial Act, 18 U.S.C. §§ 3161,
3162, and the use of a two-level sentencing enhancement for
use of a computer. This court has jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I. FACTUAL AND PROCEDURAL HISTORY
Appellant James Albert Jackson (“Appellant”) met a 14-
year-old minor, referred to as AK, on the streets of Seattle,
12242 UNITED STATES v. JACKSON
Washington, where AK was engaged in prostitution and
cocaine distribution. After giving AK alcohol and having sex
with her multiple times, Appellant convinced AK to move
with him to Portland, Oregon so the two could sell ecstacy.
Once in Portland, Appellant told AK that she would have
to prostitute herself to pay for their motel room. Appellant
beat and choked her during this first night in Portland. For the
next three months, AK earned approximately $400-$600 per
day as a prostitute and gave her earnings to Appellant. Appel-
lant asked co-defendant Donnico Johnson and Johnson’s pros-
titute, Lisa Miles, to take and post photos of AK on an online
advertisement on the website craigslist.com.
After AK was arrested twice for prostitution, she told the
authorities about Appellant and co-defendant Johnson, who
were then arrested. Appellant was originally charged on May
6, 2009, and arrested in Texas on May 11, 2009. A supersed-
ing indictment was filed on June 24, 2009. Appellant was
charged with “sex trafficking” in violation of 18 U.S.C.
§§ 1591(a), (b)(1). Specifically, Appellant was charged under
these sections with “knowing that force, fraud, and coercion
would be used to cause [a minor] ‘A.K.’ to engage in com-
mercial sex acts . . . [he] did, in and affecting interstate com-
merce, recruit, entice, harbor, transport, provide and obtain by
any means, ‘A.K.’; and . . . did benefit, financially . . . from
participating in a venture which engaged in commercial sex
acts.”
Appellant moved to continue the trial date multiple times
in 2009, which the trial court granted each time. On January
20, 2010, Appellant’s attorney filed a motion for a compe-
tency hearing as to his client. On January 29, the district court
ordered that Appellant undergo a competency evaluation by
a local psychologist to be agreed upon by counsel for the par-
ties. On March 1, Appellant’s attorney filed an affidavit
regarding Appellant’s competency and the competency hear-
ing convened. The district court found Appellant incompetent
UNITED STATES v. JACKSON 12243
to assist in his own defense on March 4, 2010, and ordered
that “trial proceedings in this matter pertaining to defendant
James Albert Jackson are hereby suspended pending the com-
pletion of the § 4241 evaluation . . . .”
The court ordered that “the Attorney General shall hospital-
ize [Appellant] in a suitable facility for a reasonable period of
time, not to exceed four months, as is necessary to determine
if there is a substantial probability that in the foreseeable
future Mr. Jackson will attain the capacity to permit trial pro-
ceedings . . . .” The order also instructed “that the U.S. Mar-
shal’s Service shall take such reasonable measures to ensure
that the travel and transportation of defendant James Albert
Jackson to the custody of the Attorney General shall be con-
ducted in a reasonable manner and within a reasonable time
period.”
The parties and the court apparently discussed transport
issues at a May 10, 2010 status conference, but the conference
was not reported. Appellant filed a motion to dismiss on July
15, 2010 after Appellant still had not been transferred to a
federal medical center on the grounds of the Speedy Trial Act,
18 U.S.C. §§ 3161, 3162. The record does not contain evi-
dence as to the reason for the delay in transferring Appellant.
Within six days of filing his motion to dismiss, Appellant was
transported from Oregon to the Bureau of Prison’s medical
facility in Springfield, Missouri. The court denied the motion
on September 17, 2010 without oral argument.
A competency hearing was held on December 14, 2010, at
which the district court found Appellant competent and set a
new trial date. Appellant requested and was granted another
continuance of the trial on January 4, 2011. Appellant pleaded
guilty unconditionally to the first count without a plea bargain
on March 3, 2011. The government moved to dismiss the
remaining five counts at a June 3, 2011 sentencing hearing.
The district court imposed a 480-month sentence, plus five
12244 UNITED STATES v. JACKSON
years of supervised release, which included a two-level sen-
tence enhancement for use of a computer.
II. APPELLANT WAIVED HIS RIGHT TO APPEAL
THE DENIAL OF HIS MOTION TO DISMISS
We review de novo issues involving waiver, United States
v. Pacheco-Navarette, 432 F.3d 967, 970 (9th Cir. 2005), and
the district court’s denial of a motion to dismiss for noncom-
pliance with the Speedy Trial Act, United States v. Pena-
Carrillo, 46 F.3d 879, 882 (9th Cir. 1995).
[1] An unconditional guilty plea waives all non-
jurisdictional, antecedent defects. Tollett v. Henderson, 411
U.S. 258, 267 (1973) (“When a criminal defendant has sol-
emnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitu-
tional rights that occurred prior to the entry of the guilty plea.
He may only attack the voluntary and intelligent character of
the guilty plea. . . .”); United States v. Lopez-Armenta, 400
F.3d 1173, 1175 (9th Cir. 2005) (“[I]t is well-settled that an
unconditional guilty plea constitutes a waiver of the right to
appeal all nonjurisdictional antecedent rulings and cures all
antecedent constitutional defects.”). This principle applies to
Speedy Trial Act challenges. See, e.g., United States v. Bohn,
956 F.2d 208, 209 (9th Cir. 1992) (“By pleading guilty, Bohn
waived his right to assert a violation of the Speedy Trial Act.
. . . The right to a speedy trial under the Speedy Trial Act is
nonjurisdictional.”).
This Court maintains jurisdiction to consider the appeal,
but typically will dismiss the appeal when the government
properly and timely raises the waiver. See, e.g., United States
v. Jacobo Castillo, 496 F.3d 947, 953-54 (9th Cir. 2007)
(“We recently reached a similar conclusion in determining
that Federal Rule of Appellate Procedure 4(b) is a forfeitable,
nonjurisdictional claim-processing rule. . . . We ultimately
UNITED STATES v. JACKSON 12245
dismissed the appeal, however, because we found that the
government had properly raised the untimeliness argument,
and under the rules we were required to dismiss.”) (en banc).
[2] Appellant was represented by counsel in the district
court. Because the plea was unconditional despite the avail-
ability of a conditional plea pursuant to Federal Rule of Crim-
inal Procedure Rule 11(a)(2), Appellant has waived his right
to appeal non-jurisdictional, antecedent defects including his
right to assert a violation of the Speedy Trial Act. We there-
fore affirm the district court’s denial of Appellant’s Motion to
Dismiss based on the Speedy Trial Act.
III. THE TRIAL COURT COMMITTED NO ERROR
IN ENHANCING APPELLANT’S SENTENCE FOR
USE OF A COMPUTER
We review de novo a district court’s interpretation and
application of the Sentencing Guidelines. United States v.
Nielsen, 371 F.3d 574, 582 (9th Cir. 2004); United States v.
Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002). When a
defendant raises an issue on appeal that was not raised before
the district court, however, “his claim of error is subject to a
limited appellate review for plain error . . . . Under that
review, relief is not warranted unless there has been (1) error,
(2) that is plain, and (3) affects substantial rights.” Jones v.
United States, 527 U.S. 373, 389 (1999). The Ninth Circuit
will “reverse for plain error only if an error was obvious,
affected substantial rights, and a miscarriage of justice would
otherwise result.” United States v. Doss, 630 F.3d 1181, 1193
(9th Cir. 2011) (as amended).
First, we find that Appellant did not raise this specific argu-
ment at the district court. Ninth Circuit precedent requires that
a specific argument clearly be raised in the district court. See,
e.g., United States v. Baker, 63 F.3d 1478, 1500 (9th Cir.
1995) (“A challenge to an adjustment of an offense level must
be raised specifically at sentencing in order to afford the dis-
12246 UNITED STATES v. JACKSON
trict court an opportunity to correct any potential error.”);
United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.
1990) (“Thus, a party fails to preserve an evidentiary issue for
appeal not only by failing to make a specific objection, . . .
but also by making the wrong specific objection.”).
While Appellant objected to the computer-use enhancement
in his Sentencing Position Paper, he did so on the grounds that
Appellant’s involvement with the use of a computer was inci-
dental and vicarious in nature because it was his co-defendant,
and not Appellant himself, who used the computer.1 Appellant
did not raise the specific Guideline-interpretation argument
that he now raises on appeal. We therefore apply a plain-error
standard.
[3] The district court enhanced Jackson’s sentence by two
levels because he had allegedly used a computer to facilitate
the commission of the prohibited sex trafficking. The Federal
Sentencing Guidelines state:
If the offense involved the use of a computer or an
interactive computer service to (A) persuade, induce,
entice, coerce, or facilitate the travel of, the minor to
engage in prohibited sexual conduct; or (B) entice,
encourage, offer, or solicit a person to engage in pro-
hibited sexual conduct with the minor, increase by 2
levels.
U.S.S.G. § 2G1.3(b)(3). Part (B) of § 2G1.3(b)(3) would
seemingly apply to the facts of this case because it contem-
plates using a computer to entice or solicit a third party—the
“person”—to engage in prohibited sexual conduct with the
minor. The Commentary to this Guideline indicates, however,
that § 2G1.3(b)(3) would not apply to the facts of this case
1
Appellant did not brief before this Court this argument regarding the
incidental and vicarious nature of the use of the computer.
UNITED STATES v. JACKSON 12247
because the computer was not used to communicate directly
with the minor or her custodian:
Subsection (b)(3) is intended to apply only to the use
of a computer or an interactive computer service to
communicate directly with a minor or with a person
who exercises custody, care, or supervisory control
of the minor. Accordingly, the enhancement in sub-
section (b)(3) would not apply to the use of a com-
puter or an interactive computer service to obtain
airline tickets for the minor from an airline’s Internet
site.
USSG § 2G1.3 cmt. n. 4.
This Circuit has not yet ruled on whether the plain language
of subsection (B) of USSG § 2G1.3(b)(3) is inconsistent with
the Application Note that follows the Guideline. We look to
other circuits for guidance.
The Seventh Circuit considered a similar fact pattern and
found the commentary to be authoritative. In United States v.
Patterson, 576 F.3d 431 (7th Cir. 2009), cert. denied, 130
S.Ct. 1284 (2010), the defendant brought a 14-year-old from
out of state to Illinois so that she could work as a prostitute.
Another female working as a prostitute for the defendant’s
half-brother posted prostitution advertisements for the victim
on internet sites such as craigslist.com. Patterson, 576 F.3d at
434. The Seventh Circuit ruled that the enhancement was
improper because there was no direct computer communica-
tion with the minor. Id.The government here attempts to distinguish this case from
Patterson by noting that the ads in Patterson were placed on
the computer “by a third party” and that the government in
Patterson conceded on appeal that the use-of-a-computer
enhancement was improper. The Seventh Circuit did not rule
based on these factors, and instead held that despite that lan-
12248 UNITED STATES v. JACKSON
guage of subsection (B), “[t]he commentary . . . provides that
‘[s]ubsection (b)(3) is intended to apply only to the use of a
computer or an interactive computer service to communicate
directly with a minor or with a person who exercises custody,
care, or supervisory control of the minor.’ ” Patterson, 576
F.3d at 443 (quoting USSG § 2G1.3 cmt. n. 4). “In this case,
no computers were used to ‘communicate directly’ with the
victim or the victim’s custodian, so the enhancement does not
apply.” Id.2
[4] If this Court were to find that the plain language of
subsection (B) of USSG § 2G1.3(b)(3) is inconsistent with the
Application Note that follows the Guideline, the plain lan-
guage of the Guideline would control. “[C]ommentary in the
Guidelines Manual that interprets or explains a guideline is
authoritative unless it . . . is inconsistent with, or a plainly
erroneous reading of, that guideline.” Stinson v. United States,
508 U.S. 36, 38 (1993). We need not decide whether the plain
language of subsection (B) of USSG § 2G1.3(b)(3) is in fact
inconsistent with the Application Note that follows the Guide-
2
The Eleventh Circuit considered a similar situation in an unpublished
opinion and opted not to make a finding as to the applicability of the sen-
tence enhancement. See United States v. Madkins, 390 F. App’x 849, 852
(11th Cir. 2010). Considering the argument under a plain error standard,
the court found that regardless of the guideline’s applicability, there was
no showing that the district court’s possible error affected the defendant’s
substantial rights:
Although a persuasive case has been made that the commentary
is at odds with the plain language of this enhancement, we need
not decide whether the commentary is inconsistent with or a
plainly erroneous reading of the guideline, for the case can be
decided on a narrower ground. Madkins has not shown that this
error affected his substantial rights. Nothing in the record sug-
gests that the district court would have imposed a different sen-
tence absent this enhancement. At most, the impact of any
revision to Madkins’s guideline range is speculative, and Madkin
cannot carry his burden to show prejudice or a miscarriage of jus-
tice.
Id.
UNITED STATES v. JACKSON 12249
line, as this case can be decided on narrower grounds. We
hold that the district court did not commit any obvious or
plain error in this case. In the absence of controlling authority
stating otherwise, a district court could reasonably find that an
inconsistency does exist and interpret the plain language of
subsection (B) of USSG § 2G1.3(b)(3) to apply to the facts of
this case. We leave district courts in this Circuit with the dis-
cretion, however, to decide whether this Application Note
creates an inconsistency with the plain language of subsection
(B) of USSG § 2G1.3(b)(3).
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
denial of Jackson’s motion to dismiss the indictment and
AFFIRM Jackson’s conviction. We also AFFIRM the district
court’s sentencing enhancement for use of a computer. The
judgment of the district court is AFFIRMED.