United States v. Jackson, 97-3924

• Decision Date: 28 January 1999
• Docket Number: No. 97-3924,97-3924
• Citation: 181 F.3d 740
• Parties: (6th Cir. 1999) United States of America, Plaintiff-Appellee, v. Erick Jackson, Defendant-Appellant. Submitted:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 740

181 F.3d 740 (6th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Erick Jackson, Defendant-Appellant.

No. 97-3924

UNITED STATES COURT OF APPEALS OR THE SIXTH CIRCUIT

Submitted: January 28, 1999

Decided and Filed: June 10, 1999

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 94-00017--Sandra S. Beckwith, District Judge.

Stephen E. Palmer, YAVITCH & PALMER, Columbus, Ohio, Erick Jackson, Bradford, Pennsylvania, for Appellant.

Terry Lehmann and Salvador A. Dominguez, OFFICE OF THE U.S. ATTORNEY, Columbus, Ohio, for Appellee.

Before: KENNEDY, DAUGHTREY, and CLAY, Circuit Judges.

OPINION

CLAY, Circuit Judge.

Defendant Erick Jackson appeals the order of the district court resentencing him for his conviction for conspiracy to distribute cocaine in violation of 21 U.S.C. 841(a)(1) (1994), on the grounds that the district court retaliated against him by imposing a greater sentence on remand and that he did not receive effective assistance of counsel during resentencing. For the reasons set forth below, we REVERSE the judgment of the district court and REMAND for further proceedings.

I.

A federal grand jury in Columbus, Ohio returned a twenty-nine count indictment on February 16, 1994, charging fifteen individuals with various federal criminal offenses stemming from a conspiracy to distribute powder and crack cocaine. Count I of this indictment charged Defendant with conspiring to possess with the intent to distribute more than 500 grams of powder cocaine or more than five grams of crack cocaine in violation of 21 U.S.C. 841(a)(1).¹ Defendant pled not guilty to the charge on June 6, 1994.

Ten of the defendants named in the indictment entered into plea agreements with the government. The remaining five, including Defendant, proceeded to a jury trial on November 1, 1994.² The jury returned a guilty verdict against Defendant as to the charge set forth in Count I in the indictment. In accordance with the United States Sentencing Guidelines ("Guidelines"), the district court ordered a Presentence Investigation Report ("PSI"). The PSI reported three criminal history points, placing Defendant in a criminal history category of II. The district court found Defendant responsible for 1,725.97 grams of cocaine. In Defendant's case, these findings produced a Guidelines sentence range of 262 to 327 months. Defendant appeared for sentencing on June 7, 1995, and received a sentence of 262 months imprisonment. Defendant filed a timely notice of appeal to this Court on June 7, 1995.

On appeal, Defendant's case was consolidated with those of his co-defendants, including that of Vincent Welch, another individual charged in the indictment. See United States v. Welch, 97 F.3d 142 (6th Cir. 1996). In that appeal, Defendant argued that (1) the district court erroneously calculated the amounts of drugs attributable to him; (2) the district court erroneously found that he was not a minor participant; (3) the district court erroneously failed to consider a "quantity-time factor" in sentencing him; (4) the district court erroneously upheld the constitutionality of the 100:1 ratio in cocaine sentencing; and (5) his conviction was not supported by sufficient evidence. In an opinion issued on October 2, 1996, a panel of this Court rejected all but one of Defendant's arguments. See Welch, 97 F.3d at 148-54. This Court concluded that the district court improperly attributed a particular instance of drug trafficking and a particular drug quantity to Defendant. See id. at 153. Accordingly, this Court vacated Defendant's sentence and remanded for resentencing. See id.

On remand, the district judge that initially sentenced Defendant received a revised PSI regarding Defendant. In the revised PSI, the United States Probation Officer attributed to Defendant an additional criminal history point, bringing Defendant to a total of four criminal history points and placing Defendant in a criminal history category of III instead of II. When Defendant appeared for resentencing before the district court on October 2, 1997, defense counsel objected to the addition of a criminal history point. The government told the district court that the change in Defendant's criminal history points and therefore in his criminal history category resulted from the correction of a miscalculation in the first PSI, in that while the first PSI failed to count a conviction for rioting in Defendant's record, the second PSI included the conviction in its criminal history calculation. The district court adopted the increase in Defendant's criminal history, noting that the crime of rioting was a misdemeanor in Ohio and that Guidelines computations of criminal history include misdemeanors. The district court found Defendant responsible for 951.025 grams of cocaine, approximately one-half the amount found at the previous sentencing.

Under a criminal history category of III and an offense level of 36, the Guidelines set forth a sentence range of 235 to 293 months imprisonment, supervised release for five years, a fine ranging from $25,000 to $4,000,000, and a statutory fee of $50. The district court imposed on Defendant a sentence of 292 months imprisonment, supervised release for five years, a fine in the amount of $1,000, and a statutory fee of $50. Defendant filed a second notice of appeal to this Court on June 19, 1997.

II.

As a preliminary matter, we observe that in addition to raising claims of retaliatory resentencing and ineffective assistance of counsel, Defendant challenges for a second time before this Court (1) the sufficiency of the evidence supporting his conviction; (2) the constitutionality of the sentencing of offenses involving crack cocaine; (3) the district court's finding that he was not a minor participant in the drug conspiracy; and (4) the district court's failure to employ a "quantity-time factor" analysis in determining the amount of cocaine for which it could sentence Defendant. Because another panel of this Court decided those issues in Welch, 97 F.3d at 142,³ we decline Defendant's invitation to revisit them in this appeal.

III.

We view constitutional challenges to sentences as questions of law subject to a de novo standard of review. See United States v. Smith, 73 F.3d 1414, 1417 (6th Cir. 1996) (citing United States v. Knipp, 963 F.2d 839, 843 (6th Cir. 1992)). We also review de novo claims of ineffective assistance of counsel, since the analysis of such a claim requires a consideration of mixed questions of law and fact. See Blackburn v. Foltz, 828 F.2d 1177, 1181 (6th Cir. 1987). Any findings of fact pertinent to the ineffective assistance of counsel inquiry are subject to a "clearly erroneous" standard of review. See id. We turn now to Defendant's respective challenges to the conduct of the district court and his attorney at his resentencing.

A.

Constitutional due process "requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." North Carolina v. Pearce, 395 U.S. 711, 725 (1969). In Pearce, the Court announced, in order to assure the absence of retaliatory motivation in sentencing, that "whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear." Id. at 726. The Court's subsequent jurisprudence makes clear that the principle announced in Pearce constitutes a "prophylactic rule" that provides for a "presumption of vindictiveness, which may be overcome only by objective information in the record justifying the increased sentence." United States v. Goodwin, 457 U.S. 368, 374 (1982). Such information may come to the attention of a judge from a new presentence investigation or possibly from other sources. See Pearce, 395 U.S. at 723. We have applied the Pearce rule where a defendant is merely resentenced and not retried on remand. See, e.g., United States v. Duso, 42 F.3d 365 (6th Cir. 1994).

Cases following Pearce illustrate that while due process does not forbid enhanced sentences, it prohibits actual vindictiveness against a defendant for having exercised his rights. See Wasman v. United States, 468 U.S. 559, 569 (1984). They further instruct that "where the presumption applies, the sentencing authority . . . must rebut the presumption that an increased sentence . . . resulted from vindictiveness; where the presumption does not apply, the defendant must affirmatively prove actual vindictiveness." Id. Since Pearce, the Court has hesitated to extend the presumption of vindictiveness in cases where it has perceived that the likelihood of vindictiveness was less pronounced. For example, the Court has concluded that the possibility of vindictiveness in sentencing did not inhere where a de novo tribunal retried the defendant, see Colten v. Kentucky, 407 U.S. 104, 116 (1972), where a jury imposed an increased sentence after a retrial, see Chaffin v. Stynchcombe, 412 U.S. 17, 27 (1973), or where the trial judge herself called for retrial, see Texas v. McCullough, 475 U.S. 134, 138 (1986). These cases suggest that even where a defendant receives a higher sentence on remand or after a retrial, the presumption of Pearce does not operate where the entity imposing the higher sentence does not have a "personal stake" or a "motivation to engage in self-vindication." Chaffin, 412 U.S. at 27. Again, however, where the presumption does not apply, a defendant may still prevail by showing actual vindictiveness on the part of the sentencing authority. See Wasman, 468 U.S. at 569.

In this case, the district court originally sentenced Defendant at the low end of the Guidelines range by imposing 262 months imprisonment. On remand after a successful appeal by Defendant, the district court revisited the sentencing procedure and discovered that it had failed to consider a...