408 F.3d 301 (6th Cir. 2005), 04-3074, United States v. Jackson

Docket Nº:04-3074.
Citation:408 F.3d 301
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Michael E. JACKSON, Defendant-Appellee.
Case Date:May 24, 2005
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 301

408 F.3d 301 (6th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellant,

v.

Michael E. JACKSON, Defendant-Appellee.

No. 04-3074.

United States Court of Appeals, Sixth Circuit.

May 24, 2005

Argued: Feb. 3, 2005.

Page 302

ARGUED:

Daniel S. Goodman, United States Department of Justice, Washington, D.C., for Appellant.

Debra K. Migdal, Federal Public Defender's Office, Cleveland, Ohio, for Appellee.

ON BRIEF:

Daniel S. Goodman, United States Department of Justice, Washington, D.C., Joseph P. Schmitz, Assistant United States Attorney, Cleveland, Ohio, for Appellant.

Debra K. Migdal, Federal Public Defender's Office, Cleveland, Ohio, for Appellee.

Before: GIBBONS and SUTTON, Circuit Judges; EDGAR, Chief District Judge. [*]

OPINION

GIBBONS, Circuit Judge.

Defendant-appellee Michael E. Jackson pled guilty to one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C.§ 922(g)(1). The district court granted Jackson's motion for a downward departure, departing eight levels from Jackson's base offense level. The district court sentenced Jackson to three years of probation, with a special condition of six months home confinement with electronic monitoring. The government appeals the district court's sentence, arguing that the court imposed an unreasonable sentence because the district court both failed to justify the decision to vary Jackson's sentence from the applicable guidelines range as well as the extent of the variance under 18 U.S.C. § 3553(a) and also relied on factors which are considered to be either discouraged or prohibited under the now-advisory United States Sentencing Guidelines (U.S.S.G.).

For the following reasons, we vacate Jackson's sentence and remand the case to the district court for resentencing consistent with the Supreme Court's decision in United States v. Booker, --- U.S. ----, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

I.

On the evening of January 20, 2003, Youngstown police officers observed a blue Cadillac Sedan DeVille traveling at a high rate of speed and turning without using a signal. The officers stopped the car, driven by Jackson, who explained that he was speeding because he was on his way to check on a business alarm that had gone off in the area. When the officers looked in the car, they observed the butt of a handgun sticking out from under the driver's seat. The handgun was a Hi-Point 9 mm pistol with eight rounds of live ammunition. Jackson was arrested for carrying a concealed weapon and was issued a traffic citation for failure to use his signal before turning.

Following the arrest for the concealed weapon, Jackson was indicted on one count of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 1 On September 11, 2003,

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Jackson pled guilty to this count. Under the plea agreement, Jackson and the government agreed that the appropriate base offense level pursuant to U.S.S.G. § 2K2.1(a)(4) was twenty because Jackson had previously been convicted of a crime of violence. The government agreed not to oppose a reduction of three levels for Jackson's acceptance of responsibility pursuant to U.S.S.G. § 3E1.1(a) and (b).

The presentence investigation report calculated Jackson's total offense level to be seventeen and his criminal history category to be two. The presentence investigation report noted that the maximum term of imprisonment was ten years, and that Jackson's criminal history category and total offense level placed him within a Guidelines sentence range of twenty-seven to thirty-three months. On December 3, 2003, Jackson filed a motion with the court for a downward departure. Jackson sought a departure pursuant to U.S.S.G. § 5K2.0. Specifically, Jackson argued that (1) because he possessed the firearm only for purposes of self-defense, a downward departure was warranted pursuant to U.S.S.G. § 5K2.11 and United States v. One Star, 9 F.3d 60 (8th Cir.1993); (2) his base offense level should more appropriately be considered fourteen rather than twenty, because although Jackson's previous crime was technically a crime of violence, it was more akin to a non-violent felony because it occurred during the course of Jackson's divorce, which was a difficult time period in his life; (3) he should be granted a downward departure due to the fact that Jackson is the primary caretaker of his grandmother, Cora Jackson; and (4) all of Jackson's circumstances, taken together, support a downward departure. Jackson's motion requested a departure from a base offense level of twenty to nine, which would allow the court to impose a sentence that did not include incarceration. On December 15, 2003, the government filed a response opposing Jackson's motion for a downward departure, arguing that none of Jackson's stated grounds warranted a departure below Jackson's applicable sentencing range.

At Jackson's December 16, 2003, sentencing hearing, the court announced that it had decided to grant a downward departure of eight levels. The court stated that it did not intend to "pars[e] out the departure," relying on the Eighth Circuit case of One Star, 9 F.3d at 60. The judge noted that his fourteen years of prosecutorial experience led him to believe that most defendants in criminal cases "cease criminal conduct by the time they're 35. This defendant is 40 ...." The court also noted that...

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