U.S. v. Jackson

• Citation: 467 F.3d 834
• Decision Date: 09 November 2006
• Docket Number: No. 05-4091.,05-4091.
• Parties: UNITED STATES of America v. Johnathan Ryan JACKSON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

467 F.3d 834

UNITED STATES of America v. Johnathan Ryan JACKSON, Appellant.

No. 05-4091.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a) September 28, 2006.

Opinion filed: November 9, 2006.

As Amended November 17, 2006.

Elizabeth T. Hey, Assistant Federal Defender, Brett G. Sweitzer, Assistant Federal Defender, David L. McColgin, Assistant Federal Defender, Supervising Appellate Attorney, Maureen Kearney Rowley, Chief Federal Defender, Federal Community Defender Office for the Eastern District of Pennsylvania, Philadelphia, PA, Counsel for Appellant.

Patrick L. Meehan, United States Attorney, Robert A. Zauzmer, Assistant United States Attorney, Chief of Appeals, Sarah L. Grieb, Assistant United States Attorney, Philadelphia, PA, Counsel for Appellee.

Before: McKEE and AMBRO, Circuit Judges RESTANI,^* Chief Judge, Court of International Trade.

OPINION OF THE COURT

AMBRO, Circuit Judge.

We address in this case further aspects of the sentencing process for our Circuit in the wake of the Supreme Court's decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). In so doing, we affirm the sentence imposed by the District Court.

I. Factual and Procedural Background

Johnathan Ryan Jackson was arrested in 2004 after an investigation into reports of counterfeit $20 bills circulating in Pottstown, Pennsylvania. As a result of this investigation, local police officers and U.S. Secret Service agents obtained a search warrant for an apartment unit in Pottstown. Upon executing the search warrant, the police found Jackson inside the apartment with a color photocopier, a paper cutter and utility knife, white résumé paper, two individual counterfeit $20 bills, 24 other counterfeit $20 bills yet to be cut from printed sheets of the résumé paper, and $287 in legitimate U.S. currency (including two $20 bills that had served as patterns for the counterfeits). Officers also found what appeared to be a line of powdered cocaine.

Jackson quickly admitted his crimes and, after indictment, notified the Government of his intent to plead guilty to the charges—one count each of counterfeiting obligations of the United States, 18 U.S.C. § 471, uttering counterfeit obligations, id. § 472, and dealing in counterfeit obligations, id. § 473. Jackson admitted to having produced approximately $50,000 in counterfeit currency over six months, selling much of it for about 30 cents on the dollar, and using the rest at flea markets and bars or with drug dealers. The full extent of Jackson's criminal behavior likely would not have been known but for his cooperation.

At Jackson's sentencing hearing, the District Court calculated the advisory Sentencing Guidelines range to be 37-46 months of imprisonment, followed by between two and three years of supervised release. The recommended range stemmed principally from the amount of counterfeit currency to which Jackson had admitted producing (adding six levels to the base offense level of nine) and by Jackson's criminal history category of VI (the highest possible). He also received a three-level reduction in the base offense level for his early guilty plea, thus sparing the Government the expense of preparing for and conducting a trial.

Jackson made two principal arguments to the District Court in favor of a sentence below the advisory Guidelines range. First, he asserted that his "extraordinary acceptance of responsibility" warranted a downward departure pursuant to the Guidelines themselves. Second, Jackson noted many mitigating factors for the Court to consider in the exercise of its sentencing discretion, including an upbringing in which drugs were commonplace and contributed to his own addiction. Jackson's drug problems, in addition to providing the impetus for his counterfeiting activities, also led to a particularly acute eight-month period in which he committed all of the crimes accounting for his high Guidelines criminal history score. These mitigating factors, argued Jackson, warranted a sentence below the advisory Guidelines range.

After adopting the presentence report (with minor changes), the Judge began Jackson's sentencing hearing as follows:

Under the Supreme Court's decision in Booker, the guidelines are advisory, not mandatory. Accordingly, in reviewing the revised presentence investigation report, I have considered the guideline range in the report as just one of many factors, including the nature and circumstances of the offense, and the history and characteristics of the defendant, the pertinent sentencing commission policy statements, such as the need to avoid unwarranted sentencing disparities and the need to provide restitution to victims, the need for the sentence to provide for just punishment for the offenses charged, the need to provide adequate deterrence to criminal conduct, the need to promote respect for the law, and the need to protect the public from further crimes of the defendant.

Next, Jackson's attorney presented the arguments noted above, followed by a response from the attorney for the United States. The Judge then imposed Jackson's sentence of 37 months (the bottom of the advisory Guidelines range), followed by three years of supervised release, and the mandatory special assessment of $300. (No fine was imposed due to Jackson's inability to pay.) The Judge also recommended to the Bureau of Prisons that Jackson participate in drug and psychological treatment programs. Explaining Jackson's sentence, the Judge said:

Mr. Jackson, you've committed very serious crimes, as I've described above. You've pled guilty to three counts of counterfeit currency-related crimes.

I considered the following factors as significant in determining the sentence that I will impose: your seven prior adult convictions [and] that, in 2000, you were twice convicted of aggravated assault, and these crimes involved violence.

I have also considered the very persuasive comments made by your very capable counsel. I have considered the circumstances of your upbringing, including your parents' drug addiction, and your financial circumstances.

Jackson makes two claims on appeal: (1) that the District Court erred by failing explicitly to rule on his motion for a downward departure from the initial Guidelines range, and (2) that the Court did not adequately consider all of the relevant factors of 18 U.S.C. § 3553(a) in refusing to vary his sentence from that range.¹

II. Discussion

In United States v. Gunter, 462 F.3d 237 (3d Cir.2006), we made explicit the three-step process that District Courts in this Circuit should follow after the Supreme Court's ruling in Booker:

(1) Courts must continue to calculate a defendant's Guidelines sentence precisely as they would have before Booker.

(2) In doing so, they must formally rule on the motions of both parties and state on the record whether they are granting a departure and how that departure affects the Guidelines calculation, and take into account our Circuit's pre-Booker case law, which continues to have advisory force.

(3) Finally, they are to exercise their discretion by considering the relevant § 3553(a) factors in setting the sentence they impose regardless whether it varies from the sentence calculated under the Guidelines.

Id. at 247, 125 S.Ct. 738 (quotation marks, brackets, and citations omitted) (citing United States v. King, 454 F.3d 187, 194, 196 (3d Cir.2006); Cooper, 437 F.3d at 329, 330).

The two points of error that Jackson presses in this appeal fall into the second and third steps set out in Gunter. The first alleged error relates to a Guidelines "departure," and the second to a Guidelines "variance."² We address each in turn.

A. Gunter's Step Two: Guidelines Departures

Pre-Booker, district courts had the (limited) authority to depart from the mandatory Guidelines range if they found "that there exist[ed] an aggravating or mitigating circumstance ... of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that ... should result in a sentence different from that described." U.S.S.G. § 5K2.0(a)(1).³ Our Court's jurisdiction to review the denial of such departures depended on a district court's reason for denial. If the judge believed s/he could not legally depart on the ground asserted, we had jurisdiction to review for legal error; if, instead, the judge recognized her/his authority to depart but chose not to do so, we lacked jurisdiction to review that decision. United States v. Denardi, 892 F.2d 269, 271-72 (3d Cir.1989) (citing 18 U.S.C. § 3742); see also United States v. D'Angelico, 376 F.3d 141, 141 (3d Cir.2004); United States v. Stevens, 223 F.3d 239, 247 (3d Cir.2000); United States v. Mummert, 34 F.3d 201, 205 (3d Cir.1994). Not surprisingly, we needed district judges to "state expressly whether [their] denial of [a] defendant's departure request was based on legal or discretionary grounds." Mummert, 34 F.3d at 205; see D'Angelico, 376 F.3d at 141-42. If we were unable to discern the basis for a court's denial of a departure motion, remand was the remedy. United States v. Evans, 49 F.3d 109, 112 (3d Cir. 1995); Mummert, 34 F.3d at 205.

Again, our rule mandating an unambiguous record for rulings on departure motions derived from the need to determine whether we had jurisdiction to review a sentence within the Guidelines range. After Booker, however, we have jurisdiction to review all criminal sentences for reasonableness, even those that result from the exercise of a district court's discretion to set a sentence within the Guidelines range. See Cooper, 437 F.3d at 326-28. Still, the clear intent of the remedial opinion in Booker was for the process of calculating the Guidelines to continue operating as before. See Booker, 543 U.S. at 258-62, 125 S.Ct. 738 ("The remainder of the [Sentencing Reform] Act functions independently." (internal quotation marks omitted)); Gu...