United States v. Hackett

• Decision Date: 07 August 2014
• Docket Number: No. 12–4428.,12–4428.
• Citation: 762 F.3d 493
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. DaQuann HACKETT, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

762 F.3d 493

UNITED STATES of America, Plaintiff–Appellee,

v.DaQuann HACKETT, Defendant–Appellant.

No. 12–4428.

United States Court of Appeals, Sixth Circuit.

Argued: May 8, 2014.

Decided and Filed: Aug. 7, 2014.

ARGUED:David L. Doughten, Cleveland, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee. ON BRIEF:David L. Doughten, Cleveland, Ohio, for Appellant. Daniel R. Ranke, United States Attorney's Office, Cleveland, Ohio, for Appellee.

Before: SUHRHEINRICH, KETHLEDGE, and WHITE, Circuit Judges.

OPINION

KETHLEDGE, Circuit Judge.

Around 2003, at the age of 13 or 14, DaQuann Hackett helped form the LSP street gang on the south side of Youngstown, Ohio. Eight years later, a federal grand jury indicted Hackett and 22 others for RICO conspiracy and dozens of other crimes. Most of Hackett's codefendants pled guilty, but Hackett and four of his codefendants proceeded to trial. A jury convicted Hackett of various gang-related, weapons, and drug offenses, along with the RICO conspiracy charge. The district court sentenced him to 440 months' imprisonment. Hackett now appeals. Of his many arguments, only one has merit: that Hackett's mandatory-minimum sentence on a firearms count was imposed in violation of the Supreme Court's later decision in Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). We therefore affirm Hackett's convictions but remand for resentencing.

I.

A.

LSP was named after three streets—Laclede, Sherwood, and Parkview—in the neighborhood where its members lived. The original members, including Hackett, Derrick Johnson, and Terrance Machen, grew up together, “played ball together,” and their “families were very [ ] close.” Over time, LSP grew in size. Sometimes the gang initiated new members through a group beating, a process known as “jumping in.” But not everyone who “hung around” the gang was a member. Some people, called “associates,” were permitted to sell drugs in the neighborhood. Other hangers-on, called “flunk[ies],” performed menial tasks such as purchasing bullets for the gang.

LSP's focus was drug trafficking. Although members did not split the profits from their drug sales, they did supply each other with drugs. Hackett was the gang's crack supplier, and managed an abandoned house from which gang members sold drugs.

Hackett “had the most say so” in the gang. One witness testified that “[e]verything revolved around” Hackett—“the drugs, the guns, [and] the people he was around.” The gang otherwise had an informal hierarchy based on “respect.” Members earned respect by “putting in work,” which sometimes meant shooting members of rival gangs. Generally, “anything illegal” got respect; and the more violent a member was, the more respect he got.

Violence was important because LSP competed with rival gangs (in particular, the Circle Boyz) for the neighborhood drug trade. LSP's violence—drive-by shootings, fights with other gang members, and so on—“sen[t] a message to other gangs to stay away” from LSP's territory and to steer clear of its drug business. LSP members sent the same message through their MySpace pages, on which they posted pictures of themselves posing with guns and bulletproof vests, displaying LSP tattoos, and making hand signs that signaled their gang affiliation. In short, LSP's members protected the gang's violent reputation; the gang's reputation protected its territory; and the territory allowed gang members to make money by selling drugs.

B.

LSP members “didn't get along” with a neighborhood youth, Sherrick Jackson, who lived with his mother, Deborah Newell. In the early morning hours of October 16, 2008, Derrick Johnson (an LSP member) and Dominique Callier (an LSP associate) opened fire on Newell's house. Two bullets went through the upstairs window; one “flew past” the head of Newell's daughter, Shalaya Jackson. Another two bullets passed through an outside wall and into a couch where Newell's niece, Cierra Mann, usually slept. The shooters ran back across the lawn and jumped into a black car parked on an adjoining street. Then the car sped away.

Several weeks later, another shooting took place. Shalaya and Mann were walking from Newell's house to a corner store when they saw Hackett drive past the house. Shalaya shouted to Newell to “be careful” because “Hackett just rolled up the street.” Hackett made a U-turn and drove back to Newell's house. He got out of his car, confronted Newell, and demanded to know why she had told the police that he had been involved with the earlier shooting. Newell responded that Hackett had been driving the black getaway car; Hackett said he had “nothing to do with nothing.” Then Newell started screaming at Hackett. Newell's other daughter, Shayla Perkins, ran to get her father, Sherman Perkins, who lived nearby.

The confrontation escalated. Sherman Perkins “came running up the street,” pistol in hand. He waved the gun in Hackett's face, yelling at Hackett to “stay away from my family.” Rather than retreat, Hackett flagged down an approaching car. When the car stopped, Hackett said something to the driver and then reached for a gun on the front seat. The driver resisted. Hackett wrestled the gun from the driver, wheeled toward Perkins, and fired, hitting Perkins and dropping him to the ground. The two men exchanged gunfire. Altogether, Hackett shot Perkins twice in the stomach and once in the arm; Perkins shot Hackett once in the stomach. Both men survived.

After the shooting, Newell's landlord forced her family to move, saying they were a danger to her neighbors. But the family's conflict with LSP continued. About four months later, around 4 a.m., someone threw a brick through the front window of Newell's new home. A Molotov cocktail followed, though the bottle bounced off the window without catching fire.

Later that same day, Newell was sitting on her neighbor's front porch when a friend came by and told Newell to “be careful. They are around the corner loading up.” Newell's son, Sherrick Jackson, was standing in her front yard. The “next thing” Newell knew, “cars came screeching around the corner.” The cars stopped and their passengers got out and started shooting. The shooters included Kerns, Callier, and another LSP member, Edward Campbell. Their bullets hit Sherrick in the ear and a bystander in the foot. The shooters fled.

C.

Reuben Robinson was a confidential informant who assisted the Youngstown Police Department in its investigation of LSP. Robinson was a former crack addict who could tell when someone was “geeked up” and looking for drugs. As an informant, Robinson would follow these people to drug houses, where Robinson himself would make controlled purchases of crack.

One of those houses was Hackett's drug house, which served between 20 and 30 customers a day. Typically, buyers would knock on the rear door, and Hackett or an associate would answer. Eventually, to accommodate “the high volume of traffic ... they would have you slide the money in a slot on the door and then hand you the product out.” Robinson was allowed inside the house, however, because he bought “volume dope.” During his visits, Robinson noticed security cameras around the house's perimeter and a 9mm pistol on the kitchen counter. He also saw a cooking pot, baking soda, and a tube—all commonly used to cook crack.

When he arrived at Hackett's drug house on April 13, 2010, Robinson was wearing a wire. Hackett told him that someone was “snitching” and that everyone who came to the house would be searched. Robinson let Hackett search him because he “didn't want to escalate the situation” and “thought it would be a simple search.” Instead, the search was “quite extensive,” reaching “underneath the shirt, trying to get down the pants.” Hackett found the wire. Derrick Johnson and another LSP member, Terrance Royal, were also at the house. Robinson was “outnumbered, caught with my drawers down so to speak.” Hackett asked Robinson what the wire was. Robinson told him it was a monitor for his irregular heartbeat.

Hackett was unconvinced. He ordered Johnson and Royal to gather up all the drugs. Robinson spoke a password into the wire to let his handlers know he was in trouble. Then Hackett, Johnson, and Royal began severely beating and kicking Robinson, dragging him down the back steps and towards a nearby garage as they did so. Robinson thought they would shoot him once they got there: “the guy next door had dogs, and they barked” so that “no one can see or hear anything.” Royal likewise testified that, once they got Robinson behind the garage, “[e]ither we was going to keep beating him up or probably [he] was going to get shot.” Robinson clung to a tree in the yard until the police arrived. His assailants ran away.

D.

A jury thereafter convicted Hackett of RICO conspiracy in violation of 18 U.S.C. § 1962(d), two counts of Violent Crimes in Aid of Racketeering (VICAR) in violation of 18 U.S.C. § 1959(a)(5), retaliation against a government witness in violation of 18 U.S.C. § 1513(a)(1)(B), and various other weapons and narcotics charges. The district court sentenced Hackett to a total of 440 months' imprisonment. This appeal followed.

II.

A.

Hackett first presents a Batson claim. During voir dire, the government exercised a peremptory strike against Juror 22, one of two African–Americans in the jury pool. Hackett challenged the strike under Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The district court denied Hackett's motion. Hackett argues that the court thereby deprived him of his right to a race-neutral jury selection.

“We review a district court's determination of a Batson challenge with great deference, under a clearly erroneous standard.” United States v. Copeland, 321 F.3d 582, 599 (6th Cir.2003) (quotations and citations omitted). A district court considers Batson challenges in three steps. First, the challenging party must establish a prima...