762 F.3d 493 (6th Cir. 2014), 12-4428, United States v. Hackett

Docket Nº:12-4428
Citation:762 F.3d 493
Opinion Judge:KETHLEDGE, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAQUANN HACKETT, Defendant-Appellant
Attorney:David L. Doughten, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee. David L. Doughten, Cleveland, Ohio, for Appellant. Daniel R. Ranke, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.
Judge Panel:Before: SUHRHEINRICH, KETHLEDGE, and WHITE, Circuit Judges.
Case Date:August 07, 2014
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 493

762 F.3d 493 (6th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DAQUANN HACKETT, Defendant-Appellant

No. 12-4428

United States Court of Appeals, Sixth Circuit

August 7, 2014

Argued: May 8, 2014.

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[Copyrighted Material Omitted]

Page 495

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:11-cr-00101-1--Donald C. Nugent, District Judge.

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

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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 co-defendants 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, 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,

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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

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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...

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