United States v. Jackson

• Decision Date: 06 July 2017
• Docket Number: No. 16-1200, No. 16-1201,16-1200
• Parties: UNITED STATES of America, Appellant v. Carolyn JACKSON United States of America, Appellant v. John E. Jackson
• Court: U.S. Court of Appeals — Third Circuit

862 F.3d 365

UNITED STATES of America, Appellant

v.Carolyn JACKSON

United States of America, Appellant

v.John E. Jackson

No. 16-1200

No. 16-1201

United States Court of Appeals, Third Circuit.

Argued February 7, 2017

Filed: July 6, 2017

Mark E. Coyne, John F. Romano [Argued], Office of United States Attorney, 970 Broad Street, Room 700, Newark, N.J. 07102, Counsel for Appellants

Rubin M. Sinins, Herbert I. Waldman [Argued], Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, 505 Morris Avenue, Springfield, N.J. 07081, Counsel for Appellee in No. 16-1200

Louise Arkel [Argued], Carol Gillen, David A. Holman, Office of the Federal Public Defender, 1002 Broad Street, Newark N.J. 07102, Counsel for Appellee in No. 16-1201

BEFORE: MCKEE, COWEN, and FUENTES, Circuit Judges

OPINION OF THE COURT

COWEN, Circuit Judge.

John and Carolyn Jackson ("John" and "Carolyn") were convicted of conspiracy to endanger the welfare of a child and endangering the welfare of a child under New Jersey law—offenses that were "assimilated" into federal law pursuant to the Assimilative Crimes Act ("ACA"). The United States District Court for the District of New Jersey sentenced Carolyn to 24 months of imprisonment (as well as three years of supervised release). John received a sentence of three years of probation (together with 400 hours of community service and a $15,000 fine). The government appeals from these sentences.

We will vacate the sentences and remand for resentencing. Concluding that there is no "sufficiently analogous" offense guideline, the District Court declined to calculate Defendants' applicable sentencing ranges under the Guidelines. Although we adopt an "elements-based" approach for this inquiry, we conclude that the assault guideline is "sufficiently analogous" to Defendants' offenses of conviction. Furthermore, the District Court failed to make the requisite findings of fact—under the applicable preponderance of the evidence standard—with respect to this Guidelines calculation as well as the application of the statutory sentencing factors. We also agree with the government that the District Court, while it could consider what would happen if Defendants had been prosecuted in state court, simply went too far in this case by focusing on state sentencing practices to the exclusion of federal sentencing principles. Finally, the sentences themselves were substantively unreasonable.

I.

John, a major in the United States Army, and Carolyn, his wife, were the biological parents of three children, including "JJ." They also became the foster parents of three young children: Joshua (born on May 13, 2005), "J" (born on April 1, 2006), and "C" (born on April 7, 2008). The three children were eventually adopted. Joshua died on May 8, 2008.

Defendants were charged in a fifteen-count superseding indictment. These counts can be organized into three different categories: an assimilated state conspiracy charge, assimilated state substantive offenses, and substantive charges under federal law. These offenses occurred (at least in part) within the special maritime and territorial jurisdiction of the United States, i.e., at Picatinny Arsenal Installation in Morris County, New Jersey.

Count 1 charged John and Carolyn with conspiracy to endanger the welfare of a child—Joshua, J, and C—under N.J. Stat. Ann. §§ 2C:24-4a and 2C:5-2 —assimilated pursuant to the ACA. From August 2005 through April 23, 2010, Defendants, "for the purpose of promoting and facilitating conduct which endangered the welfare of a child, did agree with each other to engage in acts which constituted endangering the welfare of a child whom they had assumed responsibility for and accepted a legal duty to care for, namely, [Joshua, J, and C]." (A35-A36.) They carried out this conspiracy by, inter alia, physically assaulting the children with various objects and with their hands, withholding proper medical care (and failing to seek prompt medical attention for Joshua and C), withholding sufficient nourishment from the children (and adequate water from J and C), forcing J and C to consume food that caused them pain and suffering, such as red pepper flakes, hot sauce, and/or raw onion, causing C to ingest excessive sodium or sodium-laden substances, and employing cruel and neglectful disciplinary and child-rearing techniques.

Counts 2 to 12 and Count 15 charged offenses under assimilated New Jersey law for endangering the welfare of a child (and aiding and abetting such endangerment) in violation of § 2C:24-4a and 18 U.S.C. § 2. Specifically, Defendants allegedly caused harm to the children in various ways, made them "neglected" children, and children "upon whom cruelty had been inflicted, as defined in N.J.S.A. Sections 9:6-1 and 9:6-3." (A39-A49, A52.) Counts 2 and 7 alleged that Defendants withheld sufficient nourishment and food from Joshua and C, respectively. Counts 4 and 8 similarly alleged that they withheld adequate water from J and C and prohibited these two children from drinking water. Counts 3, 6, and 12 charged that Defendants "physically assault[ed] [Joshua, J, and C, respectively] with various objects and with their hands." (A40, A43, A49.) In Counts 5 and 9, it was alleged that Defendants forced J "to ingest hot sauce, red pepper flakes, and raw onion" (A42) and C "to ingest hot sauce and red pepper flakes" (A46). Count 10 claimed that Defendants "caus[ed] [C] to ingest excessive sodium and a sodium-laden substance while restricting [C's] fluid intake, causing [C] to suffer hypernatremia

and dehydration, a life threatening condition." (A47.) Count 11 then charged Defendants with withholding prompt and proper medical care for C's dehydration and elevated sodium levels. Finally, Count 15 alleged that Defendants withheld prompt and proper medical care for C's fractured humerus.

Defendants were also accused of assaulting C with a dangerous weapon with intent to do bodily harm (and aiding and abetting this assault) in violation of 18 U.S.C. §§ 113(a)(3) and 2 (Count 13) as well as with intentionally assaulting C (and aiding and abetting such an assault) resulting in serious bodily injury in violation of 18 U.S.C. §§ 113(a)(6) and § 2 (Count 14).

Trial commenced on April 13, 2015, and lasted 39 days.¹ At the close of the government's case, the District Court granted judgments of acquittal on Counts 13 and 14. On July 8, 2015, the jury returned guilty verdicts on Counts 1 to 12 as to Carolyn and on Counts 1, Counts 3 to 9, and Counts 11 to 12 as to John. Accordingly, both Defendants were acquitted on Count 15 (renumbered as Count 13), and John was found not guilty on Counts 2 and 10.

Using the offense guidelines for assault, U.S.S.G. § 2A2.3, and aggravated assault, U.S.S.G. § 2A2.2, the Probation Office calculated both Defendants' Guidelines range as 210 to 262 months. The government similarly calculated a sentencing range of 292 to 365 months. It sought sentences of 235 months for Carolyn and 188 months for John. A 10 1/2-hour sentencing was held on December 15, 2015. At the sentencing hearing, the District Court rendered an especially thorough ruling on the record. Declining to calculate a Guidelines sentence, it ultimately sentenced Carolyn to a term of imprisonment of 24 months (as well as three years of supervised release). John was sentenced to three years of probation (as well as 400 hours of community service and a $15,000 fine).²

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has appellate jurisdiction pursuant to 18 U.S.C. § 3742(b). As required by § 3742(b), the Solicitor General personally authorized the government to appeal.

This case implicates a number of rather unusual sentencing issues. This is not surprising because Defendants were not convicted and sentenced for committing enumerated federal crimes of the sort that federal courts consider on a regular basis. Instead, they were convicted and sentenced in federal court for state law offenses "assimilated" into federal law pursuant to a federal statute, the ACA. The ACA provides that:

Whoever within or upon any of the places now existing or hereafter reserved or acquired as provided in section 7 of this title, or on, above, or below any portion of the United States not within the jurisdiction of any State, Commonwealth, territory, possession, or district is guilty of any act or omission which, although not made punishable by any enactment of Congress, would be punishable if committed or omitted within the jurisdiction of the State, Territory, Possession, or District in which such place is situated, by the laws thereof in force at the time of such act or omission, shall be guilty of a like offense and subject to a like punishment.

18 U.S.C. § 13(a). This statute, which in its original form dates back to the 1820s, is designed to borrow state laws in order to fill gaps that exist in federal criminal laws with respect to criminal offenses that are committed on federal enclaves. See, e.g. , Lewis v. United States , 523 U.S. 155, 160-61, 118 S.Ct. 1135, 140 L.Ed.2d 271 (1998).

However, setting aside these special circumstances, we look to the generally applicable post-Booker sentencing process. The sentencing court must engage in the following three-step process: (1) calculate the defendant's (now advisory) Guidelines range; (2) formally rule on the parties' motions for departure and, if a motion is granted, state how the departure affects the Guidelines calculation; and (3) consider the statutory sentencing factors specified in 18 U.S.C. § 3553(a) and determine the appropriate sentence to impose. See, e.g. , United States v. Tomko , 562 F.3d 558, 567 (3d Cir. 2014) (en banc). We review sentences for both procedural as well as substantive reasonableness. See, e.g. , id.

III.

A. "Sufficiently Analogous" Offense Guidelines

We begin, as we must, with the Guidelines. Pursuant to U.S.S.G. § 2X5.1, the sentencing court, in cases where the offense is a felony for which no guideline expressly has been...