United States v. Jackson

• Decision Date: 04 August 2017
• Docket Number: No. 15-3693,15-3693
• Citation: 865 F.3d 946
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Douglas D. JACKSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

865 F.3d 946

UNITED STATES of America, Plaintiff–Appellee,

v.Douglas D. JACKSON, Defendant–Appellant.

No. 15-3693

United States Court of Appeals, Seventh Circuit.

Argued October 28, 2016

Decided August 4, 2017

David E. Hollar, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Hammond, IN, for Plaintiff–Appellee.

Jennifer Soble, Attorney, INDIANA FEDERAL COMMUNITY DEFENDERS, INC., Hammond, IN, for Defendant–Appellant.

Before Ripple, Kanne, and Rovner, Circuit Judges.

Rovner, Circuit Judge.

Douglas Jackson appeals following a jury trial at which he was convicted of three counts of transporting a minor in interstate commerce with the intent that she engage in illegal sexual activity, see 18 U.S.C. § 2423(a), three counts of sex trafficking of a minor, see 18 U.S.C. § 1591(a), and one count of possessing a firearm in furtherance of a crime of violence (sex trafficking of a minor), see 18 U.S.C. § 924(c). The district court sentenced Jackson to 295 months' imprisonment. He appeals, arguing that his conviction under § 924(c) is invalid because the portion of that statute applicable to his crime is unconstitutionally vague. He also challenges the district court's conclusion under the United States Sentencing Guidelines that he was a leader or supervisor of the offense, see U.S.S.G. § 3B1.1(1)(c), and that he obstructed justice when he testified on his own behalf, see U.S.S.G. § 3C1.1. For the reasons discussed below, we vacate Jackson's conviction under § 924(c) and vacate and remand for resentencing.

I.

Jackson met the minor victim, J.T., at a party in May of 2014, when J.T. was fifteen years old and Jackson was twenty- five. J.T., who was just finishing the 9th grade, told Jackson her actual age, but he claimed to be only seventeen. He asked her if she was interested in making some money, and then proceeded to buy her clothes and pay to have her hair and nails done.

Within several weeks, on June 6, 2014, Jackson drove the two of them in a rented car to Atlanta, Georgia, where J.T. had some family, including her father and siblings. Jackson paid for the two of them to stay for two nights in a hotel. He also used his cell phone and a prepaid credit card to post an ad in the Atlanta section of the classified advertising website "Backpage.com," which prior to January 2017 contained an adult section advertising different categories of sex work.¹ The title of the ad said, "Sexy star beautiful mixed puerto rican in town looking for a great time." The e-mail address connected to the ad was Jackson's e-mail, and the listed contact number was for a prepaid flip phone that Jackson had purchased. Jackson and J.T. used the prepaid cell phone to text customers, who were charged $150 for thirty minutes with J.T. or $200 for an hour.

On June 8th, Jackson and J.T. moved on to Louisville, Kentucky, basically repeating what they had done in Atlanta. The Backpage.com ad from Atlanta was reposted with only minor differences, and Jackson again paid for motels and food. While in Louisville, J.T. stayed with a customer beyond the allotted time frame, and Jackson began texting her. In response to Jackson's query, "Wtf is takin so long" J.T. texted back that the customer "spent another 15 mins." The call log reflected that Jackson attempted to call J.T. on the prepaid phone approximately fifteen minutes later, after which the following text exchange took place:

J.T.: I'm tryin to make him cum

Jackson: Bitch its a time limit not that he got to go now or I'm comin in

J.T.: Alright

Shortly after that encounter, Jackson's cell phone was used to repost the Backpage.com ad.

After their stay in Louiville, Jackson and J.T. returned briefly to South Bend, Indiana. Next they headed to Grand Rapids, Michigan with J.T.'s brother. After reserving a hotel in Grand Rapids, Jackson reposted the original Backpage.com ad, and J.T. responded to a call shortly before midnight at a local Super 8 motel. She returned to Jackson's car shortly after going into the hotel room and reported that the customer had been acting weird. While she was sitting with Jackson in the car, two police officers conducting a routine patrol approached. One of the officers testified that they frequently patrolled that Super 8 parking lot because it was often the site of drug and prostitution activity. The officers saw J.T.'s bare leg propped up in the driver's side of the car, and as they got closer to investigate, J.T. hastily exited the vehicle with her shorts unbuttoned and her underwear exposed. Jackson also sat up and got out, reaching toward the floorboard as he did so. One of the police officers shined his flashlight onto the car's floorboard, revealing a loaded Hi–Point .380 firearm, for which Jackson had an Indiana permit.

Jackson was arrested and J.T. was taken into police custody. Under initial questioning, J.T. maintained that she was simply joyriding and hanging out with Jackson and that she had never had sex with him or anyone else for money. When faced with the prospect of going into foster care, however, she admitted that she was in Grand Rapids for prostitution.

Based on alleged criminal conduct with J.T. on June 6, 2014, June 8, 2014, and June 13–14, 2014, Jackson was charged first by complaint in December 2014 with two counts of sex trafficking of a minor, see 18 U.S.C. § 1591(a). Then in February 2015, Jackson was ultimately indicted on three counts of knowingly transporting a minor in interstate commerce to engage in criminal sexual activity, see 18 U.S.C. § 2423(a) ; three counts of recruiting, enticing, harboring, transporting, providing, obtaining, and maintaining a minor in interstate commerce in order to engage in a commercial sex act, see 18 U.S.C. § 1591(a), and one count of possession of a firearm during a crime of violence, namely, sex trafficking, see 18 U.S.C. § 924(c).

At trial, both J.T. and Jackson testified, as well as several government witnesses involved in investigating the case. Contrary to her initial insistence to officers that she was not engaging in prostitution, J.T. testified at trial that prostitution was the intended purpose of the trips to Atlanta, Louisville, and Grand Rapids, and that she engaged in commercial sex acts in each city after Jackson posted the Backpage.com ads. J.T. also explained that she and Jackson split the proceeds evenly between them.

Jackson also testified, claiming that J.T. had told him when they met that she was nineteen and that he had truthfully told her that he was twenty-five. He also maintained that their trips were simply to travel and visit family and friends, and denied posting any advertisements on Backpage.com. Although he admitted knowing about the ads on Backpage.com, he claimed that J.T. posted them herself using his phone. He asserted that he assumed when she responded to the ads she was simply giving men massages or talking with them. He also denied knowing that there were condoms in his car and insisted that he had not received any money as a result of J.T.'s responses to the Backpage.com postings.

After being confronted with the text message exchange from Louisville, Jackson conceded knowing that J.T. had engaged in a sex act that time. But he insisted that he was upset about it and believed it to be a one-time occurrence.

The jury convicted Jackson on all counts. After trial, he filed a motion under Federal Rule of Criminal Procedure 29 seeking a judgment of acquittal on the charge under 18 U.S.C. § 924(c) of using a firearm in furtherance of a crime of violence, "to wit: sex trafficking of a minor." Section 924(c)(3) defines a "crime of violence" as any felony that (A) "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" (the "elements clause") or (B) "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (the "residual clause" or "risk-of-force clause"), id. at § 924(c)(3)(A), (B). Specifically, Jackson argued that § 924(c)(3)(B) was subject to the same deficiencies that had led the Supreme Court in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) to invalidate as unconstitutionally vague the similarly worded "residual clause" of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B).

The district court denied Jackson's motion after concluding that § 924(c)(3)(B)'s definition of "crime of violence" was distinguishable in several critical respects from the ACCA residual clause. In Johnson , the Court considered the provision in the ACCA mandating more severe penalties for a felon in possession of a firearm with three or more previous convictions of a "violent felony," defined in 18 U.S.C. § 924(e)(2)(B)(iii) as a felony that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." Johnson concluded the residual clause was unconstitutionally vague first because of the "grave uncertainty" in determining the risk posed by the generic "ordinary case" of a given crime and second, because the clause itself left uncertainty about how much risk was required for a crime to qualify as a violent felony. Johnson , 135 S.Ct. at 2257–58. The Court also noted its own repeated failures to "craft a principled and objective standard out of the residual clause" demonstrated its "hopeless indeterminancy." Id. at 2258.

The district court found Johnson's rationale inapplicable to § 924(c)(3)(B) for several distinct reasons. First, the district court noted that the Court in Johnson had been particularly troubled by the list of enumerated crimes in the ACCA, which added to the confusion in assessing what risk of injury was required given the wide disparity for potential harm between crimes on the list such as arson and extortion. See Johnson , 135 S.Ct. at 2558, 2559, 2561. The district court reasoned that the lack of such...