U.S. v. Jackson, s. 98-3118

• Decision Date: 05 May 1999
• Docket Number: 98-3372,Nos. 98-3118,s. 98-3118
• Citation: 177 F.3d 628
• Parties: UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Demetrius JACKSON, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 628

177 F.3d 628

UNITED STATES of America, Plaintiff-Appellee, Cross-Appellant, v. Demetrius JACKSON, Defendant-Appellant, Cross-Appellee.

Nos. 98-3118, 98-3372.

United States Court of Appeals Seventh Circuit.

Argued Feb. 11, 1999.

Decided May 5, 1999.

Andrew B. Baker, Jr., Office of the United States Attorney, Dyer, IN, Kenneth M. Hays (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 98-3118.

Kenneth M. Hays (argued), Office of the United States Attorney, South Bend, IN, for Plaintiff-Appellee in No. 98-3372.

James F. Korpal (argued), Heppenheimer & Korpal, South Bend, IN, for Defendant-Appellant, Cross-Appellee.

Before CUMMINGS, ^* BAUER, and EVANS, Circuit Judges.

BAUER, Circuit Judge.

Defendant Demetrius Jackson ("Jackson") appeals his conviction for possession with intent to deliver crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2, and possession of crack cocaine, in violation of 21 U.S.C. § 844, and 18 U.S.C. § 2. He claims that the evidence presented to the jury was insufficient to support his conviction. The government cross-appeals, challenging the district court's decision not to sentence Jackson as a career offender under U.S.S.G. § 4B1.1. We affirm the conviction, vacate the sentence, and remand for re-sentencing.

I. Background

On January 22, 1998, the police pulled Jackson over for speeding. Also in the car, were David Anderson ("Anderson"), who was a passenger in the front seat, and Kanika Bradshaw ("Bradshaw"), who was riding in the back seat. Bradshaw, who claimed to have consumed two beers, was intoxicated. During the stop, the police noticed the corner of a clear plastic bag sticking out from under the middle armrest in the front seat. Upon request, Jackson signed a consent form and allowed the police to search his car, another example of how drugs must affect, in an adverse way, the normal instincts of self-preservation. The search revealed that the plastic bag under the armrest contained just over six grams of crack cocaine. The police also found Jackson's pager and a cell phone in the car. Jackson was carrying $812 dollars, including twenty-seven twenty dollar bills.

On the night of the traffic stop, Bradshaw (who initially told police that her name was Kanika Miller) gave a taped statement. In it, she claimed that when the police came up behind Jackson's car, Anderson told Jackson to "stuff this [stuff]." Anderson and Jackson then put something between the two front seats. Approximately one week later, Bradshaw accompanied Jackson to his lawyer's office, where she signed what purported to be an affidavit (although she was not sworn). In the document, Bradshaw claimed that she had accidentally picked up the wrong coat at a party, and had discovered the crack in her pocket when the police pulled up behind Jackson's car. She further claimed that it was she who had stuffed the drugs between the seats. At trial, however, Bradshaw testified that Jackson had pressured her into signing the "affidavit." She also testified that the statements in the document were untrue.

Douglas Radican ("Radican"), a member of the narcotics unit of the South Bend Police Department and a task force agent for the Drug Enforcement Administration ("DEA"), also testified at trial. He explained that, at street level, crack cocaine is typically sold in twenty dollar rocks. Therefore, people who distribute crack usually carry numerous twenty dollar bills. Radican also testified that six grams of crack yields approximately fifty to sixty rocks, for a total value of $1000-$1200. Since users generally can't afford to buy such large amounts of cocaine, six grams is considered "dealer quantity" or "distribution quantity." Finally, Radican testified that pagers and cell phones are "prime tools for people that are distributing crack." (Tr. 91.)

On June 2, 1998, a jury found Jackson guilty of one count of possession with intent to deliver crack cocaine, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2, and one count of possession of crack cocaine, in violation of 21 U.S.C. § 844, and 18 U.S.C. § 2. At sentencing, the district court held that Jackson's 1988 Class D felony conviction for criminal recklessness, under Ind.Code § 35-42-2-2, did not constitute a crime of violence. Therefore, the court found that Jackson had committed only one predicate offense (a 1993 conviction for reckless homicide), and declined to enhance Jackson's sentence under the career offender provision of the Sentencing Guidelines, U.S.S.G. § 4B1.1. On August 7, 1998, Jackson was sentenced to ninety-seven months of imprisonment and four years of supervised release.

On appeal, Jackson attacks his conviction on sufficiency of evidence grounds. The government cross-appeals to challenge the district court's determination that Jackson's criminal recklessness offense did not constitute a crime of violence.

II. Discussion

A. Sufficiency of Evidence

In making his sufficiency challenge, Jackson "faces a nearly insurmountable hurdle ... [in that] we consider the evidence in the light most favorable to the Government, defer to the credibility determination of the jury, and overturn a verdict only when the record contains no evidence, regardless of how it is weighed, from which the jury could find guilt beyond a reasonable doubt." United States v. Moore, 115 F.3d 1348, 1363 (7th Cir.1997) (internal quotation marks and citations omitted). Jackson's primary argument in support of his sufficiency challenge is that Bradshaw's testimony lacked credibility. Although Jackson concedes that "[q]uestions of witness credibility are reserved for the jury, and [the jury's] assessments will not be second-guessed by an appellate panel," United States v. Alcantar, 83 F.3d 185, 189 (7th Cir.1996), he points out that "[w]e will overturn a conviction based on a credibility determination ... when a witness's testimony was incredible as a matter of law," United States v. Saulter, 60 F.3d 270, 275 (7th Cir.1995).

To make the necessary showing that Bradshaw's testimony was unbelievable on its face, Jackson must demonstrate either that "it would have been physically impossible for [her] to observe what [s]he described, or [that it would have been] impossible under the laws of nature for those events to have occurred at all." Alcantar , 83 F.3d at 189. Jackson has chosen the first route. More specifically, he contends that Bradshaw was too intoxicated on January 22, 1998 to be capable of giving credible testimony about the events of that night. However, this contention is not adequately supported by the record. Although Bradshaw says that she was intoxicated, she also says that she drank only two beers. The record does not disclose the brand. Too bad. Furthermore, none of the evidence presented at trial suggests that Bradshaw was so intoxicated that she could not function. Bradshaw's testimony was not incredible on its face. As we have said before, "[w]hen a jury has chosen to credit crucial testimony with full knowledge of the many faults of the witness providing it, we have no basis to interfere." Id.

Jackson also argues that the jury should have interpreted Bradshaw's testimony to implicate Anderson alone, and that Jackson would not have allowed the police to search his car if he had known about the cocaine. These arguments suffer from the same defect as Jackson's attack on Bradshaw's credibility. It is the jury's job to choose among competing but reasonable interpretations of witnesses' testimony and to weigh evidence. We will not second-guess the jury's reasonable judgment on appeal. See United States v. Wallace, 32 F.3d 1171, 1173 (7th Cir.1994). It is clear that the government presented sufficient evidence from which a rational jury could have found Jackson guilty beyond a reasonable doubt.

B. Career Offender

We now move to the government's cross-appeal, which challenges the district court's refusal to enhance Jackson's sentence under the career offender provision of the Sentencing Guidelines. Section 4B1.1 of the Guidelines states:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

U.S.S.G. § 4B1.1. It is the third element that is at issue in this case. While both parties agree that Jackson's 1993 conviction for reckless homicide constitutes a crime of violence, they disagree about whether his 1988 conviction for criminal recklessness also constitutes a crime of violence. The Guidelines define "crime of violence" as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that--

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). It is indisputable that under Indiana law a Class D felony is punishable by more than one year of imprisonment. See Ind.Code § 35-50-2-7. Furthermore, the parties agree that criminal recklessness under Ind.Code § 35-42-2-2 does not have "as an element the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). Therefore, our inquiry must focus on whether Jackson's offense "involve[d] conduct that present[ed] a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). In making this determination, the Application Notes direct us to look to "the conduct set forth (i.e., expressly charged) in the count of which the defendant was...