U.S. v. Jackson, 03-1638.
| Decision Date | 26 April 2004 |
| Docket Number | No. 03-1638.,No. 03-1723.,03-1638.,03-1723. |
| Citation | 365 F.3d 649 |
| Parties | UNITED STATES of America, Appellee, v. Michael JACKSON, Appellant. United States of America, Appellee, v. Fabian Jackson, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Michael Jackson, Mathew B. Tully, Hunter, NY, for appellant Michael Jackson.
William E. Shull of Liberty, MO, for appellant Fabian Jackson.
Bruce E. Clark, argued, Asst. U.S. Attorney, Kansas City, MO, for appellee.
Before BYE, LAY, and SMITH, Circuit Judges.
A jury convicted brothers Fabian and Michael Jackson of unlawfully possessing a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district court1 sentenced Michael to 327 months' imprisonment to run consecutively with two previous state sentences. The same court sentenced Fabian to 295 months' imprisonment. The Jacksons appeal their convictions and sentences. We affirm.
On the morning of March 1, 2002, Missouri resident James Lee returned to his home to find a white Chevrolet pickup truck2 backed up to his front door. Lee quickly realized that his home was being burglarized. Lee used his van to block the truck's escape path. When the men burglarizing the house saw Lee, one ran back into the house and the other ran to the truck and prepared to drive away. Lee saw his rifle sticking up in the floor board next to the driver of the truck. Fearing that the driver would hit his van, Lee pulled his vehicle back and allowed the truck to leave. The man in the truck drove around to the back of the house, and Lee observed him leave with another man in the truck. Lee immediately reported the burglary and identified the suspects as African-American males.
Deputy Jim Bank of the Clinton County, Missouri, Sheriff's Department immediately responded to the scene. Deputy Bank dispatched a description of the truck and the direction it was traveling. Sergeant Keith Trader of the Clay County, Missouri, Sheriff's Department and a Kearney Police Department unit encountered and began to pursue a truck matching that description as it sped past their position. The pursuit continued for some time with speeds in excess of ninety miles per hour. The pursuit ended when the truck left the highway, crossed two residential yards, and crashed into a fence.
Sergeant Trader saw the two suspects exit the truck, jump the fence, and run into a field. Sergeant Trader followed the men and immediately apprehended one suspect-identified as Fabian-who was hiding in a ditch near the crash site. The officers then began a search for the other occupant of the truck. They crossed a field and found the second suspect, Michael, lying in some woods across a road bordering the field. The officers also took Michael into custody. The police found a rifle and other personal property in the bed of the truck. Later, after observing Michael in a holding cell, Sergeant Trader identified Michael as the driver of the stolen truck based upon his earlier observation.
Fabian and Michael were each charged with one count for unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Because Michael had nine prior burglary convictions and Fabian had three burglary convictions and one assault conviction, the indictment also charged that the penalty-enhancement provisions of 18 U.S.C. § 924(e) applied to each defendant.
Michael moved to suppress the indictment, alleging that the police arrested him illegally because of his race and because Sergeant Trader's identification of him at the jail was impermissibly tainted. Following an evidentiary hearing on Michael's motion, the magistrate judge recommended its denial. The magistrate judge found that the police had probable cause to arrest Michael, who matched the description of the suspect involved in a high-speed chase and who was found hiding in a field a short distance from the crash site of the stolen white pickup truck. In addition, the magistrate judge found that Sergeant Trader's identification of Michael at the jail was not tainted by inordinate suggestibility because 1) the defense produced no evidence that Michael was the only African American in the holding cell, and 2) Sergeant Trader had a sufficient opportunity to observe Michael during the chase and identified him within half an hour. The district court adopted the magistrate's report and recommendation.
The Jacksons were tried on August 26, 2002, and convicted the next day. Lee testified and identified Michael as the driver of the truck that he saw in his driveway. Lee also identified the rifle found in the pickup as his stolen weapon and identified other items recovered from the pickup as possessions stolen from his residence. The district court entered judgment on March 6, 2003. Both timely appealed.
Michael raises two issues and Fabian raises one in this consolidated appeal.
Michael first argues that the district court erred in running his federal sentence consecutively, rather than concurrently, with his two state-court sentences.3 As to the Johnson County offense, Michael argues that this prior incident should have been taken into account in determining his base offense level. In doing so, he argues, U.S.S.G. § 5G1.3(b) required the court to run his federal sentence concurrent to his state sentences. As to the Clay County offense connected to this case, he argues that this was "fully taken into account" in calculating his sentence as evidenced in the presentence investigation report ("PSR"). We review the district court's interpretation of the guidelines de novo. United States v. Smith, 282 F.3d 1045, 1046 (8th Cir.2002).
Because Michael violated 18 U.S.C. § 922, the 18 U.S.C. § 924(e) enhancement applied.4 Consequently, U.S.S.G. § 4B1.4(a) specifically provides that Michael qualifies as an "armed career criminal." Michael possessed the firearm in connection with a crime of violence5 (burglary), and U.S.S.G. § 4B1.4(b)(3)(A) specifically sets his offense level at 34 with a criminal history category of VI under U.S.S.G. § 4B1.4(c)(2) (). Therefore, independent of his prior criminal conduct, Michael's possession of the gun in the connected burglary triggered this Sentencing Guidelines provision. The district court sentenced him to 327 months, which is within the Sentencing Guidelines range.
In addition, because Michael's base offense level was based only on his status as an armed career criminal and did not take into account the Johnson and Clay County crimes, U.S.S.G. § 5G1.3(b) does not apply. In a similar case, we stated:
Sentencing courts must follow the procedures set out in section 5G1.3 and impose a sentence accordingly. We conclude the district court correctly determined subsection (b) did not apply. Although that subsection allows adjustment for any prison time already served as a result of conduct fully taken into account in determining the sentence for the instant offense, Lyons' base offense level was solely the result of his armed-career-criminal status, and the Nevada offenses were not considered in the offense-level calculation. In addition, applying subsection (b) would defeat the goal of reasonable incremental punishment for the instant offenses. The district court's application of subsection (c)-making Lyons' federal sentence concurrent with the remainder of his unexpired state sentence-achieved the desired result of giving him some sentencing credit for the overlap in his state and federal offense conduct, and also of imposing some incremental punishment for the instant offenses.
United States v. Lyons, 47 F.3d 309, 311 (8th Cir.1995) (internal citations omitted); accord United States v. Terry, 305 F.3d 818, 825-826 (8th Cir.2002). As such, because Michael had at least three prior felony offenses independent of the Johnson and Clay County offenses, the district court properly sentenced Michael pursuant to U.S.S.G. § 5G1.3(c), which allowed the court to sentence in any manner it deemed necessary "to achieve a reasonable punishment for the instant offense." We find no error in Michael's sentencing.
Michael next argues that the district court erred in denying his motion to suppress Sergeant Trader's identification of him at the jail following his arrest. Michael argues that the identification procedure was 1) overly suggestive or unfair, and 2) created a substantial likelihood of irreparable misidentification. We review federal constitutional questions, such as out-of-court identification challenges, de novo. United States v. Johnson, 56 F.3d 947, 953 (8th Cir.1995).
In reviewing this claim, we first determine whether the identification procedure was impermissibly suggestive. "If it was, we must then determine whether, under the totality of the circumstances, the suggestive procedures created `a very substantial likelihood of irreparable misidentification.'" United States v. Murdock, 928 F.2d 293, 297 (8th Cir.1991) (quoting Manson v. Brathwaite, 432 U.S. 98, 116, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977)); accord United States v. Donahue, 948 F.2d 438, 441 (8th Cir.1991). The central question is "whether under the `totality of the circumstances' the identification was reliable" despite any suggestive or inappropriate pretrial identification techniques. Neil v. Biggers, 409 U.S. 188, 198, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Mack v. Caspari, 92 F.3d 637, 642-643 (8th Cir.1996), cert. denied, 520 U.S. 1109, 117 S.Ct. 1117, 137 L.Ed.2d 317 (1997). The relevant factors to "consider[] in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length...
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