U.S. v. Jackson

• Decision Date: 29 October 2008
• Docket Number: No. 07-2421.,07-2421.
• Citation: 547 F.3d 786
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Codell JACKSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

547 F.3d 786

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

No. 07-2421.

United States Court of Appeals, Seventh Circuit.

Argued April 17, 2008.

Decided October 29, 2008.

Michael F. Iasparro (argued), Office of the United States Attorney, Rockford, IL, for Plaintiff-Appellee.

Paul Flynn (argued), Office of the Federal Defender Program, Chicago, IL, for Defendant-Appellant.

Before RIPPLE, MANION, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Codell Jackson was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court, focusing on Jackson's unusually extensive criminal history, imposed a sentence of 96 months' imprisonment, which exceeded the top of the advisory guidelines imprisonment range by 18 months. Jackson appeals, challenging the reasonableness of his sentence, and we affirm.

I. Background

In the early afternoon of November 1, 2006, Rockford, Illinois police officers approached a parked car on suspicion that the occupants possessed marijuana. One officer approached the driver's-side door, and Jackson, who was the front passenger in the vehicle, grabbed the gear shifter, put the car into gear, and instructed the driver to go. The car accelerated a few feet toward another approaching officer, who drew his firearm and shouted at the occupants to stop. The driver then stopped the vehicle but ignored officers' instructions to put it into "park," and officers physically removed him from the vehicle. While police handcuffed the driver, Jackson attempted to flee on foot, ignoring officers' instructions to remain in the vehicle. One officer attempted to stop Jackson, but he resisted, struggling with the officer and pulling away by wriggling out of his shirt. During the struggle, Jackson inadvertently dropped a loaded firearm (a 9mm semiautomatic handgun) that had been concealed on his person. He then fled on foot, but officers caught up to him, and after another struggle, successfully arrested him.

On November 14, 2006, a grand jury returned a one-count indictment charging Jackson, who had previously been convicted of a state felony offense, with knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The indictment also contained a forfeiture allegation regarding the handgun pursuant to 18 U.S.C. § 924(d)(1) and 28 U.S.C. § 2461(c). Jackson was appointed counsel, and on March 19, 2007, pursuant to a written plea agreement—in which the parties agreed on the relevant sentencing guidelines and the government retained the option to recommend any sentence of imprisonment it deemed appropriate—he pled guilty and admitted the forfeiture allegation.

The presentence report, to which Jackson did not object, indicated that the November 1 incident was neither his first brush with law enforcement nor his first attempt to resist arrest. Indeed, at the young age of 25, Jackson had already accumulated some 32 criminal history points (easily placing him in the highest possible criminal history category, VI) resulting from a variety of convictions, including four state convictions for resisting a peace officer. Jackson's other prior state convictions that factored into his criminal history score included: (1) several misdemeanor convictions, including convictions for criminal trespass, battery/domestic battery, failure to have a valid firearm owner's identification (FOID) card, driving with a suspended or revoked driver's license, and operating an uninsured vehicle; and (2) three felony convictions, including possession with intent to distribute cocaine within 1000 feet of a school, possession of a stolen vehicle, and possession of a firearm by a convicted felon. Because Jackson had a prior felony conviction for a controlled substance offense, and because the firearm involved in the instant offense was stolen, his base offense level was 22. See U.S.S.G. § 2K2.1(a)(4)(A), (b)(4)(A). Jackson received a three-level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1(a), (b), yielding an adjusted offense level of 19. With a criminal history category of VI and an offense level of 19, the presentence report indicated that Jackson's guidelines imprisonment range was 63-78 months, and the maximum possible term of imprisonment was 10 years. See 18 U.S.C. § 924(a)(2). Two days before the sentencing hearing, on June 6, 2007, the district court judge notified defense counsel to be prepared, in light of Jackson's unusually extensive criminal history (even for a Category VI defendant), for the court's consideration of an above-guidelines sentence.

At the June 8, 2007, sentencing hearing, the district court adopted the facts and the guidelines calculations as set forth in the presentence report. At the outset of the hearing, the court reiterated its intention to consider an above-guidelines sentence:

[T]he court is very concerned with the defendant's—not only his prior felonies, but he's committed parole violations in the past, and he's only 25 years old, and he has a history of dealing in drugs and fighting. Those are all things that the court would consider.

And considering the fact that he has 32 criminal history points, at least under the guidelines, that is—under 4A1.3, that is a possibility for or a consideration for an upward variance that his guideline range, which is determined in part by the criminal history category, it doesn't represent the true facts when you look at—I think he only needs 13 points or so to get a criminal history category of six, and he has more than double that.

The government then recommended a sentence at the high end of the guidelines imprisonment range. The government characterized Jackson's 32 criminal history points, which were more than double the number required (13) to put him in the highest criminal history category (VI), as an "astounding" number for a 25-year-old. The government also noted that, as detailed in the presentence report, Jackson had a history of fighting in jail and resisting arrest.

In response to the government's recommendation of a high-guidelines sentence and the court's indication that it might impose an above-guidelines sentence, Jackson's attorney argued for a sentence near the midpoint of the guidelines imprisonment range. He first pointed to U.S.S.G. § 4A1.3(a)(1), which indicates that an above-guidelines sentence may be warranted if "reliable information indicates that the defendant's criminal history category substantially under-represents the seriousness of the defendant's criminal history or the likelihood that the defendant will commit other crimes." Jackson's attorney emphasized that the Sentencing Commission deliberately chose to create § 4A1.3 instead of creating a criminal history category higher than VI. And he argued that none of the § 4A1.3-specified indicators of an under-representative criminal history category—such as prior sentences not used in computing the criminal history category, sentences of substantially more than one year imposed for independent crimes, or prior similar misconduct established by civil adjudication, see § 4A1.3(a)(2)(A), (B), (C)—were present. In response, the district court judge explained his understanding of the post-Booker role of § 4A1.3:

Let me just point out one other thing that earlier I had mentioned [§]4A1.3. That, of course, was when the guidelines were sort of mandatory, and I think that [§]4A1.3 is sort of blended into what the factors are under [§]3553(a).... I think that is one of the components where you look to the nature and circumstances of the offense and the history and characteristics of the defendant. So, that's what I consider as part of the history and characteristics, the fact of the number of criminal history points.... I only cite it [§ 4A1.3] to show that the upward departure, at least it's in there, but I think it's covered in the § 3553(a) factors, which are what I am considering.

Jackson's attorney responded by indicating his understanding that the sentencing court must, under post-Booker law, consider the guidelines, albeit "almost ... as an additional element within the [§]3553 [factors]," and the judge indicated that he agreed.

Jackson's attorney made several additional arguments. He noted that a within-guidelines sentence would significantly exceed any sentence Jackson had previously received. He pointed out that several of Jackson's criminal history points resulted from traffic offenses that could prove to be poor predictors of recidivism for more serious crimes. He noted that Jackson had been diagnosed in 1997 as "borderline intellectual functioning," which may have contributed to his problems with aggression. He also noted Jackson's youth at the time of his prior offenses and the possibility that he would mature. And finally, he pointed out that Jackson had earned a number of certificates for his completion of religious courses during his most recent jail stint in an attempt to reform himself. In sum, Jackson's attorney argued: that a within-guidelines sentence, which would significantly exceed any of his prior sentences, would adequately punish him and reflect the seriousness of his offense; that Jackson's high criminal history score was somewhat misleading because a number of traffic offenses contributed to that score; that Jackson's personal background and characteristics—including his youth, borderline intellectual functioning, and recent religious awakening—were factors mitigating against a longer sentence; and that the imposition of an above-guidelines sentence would be inconsistent with § 4A1.3.

The district court, in weighing the § 3553(a) factors, rejected these arguments. With respect to Jackson's multiple convictions for driving on a revoked/suspended license, the court noted that this showed that Jackson "continues to drive after he's been arrested and convicted for a serious violation," reflecting a "repeated pattern" of ...