U.S. v. Jackson

• Decision Date: 24 March 2011
• Docket Number: No. 09–1630.,09–1630.
• Citation: 635 F.3d 205
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Robert JACKSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

635 F.3d 205

UNITED STATES of America, Plaintiff–Appellee,

v.Robert JACKSON, Defendant–Appellant.

No. 09–1630.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 30, 2010.Decided and Filed: March 24, 2011.

ARGUED: Gary K. Springstead, Springstead Law Offices, P.C., Fremont, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee. ON BRIEF: Gary K. Springstead, Springstead Law Offices, P.C., Fremont, Michigan, for Appellant. Timothy P. VerHey, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.Before: SILER, CLAY, and GIBBONS, Circuit Judges.

OPINION

SILER, Circuit Judge.

Robert Jackson pled guilty to bank robbery pursuant to a plea agreement. Before his proffer interview, the government promised, “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” Jackson's presentence report (“PSR”), however, later contained several of his proffer statements. These were initially used in calculating his guideline sentence range, and the court relied on them in determining his specific sentence. Jackson now challenges both his guideline sentence range and the specific sentence imposed. For the reasons stated below, we AFFIRM the decision of the district court.

I.

An indictment was returned in the Western District of Michigan against Jackson and his co-defendant, Quentin Meux. The indictment stemmed from a bank robbery in which Meux and Glenn Porter entered a bank brandishing handguns and ordering everyone to the floor. Porter remained in the lobby of the bank, while Meux held a gun on the bank manager. Meux and Porter then fled with the money in a car driven by Jackson.

Jackson participated in a proffer interview, for which the government agreed, “No statements made or other information provided by your client during such proffer and discussion will be used directly against your client in any criminal case.” He also executed a plea agreement in which he agreed to cooperate in the investigation of the bank robbery and other crimes. This agreement provided that, “The United States agrees that the statements made by the defendant during his cooperation will be protected as provided by Sentencing Guideline § 1B1.8.”

Jackson pled guilty to bank robbery, pursuant to his plea deal. A PSR was then prepared for Jackson that contained information he provided during his proffer statement. The PSR revealed he was aware Porter possessed and used firearms during the robbery and that Jackson provided the gun Meux used. It also detailed other bank robberies in which Jackson had been involved, including one in which he entered a bank with a BB gun and another in which he drove the getaway car while Meux entered with a gun.

In calculating Jackson's guideline sentence range, the PSR assessed a six-level increase because Meux “otherwise used” a firearm by placing a gun to the bank manager's head and a two-level increase for the physical restraint involved in the same conduct. This resulted in a total offense level of 29. Jackson's guideline range for imprisonment was 108 to 135 months.

Jackson objected to this increase. He argued the conclusion Meux's conduct was a “reasonably foreseeable act[ ] ... in furtherance of the jointly undertaken criminal activity,” USSG § 1B1.3(a)(1)(B), was impermissibly based on his proffer-protected statements. The government agreed and used an FBI agent to establish an independent basis for his guideline range increase. The district court then overruled Jackson's objection, holding “the information with regard to the use of the guns was obtained by law enforcement before Mr. Jackson's proffer.” It sentenced Jackson to 120 months imprisonment, emphasizing that he 1) provided one of the guns used in the robbery, 2) had previously been a getaway driver for another armed bank robbery, and 3) participated in yet another bank robbery in which he entered with a BB gun. Jackson did not object to any of the information relied on by the court in determining his sentence.

II.

Jackson argues his proffer-protected statements were impermissibly used to increase his guideline sentence range.

“Legal conclusions regarding application of the United States Sentencing Guidelines are reviewed de novo, while factual findings are reviewed for ‘clear error.’ ” United States v. Hover, 293 F.3d 930, 933 (6th Cir.2002) (citing United States v. Raleigh, 278 F.3d 563, 566 (6th Cir.2002)).

United States Sentencing Guideline § 1B1.8 states,

Where a defendant agrees to cooperate with the government by providing information concerning unlawful activities of others, and as part of that cooperation agreement the government agrees that self-incriminating information provided pursuant to the agreement will not be used against the defendant, then such information shall not be used in determining the applicable guideline range, except to the extent provided in the agreement.

This provision “forbids the government to influence the sentencing range by disclosing revelations by a defendant in the course of cooperation as required by a plea agreement.” United States v. Miller, 910 F.2d 1321, 1325 (6th Cir.1990).

In justifying Jackson's eight-level increase due to the actions of Meux, the PSR specifically noted “Jackson admitted he furnished the weapon that Mr. Meux used” and that he had participated in another bank robbery in which “[Jackson] covered employees and customers in the lobby of a bank.” Had this information provided the basis for the enhancement that determined Jackson's ultimate guideline range, a violation of USSG § 1B1.8 would have occurred.

However, Jackson's guideline range can be sustained without the use of the impermissible proffer-protected information. The commentary to Sentencing Guideline § 1B1.3 specifically establishes Meux's conduct was reasonably foreseeable in setting out the following example:

Defendant C is the getaway driver in an armed bank robbery in which $15,000 is taken and a teller is assaulted and injured.... Defendant C is accountable for the injury to the teller under subsection (a)(1)(B) because the assault on the teller was in furtherance of the jointly undertaken criminal activity (the robbery) and was reasonably foreseeable in connection with that criminal activity (given the nature of the offense).

The PSR cited this illustration. Further, the government called an FBI agent to testify at the sentencing hearing to provide an independent source for the enhancement against Jackson.

Jackson also argues his guideline sentence increase is impermissible because, without the improper information initially relied upon in the PSR, he never would have received a higher guideline range, since the eight-level increase would never have been in issue. He further argues that the FBI agent's testimony was improper because it never would have been presented, but for his...