United States v. Jackson, 120517 FED6, 16-2415

Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
Attorney:Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant. Kate Zell, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.
Judge Panel:Before: GUY, MOORE, and ROGERS, Circuit Judges. RALPH B. GUY, JR., Circuit Judge, dissenting.
Opinion Judge:KAREN NELSON MOORE, CIRCUIT JUDGE.
Party Name:United States of America, Plaintiff-Appellee, v. Darryl Jackson, Defendant-Appellant.
Case Date:December 05, 2017
Docket Nº:16-2415
 
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United States of America, Plaintiff-Appellee,

v.

Darryl Jackson, Defendant-Appellant.

No. 16-2415

United States Court of Appeals, Sixth Circuit

December 5, 2017

         Appeal from the United States District Court for the Western District of Michigan at Grand Rapids. No. 1:16-cr-00083-1-Robert Holmes Bell, District Judge.

         ON BRIEF:

          Paul L. Nelson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Grand Rapids, Michigan, for Appellant.

          Kate Zell, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids, Michigan, for Appellee.

          Before: GUY, MOORE, and ROGERS, Circuit Judges.

          OPINION

          KAREN NELSON MOORE, CIRCUIT JUDGE.

         Guns have the potential to make a bad situation worse. In light of that reality, the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") prescribe harsher penalties for defendants who have "used or possessed any firearm or ammunition in connection with another felony offense." U.S.S.G. § 2K2.1(b)(6)(B). This case principally presents the question whether that sentencing enhancement applies to Defendant-Appellant Darryl Jackson, who made two pairs of separately negotiated sales-each including one sale of a small amount of drugs, one of a gun-to a government informant in close succession, but without bringing both a gun and drugs to either sale or having reason to anticipate that the first sale would beget the second. This case also presents the question whether the district court committed plain error by failing to consider sentencing-factor manipulation as a ground to reduce Jackson's sentence. Although we find no plain error with regard to sentencing-factor manipulation, we conclude, despite giving due deference to the district court, that Jackson did not use or possess either gun in connection with either sale of drugs within the meaning of § 2K2.1(b)(6)(B). We thus VACATE the application of the four-level enhancement under § 2K2.1(b)(6)(B) and REMAND this case for resentencing.

         I. BACKGROUND

         The facts in this case are not materially in dispute. On October 28, 2015, a confidential informant ("CI") in Grand Rapids, Michigan, told law enforcement that drugs were available for purchase from someone named "Dlite." R. 26 (PSR at ¶ 12) (Page ID #67). "Dlite" turned out to be Jackson, and nearly a month later, on November 23, an undercover agent drove the CI to a property in Grand Rapids to meet Jackson and purchase approximately a gram of heroin from him. R. 26 (PSR at ¶¶ 12-13) (Page ID #67). Jackson sold the CI the gram of heroin for $120. R. 35 (Plea Tr. at 13) (Page ID #127). After this exchange was completed, the CI told Jackson that the CI was "in a little bit of a pickle" and asked Jackson if he knew where the CI could "pick up a pistol." R. 24 (Gov't Obj. to PSR at 2) (Page ID #59). Jackson initially demurred, but soon indicated that he had a gun for sale. Id. The two negotiated a price of $400, and while the CI went to the undercover agent's car to obtain the full amount, id., Jackson "walked down [the street] to his own residence . . . to get the gun and then returned" to make the second exchange, R. 39 (Sentencing Tr. at 7) (Page ID #176); see also R. 39 (Sentencing Tr. at 9) (Page ID #178); R. 26 (PSR at ¶¶ 13-14) (Page ID #67).

         A few days later, on November 27, Jackson told the CI that he had another gun for sale. R. 26 (PSR at ¶ 15) (Page ID #67). The undercover agent again drove the CI to meet Jackson at the property where they had previously met, and the CI there purchased a second gun from Jackson for $500. Id. After the two had completed the exchange and Jackson had finished explaining to the CI how the gun worked, the CI asked Jackson if he wanted another customer to whom he could sell drugs. R. 24 (Gov't Obj. to PSR at 4) (Page ID #61). Jackson said that he did. Id. The CI indicated that this potential customer-the undercover agent in the car-had money to buy the drugs, and that Jackson could "come out to the car and meet him." R. 24 (Gov't Obj. to PSR at 5) (Page ID #62). The CI then left the property with the pistol and returned to the undercover agent's car. Id. "Shortly thereafter, the defendant also exited" the property, "walked to the same vehicle, and got inside." Id. Jackson "had a short conversation with the CI and the undercover agent and . . . sold the undercover agent one-half gram of heroin[], for $45." Id.; see also R. 35 (Plea Tr. at 20) (Page ID #134); R. 39 (Sentencing Tr. at 7-8) (Page ID #176-77).

         On December 17, 2015, law enforcement executed a search warrant on the two properties involved in these sales. At one, they discovered $3, 050 "and a plastic spoon with heroin residue." R. 26 (PSR at ¶ 17) (Page ID #67). At the other, they discovered a relative of Jackson's who "admitted to flushing a small quantity of marijuana and cocaine base down the toilet when he heard officers entering the residence." R. 26 (PSR at ¶ 18) (Page ID #68). The relative identified these quantities as "approximately $10.00 worth of marijuana and $25.00 worth of cocaine base" and said that they had been left on the kitchen table by Jackson. Id. No guns were recovered, and the relative stated that he had not ever seen Jackson with a gun. See id.

         In April 2016, Jackson was indicted on two counts of being a felon in possession of a firearm and two counts of distribution of heroin. R. 12 (Indictment) (Page ID #22-25). He pleaded guilty without a plea agreement. R. 35 (Plea Tr. at 2) (Page ID #116). On October 3, 2016, he was sentenced in the district court. R. 39 (Sentencing Tr. at 1) (Page ID #170). The Presentence Investigation Report ("PSR") that was prepared in advance of the hearing calculated Jackson's total offense level to be 25 and his criminal history category to be VI, recommendations that correspond to a suggested imprisonment range of 110 to 137 months. R. 26 (PSR at 22) (Page ID #85). The PSR included in this calculation a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for "us[ing] or possess[ing] a firearm in connection with another felony offense, to wit: Distribution of Heroin." R. 26 (PSR at ¶ 30) (Page ID #69). Jackson objected to this enhancement, arguing that "[t]he guns and the drugs were not connected in any way, except to the extent that Mr. Jackson sold each of them, at different times, to the CI." R. 23 (Def. Obj. to PSR at 2) (Page ID #57). At the sentencing hearing, Jackson's counsel reemphasized this objection, arguing: "In terms of the furtherance, there's no close proximity. There's no drugs and guns next to each other. They're basically separate transactions." R. 39 (Sentencing Tr. at 14) (Page ID #183).1

         The district court was not persuaded, stating that counsel was "talking about a production of a drug and a production of a gun from the same person on or about the same time, " R. 39 (Sentencing Tr. at 15) (Page ID #184), and concluding that "the basic framework of a felon in possession of a firearm and a distribution of heroin and the drug in connection with the sale of hard drugs is clearly met here, " R. 39 (Sentencing Tr. at 16) (Page ID #185). Nevertheless, the district court departed downward by ten months from the lower bound of the Guidelines' recommendation, imposing a sentence of 100 months. R. 39 (Sentencing Tr. at 25) (Page ID #194). Had the court ruled that the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was not applicable to Jackson, the recommended sentencing range, in light of Jackson's criminal history category of VI, would have been 77 to 96 months. See U.S.S.G. § 5A (sentencing table). Jackson appealed.

         II. DISCUSSION

         Jackson argues that the district court (1) improperly applied the four-level enhancement under §2K2.1(b)(6)(B) to his sentence, and (2) committed plain error by not detecting-and accordingly reducing his sentence on the basis of-sentencing-factor manipulation. For the reasons that follow, we agree with Jackson's first argument and deny his second.

         A. Standard of Review

         "We review a district court's sentence for procedural and substantive reasonableness, applying the abuse of discretion standard." United States v. Seymour, 739 F.3d 923, 929 (6th Cir. 2014). "Our review of procedural reasonableness includes determining whether the district court properly calculated a defendant's Guidelines range." Id.

         "In the specific context of the § 2K2.1(b)(6)(B) firearm enhancement, 'we review the district court's factual findings for clear error and accord due deference to the district court's determination that the firearm was used or possessed in connection with the other felony, thus warranting the application of the . . . enhancement.'" Id. (internal quotation marks omitted) (quoting United States v. Taylor, 648 F.3d 417, 432 (6th Cir. 2011)). "The government bears the burden of establishing the factors supporting this enhancement by a preponderance of the evidence." ...

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