United States v. Jackson, 062620 FED3, 18-2137

Docket Nº:18-2137, 18-2138
Opinion Judge:ROTH, CIRCUIT JUDGE
Party Name:UNITED STATES OF AMERICA, Appellant v. CAROLYN JACKSON UNITED STATES OF AMERICA, Appellant v. JOHN E. JACKSON
Judge Panel:Before: MCKEE, ROTH and FUENTES, Circuit Judges
Case Date:June 26, 2020
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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UNITED STATES OF AMERICA, Appellant

v.

CAROLYN JACKSON

UNITED STATES OF AMERICA, Appellant

v.

JOHN E. JACKSON

Nos. 18-2137, 18-2138

United States Court of Appeals, Third Circuit

June 26, 2020

NOT PRECEDENTIAL

Submitted under Third Circuit LAR 34.1(a) on March 15, 2019

Appeal from the United States District Court for the District of New Jersey (D.C. Criminal Action Nos. 2-13-cr-00290-001 and 2-13-cr-00290-002) District Judge: Honorable Katharine S. Hayden

Before: MCKEE, ROTH and FUENTES, Circuit Judges

OPINION [*]

ROTH, CIRCUIT JUDGE

The government appeals the District Court's amended judgments of sentence against John and Carolyn Jackson. The government argues that the District Court erred in three ways: (1) failing to apply the aggravated assault sentencing guideline to multiple counts of conviction, (2) failing to apply several sentencing enhancements, and (3) imposing substantively unreasonable sentences. We write only for the parties and assume their familiarity with the history of this case, which includes a prior government appeal and a remand for re-sentencing. For the following reasons, we will again vacate the amended sentences imposed by the District Court and remand for re-sentencing.

I1

In our prior opinion remanding this case to the District Court, we directed the District Court to "make the requisite findings of fact (under a preponderance of the evidence standard) in order to calculate [a Guidelines] range (which includes deciding whether the aggravated assault guideline applies . . .)."2

The Jacksons claim that the aggravated assault guideline does not apply because the government cannot identify particular assaults (aside from Count 10) that satisfy the requirements of the aggravated assault cross-reference. The District Court appeared to rely on this argument when it declined to apply the aggravated assault cross-reference to Counts 1, 3, 5, 6, 9, and 12 of the indictment. However, as described below, this argument runs contrary to the language of the Sentencing Guidelines as well as to the precedent of this Court.

The assault guideline-which we held in our prior opinion applies to the Jacksons' convictions-includes a cross reference to the aggravated assault guideline.3 Aggravated assault is defined, in relevant part, as any "felonious assault that involved . . . serious bodily injury."4 "Serious bodily injury," in turn, is defined as an "injury involving extreme physical pain or the protracted impairment of a function of a bodily member, organ, or mental faculty; or requiring medical intervention such as surgery, hospitalization, or physical rehabilitation."5

The District Court credited the testimony of Defendants' experts and found that the Jacksons did not cause each of the serious injuries suffered by the Jacksons' three adopted children (Joshua, "J," and "C"). This ruling turned the preponderance of the evidence standard on its head. The children suffered at least ten unusual and serious injuries while in the Jacksons' custody. For example, Joshua suffered, among other things: a fractured bile duct, a brain injury, a fractured skull, a fractured humerus, a fractured spine, and a gangrenous finger. (A3601.) As another example, C suffered, among other injuries, a fractured humerus and two bouts of acute hypernatremia. (A3802-03.) These serious injuries-each of which involved the protracted impairment of a bodily function or required hospitalization-should not be viewed in isolation, but rather must be examined together with the jury findings that the Jacksons were both guilty, beyond a reasonable doubt, of: • "physically assaulting Joshua . . . with various objects and with their hands," (Count 3)

"physically assaulting [J] with various objects and with their hands," (Count 6)

"physically assaulting [C] with various objects and with their hands," (Count 12)

"withholding adequate water . . . and prohibiting [J] from drinking water," (Count 4)

"withholding adequate water . . . and prohibiting [C] from drinking water," (Count 8)

"withholding prompt and proper medical care for [C's] dehydration and elevated sodium levels," (Count 11)

• "withholding sufficient nourishment and food from [C]," (Count 7)

• "forcing [C] to ingest hot sauce and red pepper flakes," (Count 9), and

• "forcing [J] to ingest hot sauce, red pepper flakes, and raw onion" (Count 5).[6]

When applying the preponderance of the evidence standard in this context, courts consider whether it is "more likely than not" that the conduct constituting aggravated assault occurred.7 Thus, the District Court should have analyzed, for example, whether it was more likely, on one hand, that the children suffered a variety of unusual physical injuries as a result of the Jacksons' physical assaults; or more likely, on the other hand, that the children suffered a variety of unusual physical injuries that were not caused by the Jacksons (in spite of jury findings that the Jacksons repeatedly assaulted all three children in a variety of ways). Similarly, the District Court should have considered whether not just one, but both, of C's bouts of hypernatremia were more likely to have been caused by the Jacksons' withholding of adequate water (for which they were convicted) or more likely to have been caused by some other hypothetical, unproven occurrence cited by the Defendants' experts.8

On review, we have concluded that the government adequately proved that several of the children's serious injuries were in fact caused by the Jacksons. Thus, we are "left with the definite and firm conviction that a mistake [was] committed" when the District Court failed to apply the aggravated assault guideline to counts other than Count 10.9

II

The government also argues that the District Court erred by failing to apply sentencing enhancements to the Jacksons for: (1) abuse of a position of trust, (2) more than minimal planning, and (3) obstruction of justice.[10]

The Sentencing Guidelines provide for a two-level offense enhancement when a defendant abuses a position of public trust.11 The government argues that the enhancement should apply to the Jacksons because they were entrusted to foster and to adopt the children by authorities in Oklahoma, Indiana, and New Jersey. This argument fails. The role of a parent (adoptive or otherwise) is not one of "public trust" because it is not "characterized by professional or managerial discretion."12

The Guidelines...

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