United States v. Jackson

• Decision Date: 23 February 2021
• Docket Number: Cr. No. 3:17-810-CMC
• Parties: United States of America v. SWAN NICOYIS JACKSON, Defendant.
• Court: U.S. District Court — District of South Carolina

United States of America v. SWAN NICOYIS JACKSON, Defendant.

Cr. No. 3:17-810-CMC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION

February 23, 2021

OPINION and ORDER

Swan Nicoyis Jackson ("Jackson") seeks relief pursuant to 28 U.S.C. § 2255, primarily claiming his guilty plea and conviction under 18 U.S.C. §§ 922(g)(1) and 924(a)(2), (e) for being a felon in possession of a firearm are invalid under Rehaif v. United States, 139 S. Ct. 2191 (2019), and therefore, should be vacated. ECF No. 63. The Government filed a motion for summary judgment in response. ECF No. 66. Jackson filed a reply. ECF No. 71. The Government filed a supplemental response, ECF No. 79, and Jackson again filed a reply, ECF No. 87. This matter is ripe for resolution.

I. Procedural Background

On September 6, 2017, a federal grand jury indicted Jackson on three different counts. ECF No. 2. Count 1 of the indictment ("the Indictment"), the sole count at issue in Jackson's instant § 2255 motion, charged him with being a felon in possession of a firearm, specifically charging:

That on or about June 2, 2017, in the District of South Carolina, the Defendant, SWAN NICOYIS JACKSON, having been convicted of a crime punishable by imprisonment for a term exceeding one year, knowingly did possess in and affecting commerce, a firearm, that is, a SCCY Industries, model CPX-1, 9mm handgun, which had been shipped and transported in interstate commerce;

In violation of Title 18, United States Code, Sections 922(g)(1), 924(a)(2) and 924(e).

Id. at 1. Count 2 charged him with possession with intent to distribute a quantity of marijuana, a Schedule I controlled substance, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D). Id. at 2. Count 3 charged Jackson with possessing a firearm in furtherance of a drug trafficking crime, as outlined in Count 2, in violation of 18 U.S.C. § 924(c)(1)(A)(i). Id.

On January 11, 2018, Jackson entered into a plea agreement ("the Plea Agreement") with the Government to plead guilty to Counts 1 and 2 in exchange for the Government moving to dismiss Count 3, provided he complied with all terms of the Plea Agreement.¹ ECF No. 42. Pursuant to Federal Rule of Criminal Procedure 11 ("Rule 11"), on January 25, 2018, Jackson pled guilty to Counts 1 and 2, pursuant to the Plea Agreement. ECF No. 45. The district court later dismissed Count 3 on the Government's motion. ECF No. 59. During the plea colloquy at Jackson's guilty plea hearing, the Government gave the following recitation of the facts it would be able to show if Jackson had elected to go to trial:

[T]he Government would be able to show that on June the 2nd, 2017, Kershaw County Sheriff's Office investigators were assisting a motorist in Elgin when a deputy on the way to work notified them that he saw two male subjects pacing around the intersection of Leslie Brown Road and Green Hill Road which is close to a neighborhood that's had several recent larceny and motor vehicle thefts.

Then a sergeant with Kershaw County drove up and said he had seen two males on Watts Hill Road near railroad tracks that fit the description that the priordeputy had given. The sergeant believed one was Mr. Jackson who deputies were familiar with due to prior arrests involving drugs and guns.

The investigators drove down Watts Hill Road and saw the two males walking down the middle of the railroad tracks. Both males started looking around as if getting ready to run and also began reaching around their waistbands and pockets and pants. They were told to stop. Each fled on foot.

The investigators gave chase and said they could smell raw marijuana coming from their direction. Eventually one of the investigators made contact and chased Mr. Jackson. Mr. Jackson fell down during the chase; and when the sergeant was able to catch him, he felt what he believed was a gun in Mr. Jackson's pants.

A subsequent search revealed an unloaded SCCY nine-millimeter handgun and 28.4 grams of marijuana which was subsequently tested in a lab and tested positive for marijuana, as well as $2300 in cash.

Mr. Jackson was then read his Miranda rights which he waived and admitted that he had bought the gun on the streets and knew he was a prohibited person but bought the gun after having some recent problems with several individuals. In addition to that, the gun was stolen. Investigation revealed the pistol was stolen two days prior to the incident. The handgun, the SCCY Model CPX-1 nine-millimeter handgun was made in Daytona Beach, Florida. So it traveled in interstate and foreign commerce.

In addition to this, before this date Mr. Jackson was convicted of a crime punishable by imprisonment for a term exceeding one year, including a possession of crack from 2013, as well as multiple distribution[] convictions from 2014. Finally, a review of South Carolina Probation, Pardon & Parole Services shows that Mr. Jackson has not received a pardon as of that date, Your Honor.

ECF No. 80 at 47-48.

Immediately following this factual recitation by the Government, the district court asked Jackson whether he agreed that, prior to June 2, 2017, he had already been convicted of a crime which could have carried a term of imprisonment exceeding one year. Id. at 48. Jackson answered affirmatively. Id. Additionally, in response to questions by the district court on Count 1, Jackson affirmatively agreed on that date he was in knowing possession of the firearm charged in theIndictment and such firearm was made outside the state of South Carolina in Florida. Id. Notably, in conducting the plea colloquy on Count 1, the district court followed then current law and did not advise Jackson that knowledge he had been convicted of a crime punishable by imprisonment exceeding one year at the time of his firearm possession on June 2, 2017, was an element of the offense. See United States v. Langley, 62 F.3d 602, 604-08 (4th 1995) (en banc) (holding defendant's knowledge of his felony status is not essential element of offense under §§ 922(g)(1) and 924(a)(2)), abrogated by Rehaif, 139 S. Ct. at 2194.

A Pre-Sentence Investigation Report ("the PSR") set forth all information necessary to calculate Jackson's advisory sentencing range under the United States Sentencing Guidelines ("USSG" or "the Guidelines"). The PSR calculated Jackson's Combined Adjusted Offense Level at 30. ECF No. 51 at ¶ 62. Additionally, the PSR concluded Jackson's criminal history qualified him for application of the Career Offender enhancement under USSG § 4B1.1, which resulted in an offense level of 24 and a criminal history category of VI. Id. at ¶ 63. The PSR also concluded Jackson qualified as an Armed Career Criminal, providing as follows:

The offense of conviction in Count One is a violation of 18 U.S.C. § 922(g), and the defendant has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions. Therefore, the defendant is an Armed Career Criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e). The offense level is 34, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), as the defendant used or possessed the firearm in connection with a controlled substance offense (Possession with Intent to Distribute a Quantity of Marijuana).

Id. at ¶ 64. With a three-level decrease for acceptance of responsibility, Jackson's total offense level under the Guidelines was 31. Id. at ¶ 67. Jackson's criminal history category of VI combined with his offense level of 31 to produce an advisory sentencing range under the Guidelines of 188to 235 months imprisonment. Id. at ¶ 84. Jackson made no written objections to the PSR. ECF No. 51-2.

For Jackson's young age of twenty-two at the time of his offense conduct as charged in the Indictment, he has an extensive criminal history starting at age eighteen. With respect to Jackson's criminal history, the PSR reported, inter alia, he had: (1) a July 2014 conviction for possession of less than one gram of cocaine base, first offense, for which he received an indeterminate sentence of imprisonment under South Carolina's Youthful Offender Act ("YOA"), S.C. Code § 24-19-50,² not to exceed five years, suspended on eighteen-months probation, ECF No. 51 at ¶ 29; (2) a July 2014 conviction for possession with intent to distribute a Schedule I, marijuana, or a controlled substance, first offense, for which he received an indeterminate sentence of imprisonment under South Carolina's YOA, not to exceed five years, suspended on eighteen-months probation, id. at ¶ 31; (3) a December 2014 South Carolina state court conviction for distribution of crack cocaine in close proximity to a school or park, for which he received an indeterminate sentence of imprisonment under South Carolina's YOA, not to exceed six years, suspended on eighteen-months probation, id. at ¶ 32; (4) a December 2014 South Carolina state court conviction for distribution of crack cocaine, first offense, for which he received an indeterminate sentence of imprisonment under South Carolina's YOA, not to exceed six years, suspended on eighteen-months probation, id.; (5) another December 2014 South Carolina state court conviction for distribution of crack cocaine, first offense, for which he received anindeterminate sentence of imprisonment under South Carolina's YOA, not to exceed six years, suspended on eighteen-months probation, id.; (6) a December 2015 South Carolina state court conviction for possession with intent to distribute marijuana, second offense, for which he received a five year sentence of imprisonment, suspended on time served (31 days), id. at ¶ 34; (7) a December 2015 South Carolina state court conviction for unlawful carrying of a pistol, for which he was sentenced to one year imprisonment, suspended on time served (31 days), id.; (8) a December 2015 South Carolina state court conviction for possession of less than one gram of cocaine base, third or subsequent offense, for which he...