United States v. Jackson

• Decision Date: 22 April 2021
• Docket Number: Nos. 18-5676/6003,s. 18-5676/6003
• Citation: 995 F.3d 476
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jankie JACKSON (18-5676); Peter Combs (18-6003), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

995 F.3d 476

UNITED STATES of America, Plaintiff-Appellee,

v.Jankie JACKSON (18-5676); Peter Combs (18-6003), Defendants-Appellants.

Nos. 18-5676/6003

United States Court of Appeals, Sixth Circuit.

Argued: October 6, 2020

Decided and Filed: April 22, 2021

ARGUED: Gregory C. Sassé, Mentor, Ohio, for Appellant in 18-5676. Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, for Appellant in 18-6003. Amanda B. Harris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Gregory C. Sassé, Mentor, Ohio, for Appellant in 18-5676. Thomas W. Kidd, Jr., KIDD & URLING LLC, West Chester, Ohio, for Appellant in 18-6003. Amanda B. Harris, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Charles P. Wisdom, Jr., UNITED STATES ATTORNEY'S OFFICE, Lexington, Kentucky, for Appellee.

Before: DAUGHTREY, DONALD, and READLER, Circuit Judges.

AMENDED OPINION

CHAD A. READLER, Circuit Judge.

Jankie Jackson and Peter Combs pleaded guilty to participating in a cocaine distribution ring. Both defendants received elevated sentences, Jackson due to his role as a leader in the drug-distribution conspiracy, and Combs due to his alleged career-offender status. Seeing no error in Jackson's sentence, we affirm that aspect of the district court's judgment. Due to intervening circuit precedent, however, we reverse the district court's career-offender finding for Combs and remand for resentencing.

BACKGROUND

Jankie Jackson ran a cocaine distribution ring with customers in central and eastern Kentucky. Peter Combs joined Jackson's operation. The ring was eventually foiled when DEA agents and police made controlled purchases from Combs and other members of the ring and later arrested those up the distribution chain, including Jackson. Officers found a storage unit maintained by Jackson and an associate that contained a substantial amount of cocaine, marijuana, and other drug paraphernalia. Officers also recovered hundreds of thousands of dollars in cash from safety deposit boxes in Jackson's name.

Jackson and Combs were each indicted on charges of conspiracy to distribute cocaine, with Jackson receiving the additional charge of conspiracy to commit money laundering. Both defendants entered into plea agreements, which preserved their ability to challenge aspects of their respective sentences on appeal. Combs was sentenced to 188 months’ imprisonment and six years supervised release, and Jackson was sentenced to 192 months’ imprisonment and ten years supervised release.

Jackson's appeal, however, did not reach us in a traditional fashion. Despite his assurances to Jackson, Jackson's appointed trial counsel did not file an appeal within the required timeframe set by Federal Rule of Appellate Procedure 4(b). Nearly six months after the district court entered judgment, Jackson wrote a letter to the district court explaining that he wanted to appeal his sentence, and that the delay in doing so was attributable to his counsel. Three days later, the district court received another letter from Jackson to the same effect. The district court construed Jackson's initial letter as a pro se motion requesting leave to file a late appeal, and his second as a direct notice of appeal, which served to transfer the case to the Circuit. With the case now before us, we ordered Jackson to explain why his appeal should not be dismissed as untimely, an outcome for which the government made an appearance to support. Jackson again attributed the delay to his counsel's error.

While these events were unfolding in our Court, Jackson's request to file a late appeal (as construed by the district court from Jackson's initial letter) remained pending in the district court. Once the government's deadline to respond passed, the district court granted Jackson's unopposed request. The absence of the government's opposition in the district court, we then observed, raised the possibility that the government had waived the right to oppose Jackson's appeal as untimely in our Court. We left resolution of that question to this panel, in addition to any merits issues raised by Jackson and Combs. The government in turn withdrew its opposition to the timeliness of Jackson's appeal.

With the stage now set, we raise the appellate curtain on this two-act proceeding, first resolving Combs's appeal, and then Jackson's.

PETER COMBS'S APPEAL

Controlled Substance Offense . The district court determined that Combs was a "career offender," as that term is used in § 4B1.1 of the Sentencing Guidelines, which elevated Combs's sentence range from 37 to 46 months to 188 to 235 months. To qualify as a career offender under the Sentencing Guidelines, Combs must have had two or more prior convictions for a crime of violence or a controlled-substance offense. U.S.S.G. § 4B1.1. At sentencing, Combs's two prior offenses included Conspiracy to Distribute a Schedule II Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and trafficking in the second degree, in violation of Ky. Rev. Stat. § 218A.1413. The first issue for consideration is whether Combs's state felony offense qualifies as a "controlled substance offense" under the Guidelines. The district court held that the offense did so qualify, a decision we review de novo . United States v. Havis , 927 F.3d 382, 384 (6th Cir.) (en banc), reconsideration denied , 929 F.3d 317 (6th Cir. 2019).

In resolving whether Combs's drug offenses qualify him for career-offender status, we employ the now well-known, if not always well-loved, "categorical approach," applicable in this and other sentencing contexts. Cf. Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 1881, 204 L.Ed.2d 200 (2019) (Thomas, J., concurring) (stating that "the categorical approach ... is difficult to apply and can yield dramatically different sentences depending on where [the crime] occurred"); Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2258, 195 L.Ed.2d 604 (2016) (Kennedy, J., concurring) (noting the "stark illustration of the arbitrary and inequitable results produced by applying an elements based approach" to sentencing enhancements and arguing that "Congress could not have intended vast sentencing disparities for defendants convicted of identical criminal conduct in different jurisdictions"); see United States v. Galloway , 439 F.3d 320, 323–24 (6th Cir. 2006) (holding that, as relevant here, Armed Career Criminal Act decisions from the Supreme Court are "fully applicable to Sentencing Guideline cases"). We begin with the Guidelines, which describe the types of offenses that, for career-offender purposes, qualify as a "controlled substance offense" at sentencing. See U.S.S.G. § 4B1.2(b). We then compare those generic offenses to the least culpable elements of Combs's state offense to determine if the latter exceeds the conduct described in the Guidelines. Mathis , 136 S. Ct. at 2248. If Combs's Kentucky offense is no broader than the generic offenses, it qualifies as a "controlled substance offense." If, on the other hand, the state offense is broader than the generic offenses listed in the Guidelines, we employ other tools to assess whether the state offense qualifies for purposes of the career-offender enhancement. See id. at 2249 (explaining the "modified categorical approach").

With this framework in mind, we turn to the conduct proscribed by the Sentencing Guidelines. United States v. Garth , 965 F.3d 493, 495 (6th Cir. 2020). The Guidelines define a "controlled substance offense" as any felony "that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b). Compare that to the relevant aspects of Combs's predicate state offense. Garth , 965 F.3d at 495. Under Kentucky law, "[a] person is guilty of trafficking in a controlled substance in the second degree when ... [h]e or she knowingly and unlawfully traffics in ... [t]en (10) or more dosage units of a controlled substance classified in Schedules I and II that is not a narcotic drug." Ky. Rev. Stat. § 218A.1413. Kentucky law in turn defines "traffic" to mean "manufacture, distribute, dispense, sell, transfer, or possess with intent to manufacture, distribute, dispense, or sell a controlled substance." Id. § 218A.010(56).

Comparing the Guidelines definition of a "controlled substance offense" with Kentucky's "trafficking in a controlled substance" offense, we ask whether there is any daylight between the two. Garth , 965 F.3d at 496. Combs believes there is, because the Guidelines do not include the act of "transfer," which Kentucky law defines as "to dispose of a controlled substance to another person without consideration and not in furtherance of commercial distribution." Ky. Rev. Stat. § 218A.010(57). At first blush, that argument has some appeal. But Combs fails to consider that the Guidelines draw their definitions from the Controlled Substances Act, which paints a more complete picture of a "controlled substance offense." See 28 U.S.C. § 994(h)(2)(B) ("The Commission shall assure that the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized for categories of defendants in which the defendant is eighteen years old or older and ... has previously been convicted of two or more prior felonies, each of which is ... an offense described in section 401 of the Controlled Substances Act ( 21 U.S.C. 841 ) ...." (emphasis added)). Included in the generic offenses listed in the Guidelines is possessing a controlled substance with the intent to "distribute" the substance. U.S.S.G. § 4B1.2(b). Adding meat to that proverbial bone, the CSA defines "distribute" to mean to "deliver ... a controlled substance or a listed chemical." 21 U.S.C. § 802(11). And "deliver," the CSA tells us, "mean[s] the actual,...