United States v. Jackson
| Decision Date | 27 September 2021 |
| Docket Number | CAUSE NO. 3:20-CR-76 DRL |
| Parties | UNITED STATES of America, Plaintiff, v. Khalil M. JACKSON, Defendant. |
| Court | U.S. District Court — Northern District of Indiana |
John M. Maciejczyk, Joel R. Gabrielse, Kimberly L. Schultz, Government Attorneys, US Attorney's Office, South Bend, IN, for Plaintiff.
Thomas William Patton, Public Defender, Federal Public Defender, Peoria, IL, Scott J. Frankel, Public Defender, Federal Community Defenders Inc., South Bend, IN, for Defendant.
SENTENCING MEMORANDUM
In 2019 and 2020, Khalil Jackson trafficked a minor to have sex for money. Between October 2019 and May 2020, he also posted online advertisements, with pornographic images of the minor, for the victim's prostitution services. He took her across state lines for prostitution work. After a trial, a jury found Mr. Jackson guilty on all five counts of a second superseding indictment—sex trafficking of a minor, see 18 U.S.C. §§ 1591(a)(1), (b)(2) ; production, transportation, and possession of child pornography, see 18 U.S.C. §§ 2251(a), (e) ; 2252(a)(1), (b)(1); 2252(a)(4)(B), (b)(2); and cyberstalking, see 18 U.S.C. §§ 2261A(2), 2261(b)(5).
The court must first calculate the guideline sentence correctly, then decide what is the right and reasonable sentence for this defendant. Nelson v. United States , 555 U.S. 350, 351, 129 S.Ct. 890, 172 L.Ed.2d 719 (2009) ; United States v. Garcia , 754 F.3d 460, 483 (7th Cir. 2014). The 2018 sentencing guidelines apply. See Peugh v. United States , 569 U.S. 530, 531, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ; U.S.S.G. § 1B1.11.
The government objects to ¶¶ 28, 38, 46, 55, and 60 of the presentence report for omitting an obstruction of justice enhancement. The guidelines add two levels when "the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction," so long as his obstructive conduct relates to his offense of conviction and any relevant conduct or a closely related offense. U.S.S.G.§ 3C1.1. The court employs this enhancement for several reasons.
First, the court applies this guideline's plain meaning. See United States v. Carnell , 972 F.3d 932, 939 (7th Cir. 2020). Nothing within the guideline imposes a materiality threshold—at least that the attempt to obstruct justice "materially hinder" the investigation or prosecution of the defendant's offenses. See U.S.S.G.§ 3C1.1. Mr. Jackson, well after his arrest, attempted to obstruct justice by calling a girlfriend to have her retrieve his phone and smash it—a phone he knew contained incriminating evidence material to the investigation.
Second, this "application note has no independent force." United States v. Rollins , 836 F.3d 737, 742 (7th Cir. 2016) (en banc ). The "application notes are interpretations of , not additions to , the [g]uidelines." Id. This application note is "authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, [the] guideline." Stinson v. United States , 508 U.S. 36, 37-38, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). The interpretation afforded the application note by the defense and the presentence report would erroneously read into the guideline something that isn't there.
Third, because Mr. Jackson made his attempt after his arrest, the "material hinderance" language is of no moment here. See, e.g., United States v. Waldon , 206 F.3d 597, 608-09 (6th Cir. 2000) (); United States v. Hankins , 127 F.3d 932, 936 (10th Cir. 1997) ().1 The application note interprets the guideline to require that the phone contain evidence "material" to the investigation, but not that Mr. Jackson "materially hindered" the investigation—not when his attempt occurred well after arrest. This "material hindrance" language exists in the interpretative note to distinguish what is often reflexive at the time of arrest from what is reflective well after arrest.
Fourth, the defense's interpretation goes too far. The debate becomes mired in a particular application note, but this note merely reflects one of a "non-exhaustive list of examples" of conduct to which the adjustment might apply. U.S.S.G. § 3C1.1 app. n.4. The various examples in this note aren't meant to be exclusive. And again, Mr. Jackson's conduct fits squarely within the guideline.
Fifth, to the extent the defense argues or the presentence report finds that this enhancement is inappropriate because Mr. Jackson could not have actually obstructed justice when law enforcement already possessed the phone, such a position has no bearing on attempted obstruction. Attempts are still criminal or enhancible even when they are impossible. See United States v. Wrobel , 841 F.3d 450, 456 (7th Cir. 2016) ().
The two-level enhancement applies because the defendant attempted to "destroy or conceal evidence that [was] material to an official investigation or judicial proceeding." U.S.S.G. § 3C1.1 app. n.4(D). The court sustains the objection accordingly.
Mr. Jackson objects to the inclusion of what he considers to be inflammatory comments made during an intake interview for anger management in ¶ 109 of the presentence investigation report. This has no effect on his sentence today, so the court overrules this objection as moot. See Fed. R. Crim. P. 32(i)(3)(B).
The court adopts as its own findings ¶¶ 1-27, 29-37, 39-45, 47-54, 56-59, and 61-160 of the presentence report, albeit amending the adjusted offense levels for each offense in accordance with the following guideline calculation based on the obstruction enhancement.
On count one, Mr. Jackson starts at level 30 because the victim was 17 years old. U.S.S.G. § 2G1.3(a)(2). The guidelines add eight more levels: two because he unduly influenced the victim to engage in prohibited sexual conduct, U.S.S.G. § 2G1.3(b)(2)(B) ; two because he used websites to place advertisements to entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor victim, U.S.S.G. § 2G1.3(b)(3) ; two because the offense involved the minor victim's repeated engagement in sex acts, U.S.S.G. § 2G1.3(b)(4) ; and two more because he attempted to obstruct justice, U.S.S.G. § 3C1.1. This leaves him at level 38 on this count.
On count two, Mr. Jackson starts at level 32 for his production of child pornography. U.S.S.G. § 2G2.1(a). The guidelines add eight levels: two because the offense involved the commission of a sexual act or sexual contact, U.S.S.G. § 2G2.1(b)(2) ; two because he knowingly engaged in distribution of child pornography to an internet website, U.S.S.G. § 2G2.1(b)(3) ; two because the offense involved the production of child pornography for the purpose of soliciting participation with a minor in sexually explicit conduct, U.S.S.G. § 2G2.1(b)(6)(B)(ii) ; and two more still because he attempted to obstruct justice, U.S.S.G. § 3C1.1. As adjusted, this count sits at level 40.
On counts three and four, Mr. Jackson starts at level 22 because he uploaded and distributed images of a minor victim to the internet and dating website. U.S.S.G. § 2G2.2(a)(2). The guidelines add thirteen levels to both counts: two because he distributed child pornography, U.S.S.G. § 2G2.2(b)(3)(F) ; five because he engaged in a pattern of activity involving a minor's sexual abuse or exploitation, U.S.S.G. § 2G2.1(b)(5) ; two because he used an interactive computer service to possess, transmit, and distribute child pornography, or to access with intent to view the material, U.S.S.G. § 2G2.2(b)(6) ; two because the offense involved at least 10 and not more than 150 images of child pornography, U.S.S.G. § 2G2.1(b)(7)(A) ; and two more because he attempted to obstruct justice, U.S.S.G. § 3C1.1. These counts thus sit at level 35 as adjusted.
On count five, Mr. Jackson starts at level 18 because he repeatedly left voicemails for the victim and her family that threatened harm. U.S.S.G. § 2A6.2(a). He receives two more levels because the offense involved a pattern of activity involving stalking, threatening, harassing, or assaulting the same victim, U.S.S.G. § 2A6.2(b)(1) ; and an additional two levels because he attempted to obstruct justice, U.S.S.G. § 3C1.1. His adjusted offense level on count five thus sits at level 22.
The grouping rules apply. See U.S.S.G. § 3D1.1 et seq. These rules group only counts three and four together. U.S.S.G. § 3D1.2(d). The guidelines thereafter assign units and add three levels to the highest offense level (40), resulting in grouped offense level 43. U.S.S.G. § 3D1.4.
The guidelines assess five criminal history points against Mr. Jackson for three prior sentences. He receives two additional points because he committed these federal offenses while under a criminal justice sentence for his 2018 marijuana conviction and 2019 battery conviction. U.S.S.G. § 4A1.1(d). These seven points place him in criminal history category IV. U.S.S.G. Chap. 5A.
The guidelines recommend a sentence of life imprisonment. U.S.S.G. Chap. 5A. The statutory range is 15 years to life on count one, 18 U.S.C. §§ 1591(a)(1), (b)(1) ; 15 to 30 years on count two, 18 U.S.C. §§ 2251(a), (e) ; 5 to 20 years on count three, 18 U.S.C. §§ 2252(a)(1), (b)(1) ; 0 to 10 years on count four, 18 U.S.C. §§ 2252(a)(4)(B), (b)(2) ; and, 0 to 5 years on count five, 18 U.S.C. §§ 2261A(2), 2261(b)(5).
The court decides this sentence under 18 U.S.C. § 3553(a) and Booker v....
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