United States v. Jackson
| Docket Number | 22-7015 |
| Decision Date | 18 September 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL DAVID JACKSON, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Submitted on the briefs: [*]
Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:20-CR-00108-RAW-1)
Joshua Sabert Lowther and Bingzi Hu, of Lowther Walker, Atlanta Georgia, for Defendant-Appellant.
Christopher J. Wilson, United States Attorney, Lauren S Zurier, Special Assistant United States Attorney, and Linda A. Epperley, Assistant United States Attorney, Office of the United States Attorney, Muskogee, Oklahoma, for Plaintiff-Appellee.
Before HARTZ, SEYMOUR, and MATHESON, Circuit Judges.
Michael David Jackson was convicted and sentenced for several offenses stemming from the sexual abuse of his young niece including two counts of possession of child pornography. On appeal Mr. Jackson argues, and the government concedes, that the possession convictions are multiplicitous and violate the Fifth Amendment's Double Jeopardy Clause. We agree and therefore remand to the district court with instructions to vacate one of these convictions. Mr. Jackson also contends that his sentence is procedurally unreasonable because the application of several sentencing enhancements constitutes impermissible double counting. He further asserts that his sentence is substantively unreasonable. Although the district court will have discretion to consider the entire sentencing package on remand, we reject these challenges and conclude that the sentence imposed is both procedurally and substantively reasonable.
Mr. Jackson, a member of the Cherokee Nation, was indicted on six counts stemming from sexual encounters he had with his niece F.J., who was less than twelve years old at the time. Specifically, F.J. reported to law enforcement that Mr. Jackson molested her on various dates between May and December 2019 while he was babysitting her. F.J. also alleged Mr. Jackson took sexually explicit photographs of her and produced a video of them engaged in sexual conduct. A forensic examination of Mr. Jackson's cell phone conducted months after he was interviewed concerning these allegations determined that he self-produced and possessed almost two dozen images of F.J. engaged in sexually explicit conduct. All relevant conduct occurred within the Cherokee Nation Reservation.
Counts One and Three of the indictment charged Mr. Jackson with aggravated sexual abuse in Indian country in violation of 18 U.S.C. §§ 1151, 1153, 2241(c), and 2246(2)(A). Count Two charged Mr. Jackson with aggravated sexual contact with a child under 12 years old in violation of 18 U.S.C. §§ 1151, 1153, 2244(a)(5), and 2246(3). Count Four charged Mr. Jackson with sexual exploitation of a child/use of a child to produce a visual depiction in violation of 18 U.S.C. § 2251(a) and (e). Counts Five and Six charged Mr. Jackson with possession of certain material involving the sexual exploitation of a minor in violation of 18 U.S.C. § 2252(a)(4) and (b)(2). These two counts concerned the same conduct, occurring from May 2019 until March 2020, but had different jurisdictional elements: Count Five alleged that the conduct occurred in Indian country in violation of 18 U.S.C. §§ 1151 and 2252(a)(4)(A), whereas Count Six alleged that the conduct involved materials transported in interstate commerce in violation of 18 U.S.C. § 2252(a)(4)(B).
Mr. Jackson moved to dismiss Count Five or Six, arguing that they were multiplicitous because they differed only on the jurisdictional element.[1] The government opposed the motion, and the district court denied it, concluding that the two counts were not multiplicitous under the test set forth in Blockburger v. United States, 284 U.S. 299 (1932). The court further concluded that multiplicity issues could be remedied with proper jury instructions or at sentencing.
Mr. Jackson proceeded to trial, where he was found guilty on all six counts. At sentencing, the district court overruled Mr. Jackson's various objections to the presentence report ("PSR"), described in relevant part below, resulting in a total offense level of 43 and a guideline range of life. Mr. Jackson requested a downward variance, but the court sentenced him to life imprisonment on each of Counts One, Two, and Three, 360 months' imprisonment on Count Four, and 240 months' imprisonment on both Counts Five and Six, all to run concurrently.
Mr. Jackson argues that his convictions on the two possession charges, Counts Five and Six, violate the Double Jeopardy Clause. In denying Mr. Jackson's motion to dismiss, the district court applied the Blockburger test and concluded that Counts Five and Six were not multiplicitous because each required the government to prove a unique element-i.e., Count Five required the government to prove that the offense took place in Indian country and Count Six required the government to prove that materials affecting interstate commerce were used. On appeal, the government concedes that the Blockburger test does not apply and urges us to remand to the district court with instructions to vacate either Count Five or Count Six. Factual findings underlying a double jeopardy claim are reviewed for clear error, but the ultimate legal determination regarding double jeopardy is reviewed de novo. United States v. Leal, 921 F.3d 951, 958 (10th Cir. 2019).
The Double Jeopardy Clause provides that no person shall "be subject for the same offence to be twice put in jeopardy." U.S. Const. amend. V. This guarantee provides protection against both multiple prosecutions and multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688 (1980). The defendant carries the burden of proving that the Double Jeopardy Clause has been violated. Leal, 921 F.3d at 959. "When the government charges a defendant under separate statutes for the same conduct, the [Blockburger test] determines whether the crimes are the 'same offense' for double jeopardy purposes." Id. at 960. "But . . . the Double Jeopardy Clause also provides a distinct protection for defendants who have been charged with violating the same statute more than one time when they have in fact only violated it once." United States v. Mier-Garces, 967 F.3d 1003, 1012 (10th Cir. 2020) (emphasis in original). In these cases, we use statutory interpretation to determine congressional intent rather than employing the Blockburger test. See United States v. Johnson, 130 F.3d 1420, 1425-26 &n.2 (10th Cir. 1997); Sanabria v. United States, 437 U.S. 54, 70 (1978) ().
Mr. Jackson was charged under two subsections of 18 U.S.C. § 2252(a)(4), which makes it a crime for any person who:
(emphasis added). The plain natural reading of the text of the statute, particularly with its disjunctive structure, demonstrates that Congress did not intend for subsections (A) and (B) to create two distinct offenses. See Johnson, 130 F.3d at 1425-26 (); United States v. Rigas, 605 F.3d 194, 208 (3d Cir. 2010) (en banc) (). Rather, the statute establishes two ways to commit one offense: either by possessing child pornography in a federal enclave or Indian country or possessing child pornography transported or produced using interstate commerce. These are two separate jurisdictional hooks allowing Congress to criminalize possession of pornography, not two separate offenses. Both subsections identify the same types of materials and criminalize possession of one or more depictions of minors engaged in sexually explicit activity.
Here, Counts Five and Six allege violations of subsections (A) and (B), respectively. As charged in the indictment, these counts cover the same conduct, occurring during the same time period. Accordingly, convictions on both counts violate double jeopardy, and the district court must vacate one of these convictions on remand.
Under the "sentencing package" doctrine, "after we vacate a count of conviction that is part of a multi-count indictment, a district court 'possesses the inherent discretionary power' to resentence a defendant on the remaining counts de novo unless we impose specific limits on the court's authority to resentence." United States v. Hicks, 146 F.3d 1198, 1202 (10th Cir. 1998) (quoting United...
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