USA. v. Jackson, 98-1909

• Decision Date: 02 September 1999
• Docket Number: No. 98-1909,98-1909
• Citation: 189 F.3d 655
• Parties: (7th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW JACKSON, also known as ELIJAH JACKSON, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 655

189 F.3d 655 (7th Cir. 1999)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ANDREW JACKSON, also known as ELIJAH JACKSON, Defendant-Appellant.

No. 98-1909

United States Court of Appeals, Seventh Circuit

Argued January 21, 1999

Decided September 2, 1999

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 CR 199--J.P. Stadtmueller, Chief Judge.

Before BAUER, COFFEY and MANION, Circuit Judges.

COFFEY, Circuit Judge.

On January 16, 1998, Andrew Jackson ("Jackson") pled guilty to a one- count indictment charging him with distributing in excess of 500 grams of cocaine, in violation of 21 U.S.C. sec. 841(a)(1) and 18 U.S.C. sec. 2. On April 2, 1998, Jackson was sentenced to 270 months' imprisonment, five years' supervised release, a $2,500 fine, and a special assessment in the amount of $100. On appeal, Jackson argues that the trial judge improperly classified him as a career offender; committed clear error in finding that he was neither a minimal nor minor participant pursuant to U.S.S.G. sec. 3B1.2; was unaware of his discretion to depart downward in the face of a career offender enhancement; and erred by allowing the government to enhance the defendant's sentence by filing a new Information based, according to Jackson, on his refusal to cooperate. We affirm.

I. BACKGROUND

In September 1997, the Milwaukee Police Department ("MPD") and the Milwaukee office of the Drug Enforcement Administration ("DEA") obtained information from a cooperating source ("CS") regarding Elijah Jackson, a.k.a. Andrew Jackson, and his alleged involvement in narcotics trafficking.¹ Based on the information provided by the CS, the MPD and DEA commenced a joint investigation into Jackson's alleged narcotics trafficking.

On September 14, 1997, MPD Detective Ray Weston met with Jackson at approximately 6:10 p.m. in the 4300 block of North 84th Street in Milwaukee to arrange for the purchase of one kilogram of cocaine. Jackson directed Detective Weston into the alley and the two proceeded into a nearby apartment.² Once inside the apartment, Jackson produced a package measuring 5" x 7" x 2". Jackson cut a "window" into the package which allowed Weston to observe a white chunky substance that he believed, based on his prior knowledge, training, and experience, to be cocaine. Weston then left the apartment, ostensibly to retrieve the necessary money. After Weston returned with a bag supposedly containing the money, DEA agents immediately and without a warrant entered the apartment and arrested Jackson.

Recovered from the apartment's kitchen table was a package fitting the description Detective Weston gave concerning the package he was intending to purchase from Jackson. A Cobalt- Thiocyanate field test was conducted on a small amount of the white chunky substance observed, revealing that it was cocaine. The cocaine weighed approximately 1,044 grams. The following drug paraphernalia and other items were seized in the apartment: 1) Plastic baggies and other packing material, including what appeared to be a clear plastic wrapper with duct tape which the agents believed was an empty kilogram wrapper. This wrapper was found in the garbage and was different from the one recovered on the kitchen table; 2) A size XL leather jacket containing six plastic baggies. Each baggie contained cocaine in the following amounts-- 13.3 grams, 13.4 grams, 27.4 grams, 12.4 grams, and 3.3 grams. Also contained in the jacket was a single paper fold containing cocaine weighing .9 grams and three other paper folds with cocaine weighing .9 grams, 1 gram, and .9 grams. The total weight of all these items, including packaging, is 87.8 grams; 3) A Tonica brand digital scale typically used to weigh cocaine; 4) Three cell phones; and 5) An electric coffee grinder which had white residue inside it.³ Additionally, a search of the 1981 four-door Mercedes Benz Jackson drove to the drug deal revealed $100 cash and two baggies containing marijuana.⁴ A search of Jackson's person revealed $954 cash and a pager. Additionally, when Jackson was processed at the Waukesha County Jail, the authorities recovered an elastic girdle which is commonly used to carry narcotics.

On October 28, 1997, a federal grand jury sitting in the Eastern District of Wisconsin returned a one-count indictment against Jackson, charging him with knowingly and intentionally distributing more than 500 grams of cocaine, in violation of 21 U.S.C sec. 841(a)(1) and 18 U.S.C. sec. 2. On the same date an arraignment and plea hearing was conducted and Jackson entered a plea of not guilty to the indictment. Shortly thereafter, the government filed an Information pursuant to 21 U.S.C. sec. 851, seeking to enhance Jackson's penalties based upon his prior drug convictions.

On January 16, 1998, Jackson changed his plea and pled guilty to the one-count indictment. Thereafter, a Presentence Investigation Report ("PSR") was ordered and prepared on February 27, 1998. The PSR recommended that Jackson be given an enhancement under the Career Offender Provision of the Guidelines because he had two previous felony convictions involving controlled substances.

On April 2, 1998, Jackson was sentenced to 270 months' imprisonment, five years' supervised release, a $2,500 fine, and a $100 special assessment. In so sentencing Jackson, the district court determined that he was a career offender, as defined by U.S.S.G. sec. 4B1.1; that Jackson was not entitled to a minimal or minor role adjustment; that the government properly filed a new Information under 21 U.S.C. sec. 851, enhancing Jackson's mandatory minimum and maximum penalties; and that there was no reason to depart downward.

II. ISSUES

On appeal, Jackson argues that the district court: 1) improperly classified Jackson as a career offender; 2) committed clear error in finding that Jackson was neither a minimal nor minor participant pursuant to U.S.S.G. sec. 3B1.2; 3) was unaware of its discretion to depart downward in the face of a career offender enhancement; and 4) erred by allowing the government to enhance his sentence by filing a new Information based, according to Jackson, on his refusal to cooperate.

III. ANALYSIS

A. Career Offender Provision

Jackson argues that his two prior convictions for controlled substance violations arose from the same course of conduct and should, therefore, be insufficient to trigger the career criminal provision. We review the district court's decision to sentence Jackson under the career criminal provision de novo. See United States v. Jackson, 177 F.3d 628, 632 (7th Cir. 1999).

Jackson's PSR outlined two previous controlled substance convictions which, as far as the underlying facts, Jackson does not dispute. The first of these two controlled substance violations occurred on February 2, 1978. On that date, Jackson was arrested for the charge of possession of heroin with intent to deliver after a police officer observed Jackson drop a small silver object on the ground. Presumably, Jackson was then stopped and frisked because the PSR notes, and Jackson does not dispute, that nine packets of heroin were then recovered from Jackson.⁵ On April 24, 1980, Jackson was sentenced to 14 years' imprisonment for possession of heroin with intent to deliver.

On November 30, 1978, Jackson was arrested and charged with delivery of heroin to an undercover police officer.⁶ Jackson was convicted, and on March 5, 1981, he was sentenced to 15 years' imprisonment to run concurrently with the 14-year sentence imposed in April of 1980. Jackson argues that because these two incidents were so close in time and involved the same drug they should be considered related and, therefore, he should not have been considered a career criminal.

The Sentencing Guidelines provide that a defendant is a "career offender" if he or she 1) was over the age of eighteen at the time of the instant offense; 2) is convicted of the instant offense, which is a felony involving either a crime of violence or a controlled substance offense; and 3) has at least two prior convictions involving either a crime of violence or a controlled substance offense. See U.S.S.G. sec. 4B1.1. Because career offender status hinges, in part, on the existence of two prior convictions, a central inquiry is whether the prior convictions were "related," because

[r]elated sentences are treated as only one conviction. Sentences are considered related if they were consolidated for trial or sentencing, unless separated by an "intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense)."

United States v. Coleman, 38 F.3d 856, 859-60 (7th Cir. 1994) (quoting U.S.S.G. sec. 4A1.2 Application Note 3) (emphasis added); cf. United States v. Hudspeth, 42 F.3d 1015, 1019-22 (7th Cir. 1994) (en banc) (discussing relatedness within the context of the Armed Career Criminal Act, 18 U.S.C. sec. 924(e)(1), and concluding that offenses are unrelated when they are distinct criminal episodes separated by the opportunity to desist from illegal activity); see also United States v. Joseph, 50 F.3d 401, 402 (7th Cir. 1995); United States v. Russell, 2 F.3d 200, 202 (7th Cir. 1993).

Jackson was initially arrested for possession of heroin on February 2, 1978. Almost ten months later, on November 30, 1978, Jackson was again arrested on heroin charges. Because Jackson was arrested for the first offense before he committed the second, the district court did not err in determining that his two previous drug convictions were unrelated and, therefore, in sentencing Jackson as a career offender.

B. Downward Departure

At sentencing, Jackson requested a downward departure from the career offender guideline range on the basis that his criminal history category overrepresented the seriousness of his criminal conduct and the likelihood that he would commit other crimes. See U.S.S.G. sec. 4A1.3. The district court, however, stated that...