United States v. Jackson , 452 F. App'x 51 ( 2011 )

10-4018-cr
United States v. Jackson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 22nd day of December, two thousand eleven.
PRESENT: GUIDO CALABRESI,
REENA RAGGI,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
Appellee,
v. No. 10-4018-cr
GREGORY JACKSON, a.k.a. G, a.k.a G-Money,
Defendant-Appellant,
JOBIE BANKS, a.k.a. Butch, TERRANCE REED, a.k.a.
Supreme, TODD GASTON, a.k.a. BT, SYLVESTER
TWINE, a.k.a. Twan, DARRIN POSEY, a.k.a. Just,
SHAMEEK SUGGS, LASHAWN EVANS, MELISA
SANABRIA, JOSEPH BURKS, ROMELL WILLIS,
WARREN DUNBAR, KELLY TUCKER,
Defendants.*
----------------------------------------------------------------------
*
The Clerk of Court is directed to amend the caption as shown above.
1
FOR APPELLANT: Alice L. Fontier, Dratel & Mysliwiec, PC, New York, New
York.
FOR APPELLEE: Susan Corkery, Stephen J. Meyer, Assistant United States
Attorneys, Of Counsel, on behalf of Loretta E. Lynch, United
States Attorney for the Eastern District of New York, Brooklyn,
New York.
Appeal from the United States District Court for the Eastern District of New York
(Dora L. Irizarry, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment entered on October 5, 2010, is AFFIRMED.
Defendant Gregory Jackson, who pleaded guilty to conspiracy to possess with intent
to distribute 50 grams or more of crack cocaine, see 21 U.S.C. §§ 841(a)(1), 846, appeals his
168-month prison sentence, a variance from his undisputed Guidelines range of 210 to 262
months, as both procedurally and substantively unreasonable. We review the challenged
sentence “under a ‘deferential abuse-of-discretion standard.’” United States v. Cavera, 550
F.3d 180, 189 (2d Cir. 2008) (en banc) (quoting Gall v. United States, 552 U.S. 38, 41
(2007)). We assume the parties’ familiarity with the facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Procedural Error
a. Insufficient Proof of Drug Possession on March 10, 2010
Jackson submits that the district court committed procedural error in failing sua sponte
to conduct a Fatico hearing, see United States v. Fatico, 579 F.2d 707, 713 (2d Cir. 1978),
to determine whether a preponderance of the evidence supported allegations in the
2
presentence report (“PSR”) that Jackson possessed crack cocaine on March 10, 2010, while
on bail in the instant case. It is worth noting at the outset that Jackson’s alleged crack
possession did not inform the district court’s Guidelines calculation. Rather, it influenced
the district court’s decision as to how much to vary downward from Guidelines that treat
crack cocaine crimes more harshly than powder cocaine crimes. We assume without
deciding that a decision regarding the extent of a downward variance, when infected by
clearly erroneous findings of fact, may be procedurally unreasonable. Cf. United States v.
Moe, 65 F.3d 245, 249–251 (2d Cir. 1995) (considering whether findings of fact supporting
upward departure were clearly erroneous). Absent such error, however, we would review
the variance here only for its substantive reasonableness. See United States v. Cavera, 550
F.3d at 189.
We identify no clear error of fact here. The law accords district judges “broad
discretion” in deciding what procedures to employ to resolve disputed facts at sentencing.
United States v. Duverge Perez, 295 F.3d 249, 254 (2d Cir. 2002). While a defendant has
a due process right to contest any facts that might be used to enhance his sentence, see United
States v. Lee, 653 F.3d 170, 174 (2d Cir. 2011), a defendant has no per se right to do so
through a full Fatico hearing, see United States v. Prescott, 920 F.2d 139, 144 (2d Cir. 1990).
Jackson’s March 10, 2010 possession of crack cocaine while on bail in this case, his attempt
to ingest the crack cocaine when confronted by the police, and his flight from the police were
all detailed in the PSR. Jackson and his counsel stated they had no objections to the PSR.
The district court was therefore entitled to rely on these facts without an evidentiary hearing.
See United States v. Jass, 569 F.3d 47, 66 (2d Cir. 2009).
3
Nor was a hearing required by Jackson’s subsequent protestation that the crack found
by the officers on March 10, 2010 “wasn’t mine[]” and that he was “found innocent” of crack
possession by a state court. Sentencing Tr. at 26–27. As the district court correctly
observed, the state charge resulting from the March 10 possession was adjourned in
contemplation of dismissal, which “doesn’t necessarily mean that [Jackson was] found
innocent.” Id. at 27. More to the point, the district court observed that it had reviewed the
government’s sentencing letter, which explained why it had decided not to file a U.S.S.G.
§ 5K1.1 motion despite Jackson’s undisputed cooperation. The government’s letter
described the events of March 10 in detail and reported that, after carefully questioning the
arresting officers as well as Jackson, the government found the officers’ account credible and
Jackson’s account not credible. The district court observed that its review of the
government’s letter and the PSR prompted it to reach the same conclusion, and further noted
that Jackson’s conduct duplicated past obstructive behavior, “where when you were caught
with the goods by the police officers, you tried to ingest the controlled substance that you had
at the time.” Id. at 31. On this record, which also indicated that Jackson dealt drugs on some
half-dozen other occasions when he was under court supervision, the district court was not
required to hold a Fatico hearing regarding whether Jackson possessed crack. See generally
United States v. Sisti, 91 F.3d 305, 312 (2d Cir. 1996) (recognizing sentencing court’s
authority to consider hearsay evidence as well as evidence of uncharged, withdrawn, or
acquitted conduct in determining sentence).
4
b. Consideration of Past Lenient Sentences
Jackson submits that the district court impermissibly and inexplicably increased his
sentence based on the leniency of his prior sentences. This argument misconstrues the
record. As explained herein, the record indicates that the district court granted Jackson a
variance, and it referenced his prior lenient sentences only to explain how concerns about the
need for deterrence informed its decision not to vary as far downward from the Guidelines
as it otherwise might have done. Cf. United States v. Diaz-Collado, 981 F.2d 640, 644 (2d
Cir. 1992) (“The Guidelines explicitly recognize that departures may be warranted when a
defendant’s previous sentences ha[ve] been ‘extremely lenient . . . for a serious offense.’”).
The district court properly began by calculating the Guidelines, which placed Jackson
at offense level 34 and at criminal history category IV, resulting in a sentencing range of 210
to 262 months’ imprisonment. The district court then reviewed the sentencing factors
specified in 18 U.S.C. § 3553(a), and decided to exercise its discretion to impose a non-
Guidelines sentence because of the Guidelines’ disparate treatment of crack cocaine and
powder cocaine offenses. See Kimbrough v. United States, 552 U.S. 85, 91 (2007).
Acknowledging that its discretion was cabined by a mandated statutory minimum prison
sentence of 120 months, the district court then proceeded to identify facts favorable and
unfavorable to Jackson in determining his final sentence.
In the latter category, the district court referenced the particularly “disturbing” fact
that Jackson “persist[ed] in engaging in criminal conduct” on numerous occasions when he
was “under a conditional discharge or a sentence of probation or parole.” Sentencing Tr. at
5
36. After detailing such occurrences, the district court explained that the need for adequate
deterrence pointed toward a sentence within the Guidelines range, “because I don’t know that
there is anything[] that . . . I have heard today or . . . seen in your background that tells me
that you are not going to do this again.” Id. at 38. The district court stated, however, that it
would not impose a sentence within the Guidelines range in light of Jackson’s cooperation
with the government, even though the government declined to file a § 5K1.1 motion. This
record demonstrates that the district court carefully considered a range of relevant,
permissible sentencing factors, and it shows no procedural error whatsoever.
2. Substantive Reasonableness
In the absence of procedural error, our review of Jackson’s 168-month sentence is
limited to substantive unreasonableness, which we will not identify except in “exceptional
cases” where a district court’s sentence “cannot be located within the range of permissible
decisions.” United States v. Cavera, 550 F.3d at 189 (internal quotation marks omitted).
That is not this case. The record demonstrates Jackson’s street-level dealing in an
organization that distributed at least 50 grams of crack cocaine. By statute, the district court
was required to sentence Jackson to a minimum 120-month prison sentence. See 21 U.S.C.
§ 841(b)(1)(A). A sentence four years higher than this minimum cannot be deemed outside
the range of substantive reasonableness in light of Jackson’s persistent recidivism even while
on court supervision, including his arrest for crack possession, attempted destruction of
evidence, and resisting arrest while on bail in the instant case.
6
Because we identify no merit in Jackson’s sentencing challenges, the judgment of
conviction is AFFIRMED.
FOR THE COURT:
CATHERINE O’HAGAN WOLFE, Clerk of Court
7