United States v. Jackson , 244 F. App'x 727 ( 2007 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 07a0570n.06
Filed: August 9, 2007
No. 05-6884
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
CHARLES LAMONT JACKSON, ) EASTERN DISTRICT OF KENTUCKY
)
Defendant-Appellant. )
Before: MARTIN and ROGERS, Circuit Judges; and HOOD, District Judge.*
ROGERS, Circuit Judge. Charles Lamont Jackson appeals his sentence for violation of
the terms of his supervised release. Jackson admitted to multiple violations of the terms of his
federal supervised release, including being convicted of a new felony charge in state court. Jackson
raises three issues on appeal. First, he asserts that the district court erred in believing that the policy
statement in § 7B1.3(f) of the sentencing Guidelines required it to impose a sentence for the violation
of his supervised release that is consecutive to the ten-year sentence Jackson is now serving in Ohio.
Second, he argues that the district court erred by failing to consider the factors enumerated in 18
U.S.C. § 3553(a). Finally, he claims that his counsel provided him with ineffective assistance in the
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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USA v. Jackson
sentencing process, rendering his sentence invalid. Because the record reflects that the district court
did not recognize its discretion to impose a concurrent sentence, we reverse and remand for
resentencing.
In January of 1999, subsequent to a plea of guilty to the charge of possession of marijuana
with the intent to distribute, the federal district court sentenced Jackson to six months of
imprisonment, followed by supervised release for two years. In April of the following year, his
probation officer petitioned the district court for a warrant for Jackson, alleging several violations
of the terms of Jackson’s supervised release and recommending that his supervised release be
revoked. In a later violation report, Jackson’s probation officer noted that by committing a state
felony while on supervised released, Jackson had committed a Grade B violation of his federal
supervised release. Based on that violation and Jackson’s criminal history, the probation officer
calculated Jackson’s Guideline range to be 8-14 months; the officer recommended that the court
sentence Jackson to 14 months’ imprisonment to be served consecutive to his current state sentence
of ten years.
At an evidentiary hearing with the magistrate judge, and in later objections, Jackson admitted
that he violated various terms of his supervised release. During the hearing, Jackson’s attorney
stated that any sentence given for violation of supervised release must be imposed consecutively to
the state sentence he is currently serving, saying, “it’s my understanding under 7B1.3(f), any term
of imprisonment for this revocation has to run consecutive to any other sentence. Of course I’d like
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to argue that it would run concurrent, but if that’s the guideline and that’s the rules, that’s the rules.”
JA 52.
Neither the court nor either party corrected defense counsel’s error in suggesting that the
policy statement requiring a consecutive sentence was mandatory. However, in his “Objection to
the Report and Recommendation,” Jackson stated that he “feels that anything [i.e., the sentence] he
receives should run concurrent with his Ohio sentence . . . .” JA 26. The magistrate judge’s
Supplemental Report and Recommendation responded to Jackson’s request for a concurrent sentence
in part by stating that “because of U.S.S.G. § 7B1.3(f), [Jackson’s] term of imprisonment must be
served consecutively to the state sentence.” JA 29 (emphasis added). The district court adopted the
findings of fact and law in the Report and Recommendation and Supplemental Report and
Recommendation and sentenced Jackson to a consecutive 14 month sentence. JA 37.
Because it was Jackson’s counsel who told the district court that it did not have discretion
to enter a concurrent sentence, and because he did not raise any objection below, any error that may
have resulted from the court’s believing that it lacked discretion to impose a concurrent sentence is
subject to plain error review.1 United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998)
(“Where, as here, a criminal defendant has failed to object below, he or she must demonstrate that
1
The Government argues that Jackson “waived” this issue, however, it appears that the
Government is using waiver as a synonym of forfeiture inasmuch as the Government never suggests
that Jackson is forgoing a known right. See United States v. Denkins, 367 F.3d 537, 543 (6th Cir.
2004) (“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely
assertion of a right, waiver is the intentional relinquishment or abandonment of a known right. . . .
Mere forfeiture, as opposed to waiver, does not extinguish an ‘error’ under Rule 52(b).”).
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USA v. Jackson
the error was plain as defined by Fed.R.Crim.P. 52(b) before we may exercise our discretion to
correct the error.”). “To vacate a sentence for plain error, [the court] must find (1) an error that (2)
is plain, (3) affects substantial rights, and (4) seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Cousins, 469 F.3d 572, 580 (6th Cir. 2006).
The “Defendant bears the burden of proof on plain error review.” United States v. Robinson, 455
F.3d 602, 610 (6th Cir. 2006).
The record clearly suggests that the district court erroneously believed that the policy
statement limited its discretion to impose a concurrent sentence. In the Supplemental Report and
Recommendation, the magistrate judge stated that, “because of U.S.S.G. § 7B1.3(f), that term of
imprisonment must be served consecutively to the state sentence.” JA 29 (emphasis added).
Furthermore, this error was “plain” because it is clear that application of the policy statement is
discretionary. United States v. Sparks, 19 F.3d 1099, 1100-01 (6th Cir. 1994) (remanding a sentence
where the district court clearly failed to recognize its discretion under § 7B1.3(f)); United States
v. Green, 157 F. App’x 853, 857-58 (6th Cir. 2005) (unpublished) (same).
Because the plain error in this instance involved the court’s failure to recognize its discretion
under the Guidelines, prejudice is presumed for the purposes of appellate review. In United States
v. Barnett, 398 F.3d 516 (6th Cir. 2005), this court held that where a district court believed that the
Guidelines were mandatory there is a presumption of prejudice to the substantial rights of the
defendant, and a remand for resentencing is required. Id. at 527. Furthermore, “[t]his court has
previously held that treating the provisions of Chapter 7 as leaving a district court without discretion
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to impose a post-revocation sentence concurrently is reversible error requiring remand for
resentencing.” Green, 157 F. App’x at 858 (citing Sparks, 19 F.3d at 1101, and United States v.
Cohen, 965 F.2d 58 (6th Cir.1992)).
Because the district court’s error in treating the policy statements as mandatory requires
remand for the imposition of a new sentence, we need not reach Jackson’s argument that the district
court erred in its application of the § 3553(a) factors in imposing this sentence. Similarly, inasmuch
as Jackson’s ineffective assistance of counsel argument relies only on his counsel’s performance in
relation to the sentencing process, that issue is moot.
For the foregoing reasons we REVERSE Jackson’s post-revocation sentence and REMAND
for resentencing.
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