United States v. Douglas Jackson ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted January 5, 2021*
Decided January 6, 2021
Before
DIANE S. SYKES, Chief Judge
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
Nos. 20-1444 & 20-1536
UNITED STATES OF AMERICA, Appeals from the United States District
Plaintiff-Appellee, Court for the Northern District
of Indiana, South Bend Division.
v. No. 3:15CR06-001
DOUGLAS D. JACKSON, Robert L. Miller, Jr.,
Defendant-Appellant. Judge.
ORDER
Douglas Jackson stands convicted of sexually trafficking an underage girl. He
brings two appeals, which we have consolidated for decision. First, in appeal
No. 20-1536, he seeks a certificate of appealability for a collateral challenge to his
conviction, arguing that his trial counsel was ineffective for not seeking a judgment of
acquittal based on improper venue. Second, in No. 20-1444, Jackson directly appeals his
sentence, repeating his objection to venue and also arguing that the district court
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
Nos. 20-1444 & 20-1536 Page 2
impermissibly calculated the advisory guidelines range based on facts not found by a
jury. We deny his request for a certificate of appealability because venue was proper,
and we affirm his sentence because the court correctly computed his guidelines range.
A jury convicted Jackson in 2014 of sexually trafficking a minor, see 18 U.S.C.
§ 1591(a), trafficking her across state lines, see id. § 2423(a), and carrying a firearm
during the offense, which the prosecution charged as a “crime of violence” under the
residual clause of 18 U.S.C. § 924(c). At trial, the victim testified that she met Jackson at
a party in South Bend, Indiana, where he enticed her to engage in prostitution. He then
drove her from South Bend to Georgia, Kentucky, and Michigan, for her to engage in
illicit sex. At sentencing, the court calculated a guidelines range (of 235 to 293 months in
prison) that included enhancements for obstructing justice, see U.S.S.G. § 3C1.1, and
supervising the offense, see id. § 3B1.1(c). The firearm charge also carried a mandatory
60-month prison term to run consecutively. The district court sentenced Jackson to 295
months in prison, the bottom of the advisory guideline range plus the mandatory term.
Jackson attacked his conviction and sentence in three ways. First, he directly
appealed on limited grounds. He challenged the residual clause of the firearm provision
as unconstitutionally vague, and he contested the factual basis of the supervisor and
obstruction-of-justice enhancements. We vacated the firearm conviction, remanded for
resentencing without the supervisor enhancement, and upheld the increase for
obstructing justice. United States v. Jackson, 932 F.3d 556, 558 (7th Cir. 2019); United States
v. Jackson, 865 F.3d 946, 956 (7th Cir. 2017), vacated, 138 S. Ct. 1983 (2018).
Second, while the first appeal was pending, Jackson sought collateral relief to his
conviction and sentence. See 28 U.S.C. § 2255. He argued that his trial counsel was
ineffective for failing to seek a judgment of acquittal based on improper venue. The
district court denied this request because, it reasoned, under 18 U.S.C. § 3237(a), venue
in a trafficking crime that involves several states is proper where the victim is trafficked
from. Jackson transported his victim from South Bend (part of the Northern District of
Indiana) to be prostituted in other states. Because counsel could not have successfully
attacked venue, the district court concluded that counsel was not deficient.
Third, at resentencing after our remand from the direct appeal, Jackson reiterated
his venue objection and added new arguments. Invoking Booker v. United States, 543 U.S.
220, 232 (2005), Jackson contended that the six-level adjustment for using a computer,
see U.S.S.G. § 2G1.3(b)(3), committing a commercial sex act, see id. § 2G1.3(b)(4), and
obstructing justice, see id. § 3C1.1, violated the Sixth Amendment. He believed that the
Nos. 20-1444 & 20-1536 Page 3
district court impermissibly based those enhancements on facts not found beyond a
reasonable doubt by a jury. The district court declined to rule on his venue objection
because it had already denied his 28 U.S.C. § 2255 motion and a venue attack is not a
ground for contesting a sentence. For the Booker-based arguments, the court concluded
that Jackson had likely waived them by failing to raise them in his first appeal; in any
case, because the enhancements did not affect his maximum sentence of life
imprisonment, the Sixth Amendment was respected. Once it resolved these objections,
the court imposed its sentence: Based on an advisory guidelines range of 188 to 235
months, the court sentenced Jackson to a below-guidelines prison term of 168 months.
We first address appeal No. 20-1536 in which, to proceed with his collateral
attack, Jackson must receive a certificate of appealability. To obtain that certificate,
Jackson has to make “a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). He argues that, because the prostitution occurred outside of
Indiana, his counsel was constitutionally ineffective for failing to seek a judgment of
acquittal based on improper venue. But, as the district court observed, where criminal
acts occur in more than one place—like the trafficking offenses here—venue is proper
“in any district in which such offense was begun, continued, or completed.” 18 U.S.C.
§ 3237(a); see United States v. Muhammad, 502 F.3d 646, 654 (7th Cir. 2007). Jackson’s
crimes began in the Northern District of Indiana, in South Bend, where he met a minor
at a party, enticed her to engage in prostitution, and then drove her to perform illicit sex
acts in other states. Because venue was proper in the Northern District of Indiana,
Jackson cannot present a substantial question that his counsel was ineffective for not
seeking acquittal based on improper venue. See Warren v. Baenen, 712 F.3d 1090, 1104
(7th Cir. 2013) (counsel is not ineffective by not raising a meritless claim).
Next, we consider No. 20-1444, Jackson’s appeal of his below-guidelines sentence
after remand. Jackson first maintains that the district court unconstitutionally enhanced
his offense level by six levels based on facts that were not found beyond a reasonable
doubt by a jury. The government responds that Jackson waived this argument by not
raising it in his first appeal. And regardless of waiver, it continues, the enhancements
were consistent with the Sixth Amendment and Booker.
Putting the waiver argument to the side, we conclude that Jackson must lose. As
we have repeatedly held, because Booker rendered the guidelines advisory, district
courts may, in computing the guidelines range, enhance offense levels based on facts
that it, rather than a jury, has found. See United States v. Valdez, 739 F.3d 1052, 1054
(7th Cir. 2014) (Sixth Amendment allows a district court to calculate its advisory
Nos. 20-1444 & 20-1536 Page 4
guidelines range based on a drug quantity that the court determines); United States v.
Glover, 479 F.3d 511, 521–22 (7th Cir. 2007) (district court’s finding that the career-
offender enhancement applied to the guideline calculation is compatible with Booker).
Under Booker, a constitutional violation occurs only “where the sentence exceeds the
statutory maximum for the charged crime or is imposed under a mandatory sentencing
scheme.” United States v. White, 443 F.3d 582, 592 (7th Cir. 2006). It does not occur where
the district court finds facts to support a sentencing enhancement under an advisory
guidelines range. Id. Although the enhancements increased Jackson’s advisory range,
that range and Jackson’s eventual 168-month prison sentence both fell below the
statutory maximum of life in prison. See 18 U.S.C. §§ 1591(b)(2), 2423(a). Because
Jackson does not suggest that the court treated the guidelines as mandatory, no Sixth
Amendment violation occurred.
Finally, Jackson also reprises his improper-venue arguments on appeal. But as
we concluded in denying his certificate of appealability, that claim is meritless. We have
considered Jackson’s remaining arguments, and none warrants relief.
We thus DENY Jackson’s certificate of appealability in appeal No. 20-1536 and
AFFRIM his sentence in appeal No. 20-1444.