United States v. Jackson , 296 F. App'x 408 ( 2008 )


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  •                       REVISED October 30, 2008
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 06-11241                    FILED
    Summary Calendar              October 21, 2008
    Charles R. Fulbruge III
    UNITED STATES OF AMERICA                                        Clerk
    Plaintiff-Appellee
    v.
    ZODERICK DROSSON JACKSON, also known as Z
    Defendant-Appellant
    Appeal from the United States District Court
    for the Northern District of Texas
    USDC No. 3:05-CR-76-1
    Before DAVIS, GARZA and PRADO, Circuit Judges.
    PER CURIAM:*
    Zoderick Drosson Jackson pleaded guilty to conspiracy to possess with the
    intent to distribute 50 grams or more of a substance or mixture containing a
    detectable amount of cocaine base. The district court imposed a below-guideline
    sentence of 25 years in prison.
    *
    Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
    should not be published and is not precedent except under the limited
    circumstances set forth in 5TH CIR. R. 47.5.4.
    No. 06-11241
    Jackson contends that because the record clearly reflects that the district
    court believed that it had no discretion to consider his alleged cooperation in the
    absence of a U.S.S.G. § 5K1.1 motion, the district court effectively rendered the
    Guidelines mandatory, in violation of United States v. Booker, 
    543 U.S. 220
    (2005).   He also argues that the district court violated Booker because it
    sentenced him in a regime that limited its ability to vary from the Guidelines on
    the basis of sentencing disparities between codefendants.
    When reviewing the reasonableness of a sentence, we must first ensure
    that the district court committed no significant procedural error, such as failing
    to calculate or properly calculate the Guidelines range, treating the Guidelines
    as mandatory, failing to consider the 
    18 U.S.C. § 3553
    (a) sentencing factors,
    basing a sentence on clearly erroneous facts, or failing to adequately explain the
    chosen sentence. Gall v. United States, 
    128 S. Ct. 586
    , 597 (2007). If the
    sentence is procedurally sound, we must then consider the substantive
    reasonableness of the sentence under an abuse-of-discretion standard. 
    Id.
     A
    district court’s interpretation or application of the Guidelines is reviewed de
    novo, and its factual findings are reviewed for clear error. United States v.
    Cisneros-Gutierrez, 
    517 F.3d 751
    , 764 (5th Cir. 2008).
    Contrary to Jackson’s assertions, the record reflects that the district court
    considered the Guidelines to be advisory and considered Jackson’s cooperation
    with the Government and the sentences of his codefendants in determining an
    appropriate sentence. Thus, there were no Booker violations.
    Jackson avers that the district court clearly erred in finding that he
    possessed a firearm for purposes of U.S.S.G. § 2D1.1. Given that the firearms
    were found in close proximity to the drugs and drug paraphernalia, it was not
    clearly improbable that the firearms were connected with the offense. See
    United States v. Hooten, 
    942 F.2d 878
    , 882 (5th Cir. 1991).
    Jackson contends that the district court erred in including in the drug
    quantity calculation the 80.4 grams of crack found in his refrigerator. Jackson
    2
    No. 06-11241
    avers that there was no finding by the district court that he was engaged in a
    conspiracy or jointly undertaken distribution activity with Thomas Gus Wright,
    who he contended was the owner of the drugs, or that he (Jackson) possessed the
    drugs in pursuit of the goals of the conspiracy.
    Because the district court found that the 80.4 grams of crack belonged to
    Jackson, the district court held him accountable for the drug with which he was
    directly involved and not as drugs attributable to him through the conspiracy.
    Thus, the district court was not required to find that Jackson was engaged in a
    conspiracy with Wright or that his possession was in furtherance of a jointly
    undertaken criminal activity. See United States v. Carreon, 
    11 F.3d 1225
    , 1230
    (5th Cir. 1994). The district court’s drug quantity attribution was not clearly
    erroneous. United States v. Davis, 
    76 F.3d 82
    , 84 (5th Cir. 1996).
    Jackson argues that the district court clearly erred by applying the three-
    level enhancement for his role in the offense pursuant to U.S.S.G. § 3B1.1(b).
    The record contains sufficient reliable evidence to support the district court’s
    finding that Jackson was a manager or supervisor of a criminal activity that
    involved five or more participants. See § 3B1.1(b); United States v. Fullword,
    
    342 F.3d 409
    , 415 (5th Cir. 2003).
    We also reject Jackson’s argument that the preponderance of the evidence
    standard employed by the district court in resolving disputed sentencing issues
    violated his Sixth Amendment rights. See United States v. Mares, 
    402 F.3d 511
    ,
    518-19 (5th Cir. 2005).
    Jackson contends that his below-guideline sentence is unreasonable
    because it fails to properly account for the § 3553(a) factors. The record shows
    that the district court considered the § 3553(a) factors. Jackson’s appellate
    argument is, in essence, that this court should reweigh the § 3553(a) factors.
    That an appellate court “might reasonably have concluded that a different
    sentence was appropriate is insufficient to justify reversal of the district court.”
    Gall, 
    128 S. Ct. at 597
    .
    3
    No. 06-11241
    We acknowledge that during the pendency of Jackson’s appeal, the
    Sentencing Commission enacted Amendment 715 to § 2D1.1, revising the
    manner in which combined offense levels are determined in cases involving
    cocaine base and one or more other controlled substances. U.S. SENTENCING
    GUIDELINES MANUAL, app. C (2008). Our holding in the present case does not
    preclude future consideration of this issue in a motion to the district court
    pursuant to 
    18 U.S.C. § 3582
    (c).
    AFFIRMED.
    4