United States v. Moreno Jackson, II

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 26a0114p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

UNITED STATES OF AMERICA,

│

Plaintiff-Appellee, │

> No. 25-1223

│

v. │

│

MORENO LEE JACKSON, II, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:24-cr-00112-1—Paul Lewis Maloney, District Judge.

Argued: March 18, 2026

Decided and Filed: April 15, 2026

Before: BATCHELDER, THAPAR and MATHIS, Circuit Judges.

_________________

COUNSEL

ARGUED: Christopher R. Knight, HAYNES AND BOONE, LLP, Dallas, Texas, for

Appellant. John J. Schoettle, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,

Michigan, for Appellee. ON BRIEF: Christopher R. Knight, Brenna Helene Scully, HAYNES

AND BOONE, LLP, Dallas, Texas, for Appellant. John J. Schoettle, Kathryn M. Dalzell,

UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.

BATCHELDER, J., delivered the opinion of the court in which THAPAR, J., concurred.

MATHIS, J. (pp. 10–17), delivered a separate dissenting opinion.

No. 25-1223 United States v. Jackson Page 2

_________________

OPINION

_________________

ALICE M. BATCHELDER, Circuit Judge. Moreno Lee Jackson, who has an extensive

history of firearm and drug-related offenses, challenges the procedural reasonableness of his

middle-of-the-Guidelines sentence of 212 months’ imprisonment. Because we find that Jackson

waived any appellate challenge to his sentence, we AFFIRM.

I.

Moreno Jackson engaged in a series of crimes involving firearms and narcotics in

Michigan from February to July 2024. These incidents included multiple arrests involving

firearms, drug overdoses, possession of fentanyl and methamphetamine, and fleeing from law

enforcement. Jackson’s crime-spree came to an end on July 15, 2024, when ATF case agents

arrested him pursuant to a warrant filed on July 8.

While represented by counsel, Jackson entered into a plea agreement in which he pleaded

guilty to illegally possessing a Ruger 9mm pistol in violation of 18 U.S.C. §922(g)(1). The

incident underlying Jackson’s plea occurred on February 20, 2024, when police officers

attempted to stop Jackson’s vehicle because they suspected that it had been involved in a

robbery, Jackson fled from the police, later abandoned his car and ran on foot, and discarded a

Ruger 9mm firearm during the chase.

In his plea agreement, Jackson “acknowledge[d] that he is subject to the enhanced

penalties provided in Title 18, United States Code, Section 924(e)(1), because [he] has been

convicted of three or more violent felonies and/or serious drug offenses. The statutory

mandatory minimum sentence that the Court must impose . . . is 15 years’ imprisonment.”

Jackson signed his plea agreement immediately below the following paragraph:

I have read this agreement and carefully discussed every part of it with my

attorney. I understand the terms of this agreement, and I voluntarily agree to

those terms. My attorney has advised me of my rights, of possible defenses, of

the sentencing provisions, and of the consequences of entering into this

agreement. No promises or inducements have been made to me other than those

No. 25-1223 United States v. Jackson Page 3

contained in this agreement. No one has threatened or forced me in any way to

enter into this agreement. Finally, I am satisfied with the representation of my

attorney in this matter.

Jackson further underscored his understanding of the plea agreement at his plea hearing, when he

acknowledged under oath that he had signed the plea agreement and that his attorney had

reviewed the agreement and answered all his questions about it. Jackson twice affirmed his

understanding that “he had at least three prior convictions for crimes of violence” or serious drug

offenses and therefore “[i]t [would] be the Court’s obligation to sentence [him] to at least

15 years if [he was] convicted of this offense.”

As listed on the presentence report (“PSR”), the offenses for purposes of the Section

924(e) enhancement included (1) Assault with Intent to Commit Sexual Penetration,

(2) Felonious Assault, (3) Controlled Substance - Delivery/Manufacture (Cocaine,

Heroin, or Another Narcotic) Less Than 50 Grams (2011), and (4) Controlled

Substance - Delivery/Manufacture (Cocaine, Heroin, or Another Narcotic) Less Than 50 Grams

(2018). Because of these four offenses, the district court calculated his offense level and

criminal history category according to U.S.S.G. § 4B1.4, which provided a base offense level of

34 under § 4B1.4(b)(3)(A). After the court adjusted Jackson’s base offense level for accepting

responsibility, his final offense level was 31. Based upon Jackson’s total offense level of 31 and

a criminal history category of VI, the report calculated Jackson’s advisory Guidelines range as

188 to 235 months. The district court considered Jackson’s repeated use of firearms, significant

criminal history, and risk to the public, and imposed a middle-of-the-Guidelines sentence of 212

months’ imprisonment. Jackson now appeals. He contends that the district court erred by

applying a sentencing enhancement under 18 U.S.C. § 924(e) and attributing multiple firearms to

him. At bottom, Jackson challenges his sentence as procedurally unreasonable.

II.

We review for plain error a defendant’s unpreserved procedural-reasonableness

challenge. United States v. Hawkins, 165 F.4th 442, 455 (6th Cir. 2026). But we need not review

waived claims at all. United States v. Jackson, 995 F.3d 476, 484 (6th Cir. 2021). One “branch”

of the waiver doctrine is “invited error,” and while we generally do not review it, we may review

No. 25-1223 United States v. Jackson Page 4

an invited error for plain error to prevent “manifest injustice.”1 United States v. Akridge,

62 F.4th 258, 263 (6th Cir. 2023).

III.

Jackson challenges his sentence as procedurally unreasonable. “A sentence can be

procedurally unreasonable if the district court fails to properly calculate the Guidelines range.”

United States v. Cabbage, 91 F.4th 1228, 1230 (6th Cir. 2024). Jackson argues he is not subject

to enhanced penalties under 18 U.S.C. § 924(e) because, as he sees it now, he does not have three

prior convictions for violent felonies or serious drug offenses. Jackson’s problem, however, is

that he repeatedly agreed that he did.

Because we do not review waived claims, our review of Jackson’s argument depends on

whether he waived his challenge. Jackson contends that he did not waive an appellate challenge

to this purported error, but that he merely invited the purported error and thus we should review

his arguments to prevent manifest injustice. Waiver is the “intentional relinquishment or

abandonment of a known right.” United States v. Olano, 507 U.S. 725, 733 (1993). And we

have stated that, “[t]hough invited error is a branch of waiver, the two doctrines are not the

same.” Akridge, 62 F.4th at 263 (cleaned up). A person “invites error when he contributes in

some way to the district court’s error without intentionally relinquishing his rights.” United

States v. Woods, 61 F.4th 471, 481 (6th Cir. 2023).

Two cases largely govern the parties’ arguments and our decision. The United States

urges this court to find Jackson’s argument waived under United States v. Aparco-Centeno,

280 F.3d 1084, 1088 (6th Cir. 2002) because Jackson “‘explicitly agreed’ that he had at least

three qualifying predicates under § 924(e).” But Jackson argues that, according to our decision

in United States v Montgomery, 998 F.3d 693, 699 (6th Cir. 2021), he invited the error because

1

We recognize both the general waiver rule and our discretion, in rare instances, “to deviate from the

general waiver rule.” Turner v. United States, 885 F.3d 949, 954 (6th Cir. 2018) (en banc). This is not one of those

rare cases. After all, the goal of the ACCA is to keep serious drug dealers and violent offenders in prison. Nothing

is unjust about fulfilling that purpose. So, when we look at a defendant’s PSR and see, as is the case here, that the

facts of the defendant’s crimes are actually violent and/or constitute serious drug crimes, we need not, and should

not, excuse their waiver.

No. 25-1223 United States v. Jackson Page 5

“the record indicates that Mr. Jackson misunderstood applicable law and mistakenly believed

that his prior convictions . . . qualified as predicate offenses under § 924(e).”

In Aparco-Centeno, the defendant agreed with the PSR classifying two of his prior

convictions as aggravated felonies. 280 F.3d at 1086. The defendant later challenged that

aggravated-felony classification on appeal, and we held that the defendant waived his argument

because “[n]ot only did Aparco–Centeno not object to the district court’s consideration of the two

prior convictions as aggravated felonies under 8 U.S.C. § 1326, he explicitly agreed that they

qualified as such.” Id. at 1088. The defendant’s counsel did not object to the PSR and also

explicitly stated in his sentencing memorandum that “because . . . two of these offences were at

least one year in duration, they are classified as aggravated felonies.” Id.

But in 2021, we characterized our Aparco-Centeno holding as a “labeling error” and

reasoned that “the situation in Aparco-Centeno is better understood as a case of invited error”

because: (1) “[n]othing in our reasoning there shows that Aparco-Cent[e]no was aware that the

statuses of his prior crimes were subject to dispute”; and (2) we improperly stated in Aparco-

Centeno that we review waived arguments (rather than invited errors) when the “interests of

justice demand it.” Montgomery, 998 F.3d at 699.

In Montgomery, the district court miscalculated the defendant’s Guidelines range after

the defendant used an improper Guidelines calculation in his brief. Id. at 697. We found that the

defendant did not waive his argument, despite the same type of “explicit agreement” that

occurred in Aparco-Centeno, because “[h]e did not intentionally relinquish a known right.” Id. at

699. Instead, by using the improper Guidelines range in his brief, “Montgomery invited the

district court to reach [the] erroneous conclusions.” Id. We explained that a defendant must

know about and actively abandon the right he is waiving and therefore, “true waiver will be

relatively rare.” Id. at 697.

Since Montgomery, our distinction between waiver and invited error has been imprecise.

Compare Woods, 61 F.4th at 482 (finding that defendants “invited the district court to err in

designating them as career offenders under the 2018 Guidelines when they wrote in their

briefings that they ‘remain[ ] in the career offender guideline’”), with United States v. Caballero-

No. 25-1223 United States v. Jackson Page 6

Melgar, No. 21-6036, 2023 WL 4864285, at *4 (6th Cir. July 31, 2023) (finding that “defense

counsel waived the ability to raise the issue of the [Pinkerton] instruction’s completeness on

appeal” because he had “agree[d] to the modified instruction”). Accordingly, we have, on

several occasions, declined to clarify the “hazy border” between waiver and invited error.

Cabbage, 91 F.4th at 1231 (explaining that since the defendant “can’t prevail either way, we will

assume he didn’t waive his challenge.”); see also United States v. Carter, 89 F.4th 565, 569-70

(6th Cir. 2023) (“It is not necessary to decide where [defendant’s] statement falls on the ‘hazy

border’ between waiver and invited error. . . . [because] in this case, no manifest injustice will

result from declining to consider Carter’s challenge.”). But we find that Jackson’s express

agreements constitute a waiver of his challenge and therefore, we decline to review it.

Before Montgomery, we consistently read Aparco-Centeno according to its own terms—

as applying waiver. E.g., Jackson, 995 F.3d at 484; United States v. Sherrill, 972 F.3d 752, 769

(6th Cir. 2020) (acknowledging that an “explicit agreement constitutes waiver, or the ‘intentional

relinquishment or abandonment of a known right’”) (citation omitted); United States v. Fowler,

819 F.3d 298, 306 (6th Cir. 2016) (“[W]here one makes a plain, explicit concession on the

record, we will consider that argument waived.”) (cleaned up); United States v. McBride, 826

F.3d 293, 294–95 (6th Cir. 2016) (“A defendant waives the argument that a sentencing

enhancement does not apply by explicitly agreeing that it does, such as through plain, positive

concurrence.”) (cleaned up); United States v. Ruiz, 777 F.3d 315, 320 (6th Cir. 2015); United

States v. Priddy, 808 F.3d 676, 681 (6th Cir. 2015) (“[W]here the defendant has explicitly agreed

that a particular guideline calculation or enhancement applies to his sentence, any challenge to

that enhancement on appeal is waived.”) (cleaned up), abrogated on other grounds by United

States v. Stitt, 860 F.3d 854 (6th Cir. 2017); United States v. Kennedy, 499 F.3d 547, 553 (6th Cir.

2007); United States v. Ward, 506 F.3d 468, 477 (6th Cir. 2007); United States v. Knox, 593

F. App’x 536, 537 (6th Cir. 2015). And we have, since Montgomery, continued to cite Aparco-

Centeno for the proposition that “[a] defendant waives an argument when he ‘agree[s] in open

court with a judge’s proposed course of conduct.’” United States v. Seuell, 135 F.4th 480, 482

(6th Cir. 2025) (quoting Aparco-Centeno, 280 F.3d at 1088). So, although we stated in

Montgomery, 998 F.3d at 699, that the distinction between waiver and invited error “fares no

No. 25-1223 United States v. Jackson Page 7

better” than the confusion surrounding waiver and forfeiture, much of the tension between

waiver and invited error emerged only after Montgomery and is attributable to Montgomery.

It is true that in Aparco-Centeno, we said that we review waived arguments when the

“interests of justice demand otherwise.” 280 F.3d at 1088. And in light of that sentence, in

Montgomery, we posed the following question: “were we wrong (or at least inexact) to say that

Aparco-Cent[e]no waived the challenge, or wrong to raise the possibility that we could review it

anyway?” Montgomery, 998 F.3d at 699. We answered, “[m]ore likely it was the former—a

labeling error on our part.” Id. However, a more accurate reading of Aparco-Centeno shows that

we were wrong to raise the possibility—in a sentence that had no bearing on our holding—that

we could review a waived argument at all. Indeed, immediately before that extraneous sentence

we correctly acknowledged that “[w]aiver is the ‘intentional relinquishment or abandonment of a

known right,’ and these rights are not reviewable.” Aparco-Centeno, 280 F.3d at 1088 (citation

omitted). And immediately after that sentence, we quoted our longstanding waiver standard:

“[a]n attorney cannot agree in open court with a judge’s proposed course of conduct and then

charge the court with error in following that course.” Id. (quoting United States v. Sloman, 909

F.2d 176, 182 (6th Cir. 1990)). Then, we held that the defendant had waived his argument

because that type of agreement was “exactly the course that [he had] followed in the court

below.” Id. Notably absent from Aparco-Centeno is any discussion of invited-error principles or

the right to raise a waived issue. See generally id.

Therefore, we conclude that the so-called “labeling error” discovered in Montgomery is

not rooted in our precedent that a defendant waives an argument by expressly agreeing with a

judge’s proposed course of action. We reaffirm the decades of cases from this Court holding that

waiver occurs when a defendant agrees with a “judge’s proposed course of conduct and then

[later] charge[s] the court with error in following that course.” Sloman, 909 F.2d at 182.

Jackson did not provoke or invite the district court to err. Rather, he expressly and

consistently admitted that he had three qualifying predicate convictions and that he understood

the associated consequences of that admission. Accordingly, Jackson’s admissions before the

district court constitute waiver. Indeed, Jackson and counsel signed a plea agreement in which

he “acknowledge[d] that . . . [he] has been convicted of three or more violent felonies and/or

No. 25-1223 United States v. Jackson Page 8

serious drug offenses,” affirmed that he had “read [the] agreement and carefully discussed every

part of it with [his] attorney,” and affirmed that his attorney had advised him of the “sentencing

provisions, and of the consequences of entering into [the] agreement.”2 Then, at his plea

hearing, Jackson again conveyed his understanding that he “had at least three prior convictions

for crimes of violence” and that, accordingly, it would be the court’s “obligation to sentence

[him] to at least 15 years” if he was convicted of the offense. Jackson again affirmed that his

attorney had gone over the plea agreement in its entirety and answered all his questions. And

Jackson confirmed a second time that he had at least three prior convictions for crimes of

violence or serious drug felonies.

Moreover, a defendant may waive any issue, so long as he knows the right he is waiving

“in general.” Seuell, 135 F.4th at 483. He “need not know each possible defense or strategy that

he forgoes by waiving a constitutional right.” Id. And Jackson’s acknowledgments regarding

the Section 924 enhancement and its supporting predicate offenses indicate that he certainly

understood, in general, that he was giving up his right to appeal the sentence based on that

enhancement. Jackson waived the ability to challenge the procedural reasonableness of his

sentence, and we decline to review his remaining arguments. His motion to take judicial notice

of the fact that his 2018 conviction under MCL 333.7401 was for delivery of less than 50 grams

of cocaine is therefore moot.

At this point, if Jackson has any claim of error, it would be that his attorney provided

ineffective assistance. And that is a claim that he may raise in a post-conviction, collateral

proceeding.

2

The dissent argues that “Jackson knew how to waive rights, as he waived certain constitutional rights”

listed in his plea agreement. Dissenting Op. at 5. But Jackson’s “acknowledge[ment] that he is subject to the

enhanced penalties provided in [the ACCA]” just a few pages earlier in the plea agreement is just as knowing and

voluntary as his explicit waiver. In both places, the plea agreement reflects Jackson’s agreement and briefly

describes the underlying legal issue. So the only way to distinguish between them—finding one valid waiver, and

the other invited error—is to impose a “magic words” requirement for waiver by requiring that the plea agreement

caption it as an affirmative waiver. And if the ultimate question is whether Jackson knew and understood what he

was giving up, magic words aren’t necessary.

No. 25-1223 United States v. Jackson Page 9

IV.

Based on the foregoing, we AFFIRM the judgment of the district court.

No. 25-1223 United States v. Jackson Page 10

_________________

DISSENT

_________________

MATHIS, Circuit Judge, dissenting. Moreno Jackson is currently serving a longer

sentence than Congress intended for his crime. But he shoulders some of the blame. He (and the

government) told the district court that he should be sentenced under the Armed Career Criminal

Act. The district court obliged.

It turns out that Jackson should not have been sentenced under ACCA. Jackson thus

invited the error that the district court committed. Because the interests of justice demand that

we review the invited error and because Jackson can show plain error, I would vacate Jackson’s

sentence.

I.

The district court sentenced Jackson under ACCA for his felon-in-possession conviction.

Typically, a defendant convicted of being a felon in possession of a firearm faces a sentence of

up to 15 years’ imprisonment. 18 U.S.C. §§ 922(g)(1), 924(a)(8). But if the defendant has

“three previous convictions . . . for a violent felony or a serious drug offense, or both, committed

on occasions different from one another,” ACCA prescribes a mandatory minimum sentence of

15 years’ imprisonment. Id. § 924(e)(1).

On appeal, Jackson disputes that he has three predicate convictions necessary to trigger

the ACCA sentencing enhancement. The district court concluded that Jackson had four such

convictions: (1) a 2007 conviction for assault with a dangerous weapon; (2) a 2011 conviction

for delivery or manufacture of a controlled substance; (3) a 2012 conviction for assault with

intent to commit sexual penetration; and (4) a 2018 conviction for delivery or manufacture of a

controlled substance. Jackson does not dispute that his 2007 assault and 2011 drug convictions

are qualifying ACCA predicate offenses. And the government no longer argues that Jackson’s

assault-with-intent-to-commit-sexual-penetration conviction is a qualifying ACCA offense.

No. 25-1223 United States v. Jackson Page 11

That leaves Jackson’s 2018 drug conviction. Jackson pleaded guilty to delivery of less

than 50 grams of a mixture containing cocaine, in violation of Michigan Compiled Laws

§ 333.7401(2)(a)(iv). That offense is a felony that carries a sentence of up to 20 years’

imprisonment.

So is Jackson’s 2018 drug conviction a “serious drug offense”? ACCA defines “serious

drug offense” as “an offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled substance (as defined in section

102 of the Controlled Substances Act (21 U.S.C. [§] 802)), for which a maximum term of

imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Courts

use the categorical approach to determine whether a state drug conviction qualifies as a serious

drug offense. Shular v. United States, 589 U.S. 154, 160 (2020). Under that approach, “a state

drug offense counts as an ACCA predicate only if the State’s definition of the drug in question

matches the definition under federal law.” Brown v. United States, 602 U.S. 101, 106 (2024)

(citation modified).

To determine whether there is a match, ACCA requires “courts to examine the law as it

was when the defendant violated it, even if that law is subsequently amended.” Id. at 111. At

the time Jackson committed the offense underlying his 2018 drug conviction, Michigan’s

definition of cocaine did not match the federal definition. Michigan law criminalized

[123 I]ioflupane, which is “a radioactive cocaine derivative . . . that is the active pharmaceutical

ingredient in a drug used to diagnose patients who are suspected to have Parkinson’s disease.”

Id. at 108; United States v. Wilkes, 133 F.4th 600, 602 (6th Cir. 2025). But “[t]he federal

government legalized [123 I]ioflupane in 2015.” Wilkes, 133 F.4th at 602 n.2. Because

Michigan’s definition of cocaine criminalized more conduct than the federal definition,

Jackson’s 2018 drug conviction is not a serious drug offense.

The government argues that despite the mismatch between Michigan law and federal law,

Jackson’s conviction is still a serious drug offense. It is so, the government posits, because

Michigan incorporates any drug exemptions available under federal law, and the State also

excludes substances without the potential for abuse, like [123 I]ioflupane, from prosecution. See

Mich. Comp. Laws §§ 333.7229, 333.7227(1). But these arguments fail for a key reason.

No. 25-1223 United States v. Jackson Page 12

In Michigan, these statutes function only as affirmative defenses; they do not change the

elements of the offense. See People v. Hartuniewicz, 816 N.W.2d 442, 447 (Mich. Ct. App.

2011); People v. Dean, 253 N.W.2d 344, 348 (Mich. Ct. App. 1977); see also People v. Baham,

909 N.W.2d 836, 845 (Mich. Ct. App. 2017) (per curiam) (“Once the prosecution has presented a

prima facie case of manufacturing a controlled substance, the burden shifts to the defendant to

present some competent evidence regarding the applicability of the personal-use exception. In

other words, the personal-use exception functions as an affirmative defense, and the prosecutor is

not required to disprove personal use as an element of the offense.” (citation modified)). Thus,

the defenses have no bearing on the categorical-approach analysis. Cf. Smith v. United States,

568 U.S. 106, 110 (2013).

Because Jackson’s 2018 drug conviction is not a serious drug offense and because the

government no longer argues that Jackson’s assault-with-intent-to-commit-sexual-penetration

conviction is a predicate offense, Jackson does not have the three predicate offenses needed for

ACCA to apply. So he should not have been sentenced under ACCA.

Recognizing that ACCA should not have applied is the easy part. The hard part is

deciding whether this court has a role to play in rectifying the error.

II.

The majority opinion concludes that Jackson waived any argument that the district court

erred by sentencing him under ACCA. In my view, Jackson invited the error. The difference

between waiver and invited error has confounded courts.

Start with waiver. “Waiver is the intentional relinquishment or abandonment of a known

right.” United States v. Olano, 507 U.S. 725, 733 (1993) (citation modified). “[W]aiver requires

more than merely agreeing to or even suggesting a specific standard.” United States v. Cabbage,

91 F.4th 1228, 1231 (6th Cir. 2024). A criminal “defendant can only waive a right that he knows

of and actively abandons.” United States v. Montgomery, 998 F.3d 693, 697 (6th Cir. 2021).

“[W]e look for signs that a party knew and understood both the relevant issue and the potential

relevant arguments about it.” Walker v. United States, 134 F.4th 437, 442–43 (6th Cir. 2025).

Thus, “true waiver” is “relatively rare.” Montgomery, 998 F.3d at 697. For instance, we held

No. 25-1223 United States v. Jackson Page 13

that a defendant waived a right to bring a Second Amendment challenge to his sentence where

the record reflected that he understood he could bring the challenge, but he told the district court

that he wanted to proceed with sentencing without doing so. United States v. Seuell, 135 F.4th

480, 482–83 (6th Cir. 2025).

Turn to invited error. “Invited error occurs when a litigant contributes in some way to the

district court’s error without intentionally relinquishing his rights.” United States v. Akridge, 62

F.4th 258, 263 (6th Cir. 2023) (citation modified). A party can do this by inviting or provoking a

district court to err. See Harvis v. Roadway Express, Inc., 923 F.2d 59, 60 (6th Cir. 1991). Our

cases have described invited error as “a branch of the doctrine of waiver.” Id. at 61.

The scope of our review depends on whether a defendant waived a right or invited error.

We generally “do not consider waived arguments.” United States v. Carter, 89 F.4th 565, 568

(6th Cir. 2023). “We sometimes—albeit rarely—review invited errors to prevent manifest

injustice.” Id. (citation modified). Whether we review an invited error is left to our discretion.

Id. at 570.

As I see it, this case falls on the invited-error side of the “hazy border between invited

error and waiver.” Montgomery, 998 F.3d at 698. In his plea agreement, Jackson

“acknowledge[d] that he is subject to” ACCA because he had three or more predicate offenses.

R. 29, PageID 79. And during his guilty plea, he again admitted that he had three predicate

offenses. By conceding that he had the requisite prior convictions for the district court to

sentence him under ACCA, Jackson invited or provoked the court to commit an error. But

nothing in the record shows that Jackson intentionally relinquished or abandoned a known right.

In other words, the record does not reveal that Jackson knew of and actively abandoned his right

to challenge his prior convictions as ACCA predicates. See Montgomery, 998 F.3d at 697. The

plea agreement shows that Jackson knew how to waive rights, as he waived certain constitutional

rights and he waived any right to pursue a Freedom of Information Act request for documents

pertaining to his case.

This case is much like Montgomery. There, the defendant argued on appeal that the

district court erroneously calculated his criminal history score and his Sentencing Guidelines

No. 25-1223 United States v. Jackson Page 14

range. Id. at 696–97, 699. But before sentencing, the defendant told the district court that he

agreed with the very criminal history category and Guidelines range that the court used. Id. at

699. We concluded that the defendant invited the district court’s error. Id.

This case is also in line with United States v. Woods. 61 F.4th 471 (6th Cir. 2023).

There, we concluded that the defendants “invited the district court to err in designating them as

career offenders” by telling the court that the career-offender guideline applied. Id. at 482.

The majority opinion brushes aside this caselaw in favor of United States v. Aparco-

Centeno. 280 F.3d 1084 (6th Cir. 2002). There, we held that a defendant waived a challenge to

the district court’s determination that two of his prior convictions were “aggravated felonies

under 8 U.S.C. § 1326.” Id. at 1088. In his plea agreement, the defendant stipulated to the

aggravated felonies. Id. at 1086. And the defendant’s sentencing memorandum acknowledged

that the prior convictions were “classified as aggravated felonies under 8 U.S.C. § 1101(a)(43).”

Id. at 1088. Although we concluded that the defendant waived his appellate challenge, we “d[id]

not foreclose appellate review for plain error when the interests of justice demand otherwise.”

Id. (citation modified). But we declined to review the defendant’s claim that the district court

plainly erred by classifying his prior convictions as aggravated felonies. Id.

Montgomery says that “the situation in Aparco-Cent[e]no is better understood as a case

of invited error.” 998 F.3d at 699. I agree. But even if Montgomery is wrong, Aparco-Centeno

specifies that we can review waived claims for plain error in the interests of justice. 280 F.3d at

1088. And, as the majority opinion acknowledges, we can “deviate from the general waiver

rule” for pure questions of law that “ha[ve] been fully briefed and argued.” Turner v. United

States, 885 F.3d 949, 954 (6th Cir. 2018) (en banc) (citation modified). The ACCA question is

one of law that the parties have briefed and argued. So whether we follow Montgomery, or

Aparco-Centeno, or Turner, the result is the same. We have discretion to reach merits of

Jackson’s ACCA argument.

III.

I analyze Jackson’s ACCA argument under the invited-error doctrine. We have

discretion to review an invited error. Montgomery, 998 F.3d at 699. But we will do so only if

No. 25-1223 United States v. Jackson Page 15

the party that invited the error shows that the interests of justice demand it. Id. To meet this

burden, a criminal defendant must show that he and the government “are equally at fault” and

that failing to correct the error “would result in manifest injustice.” Id. If the defendant

overcomes that initial hurdle, he must then show plain error.

A.

Start with the interests-of-justice component. Jackson and the government were equally

culpable for the invited error. The plea agreement, in which Jackson acknowledged that ACCA

applied, was executed by Jackson and the government. And at the change-of-plea hearing where

Jackson agreed to having at least three predicate ACCA offenses, the government identified the

four offenses.

Manifest injustice would result if we turn a blind eye to the error here. Applying ACCA,

the district court sentenced Jackson to more than 17 years in prison. That is two years more than

the court could have sentenced him if ACCA did not apply. Allowing someone “to linger longer

in prison than the law requires” is the very essence of manifest injustice. Id. at 700 (quotation

omitted). If a Guidelines-calculation error has “sufficient gravity” to qualify as manifest

injustice, id. at 699, then surely a statutory-range-calculation error does when the sentence

imposed on the defendant exceeds the maximum possible sentence under the correct statutory

range.

B.

I turn next to whether Jackson has shown plain error. To show plain error, a defendant

must establish that: (1) there was an error, (2) the error was “plain,” (3) the error affected

“substantial rights,” and (4) “the error had a serious effect on the fairness, integrity or public

reputation of judicial proceedings.” Greer v. United States, 593 U.S. 503, 507–08 (2021)

(citation modified). For the reasons provided in Part I above, the district court erred by

sentencing Jackson under ACCA. So I proceed to consider the remaining prongs.

Plain error occurred. For an error to be plain, it “must be clear or obvious, rather than

subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009). “[W]hether a

No. 25-1223 United States v. Jackson Page 16

legal question was settled or unsettled” at the time of the district court’s decision, “it is enough

that an error be plain at the time of appellate consideration.” Henderson v. United States, 568

U.S. 266, 279 (2013) (citation modified).

The combination of Brown v. United States and United States v. Wilkes makes it beyond

dispute that Jackson’s 2018 drug conviction was not a serious drug offense. In Brown, the

Supreme Court clarified that “a state drug conviction counts as an ACCA predicate if it involved

a drug on the federal schedules at the time of that offense.” 602 U.S. at 123. Brown further

confirmed that “the Federal Government legalized . . . [123 I]ioflupane” in 2015. Id. at 107–08.

Wilkes established that Michigan continued to criminalize the substance at least through 2022

when the defendant in that case was sentenced. 133 F.4th at 602. Because [123 I]ioflupane

remained illegal in Michigan at the time Jackson committed the offense that led to his 2018 drug

conviction, Michigan law criminalized more conduct than federal law. Thus, Jackson’s

conviction cannot count as an ACCA predicate.

The error affected Jackson’s substantial rights. An error affects a defendant’s substantial

rights when he shows “a reasonable probability that, but for the error, the outcome of the

proceeding would have been different.” Molina-Martinez v. United States, 578 U.S. 189, 194

(2016) (citation modified). The district court sentenced Jackson, under ACCA, to 212 months’

imprisonment. In my view, ACCA does not apply. Thus, Jackson’s sentence cannot exceed 180

months’ imprisonment. So the outcome would have been different if not for the error.

The final plain-error factor favors Jackson as well. If “[t]he risk of unnecessary

deprivation of liberty . . . undermines the fairness, integrity, or public reputation of judicial

proceedings in the context of a plain Guidelines error,” Rosales-Mireles v. United States, 585

U.S. 129, 140 (2018), then an error that results in a significantly higher statutory sentencing

range should also be cured under plain-error review. “The possibility of additional jail time” for

a defendant should generally lead us to correct plain errors. Id. at 139. That is particularly so

here because the district court had no discretion to deviate from the ACCA statutory range.

No. 25-1223 United States v. Jackson Page 17

IV.

Although I characterize what took place in this case as an error (or a plain error), I do not

fault the district court for the error. The parties told the court that Jackson was subject to ACCA.

And federal courts should not “sally forth each day looking for wrongs to right.” Akridge,

62 F.4th at 264 (quotation omitted). Still, we should right the wrong in this case that will require

Jackson to serve a sentence “greater than necessary.” 18 U.S.C. § 3553(a). Because the majority

opinion reaches a different conclusion, I respectfully dissent.