United States v. Jackson

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0401p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 06-5258

v.

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MARVIN JACKSON, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 04-20266—Bernice B. Donald, District Judge.

Submitted: October 25, 2006

Decided and Filed: October 30, 2006

Before: MARTIN and COOK, Circuit Judges; TARNOW, District Judge.*

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COUNSEL

ON BRIEF: J. Patten Brown III, OFFICE OF THE FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF TENNESSEE, Memphis, Tennessee, for Appellant. Stephen P. Jones,

UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

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OPINION

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BOYCE F. MARTIN, JR., Circuit Judge. Marvin Jackson appeals his sentence for the crime

of possession of a firearm by a felon. Because we conclude that the district court’s sentence was

reasonable, we affirm.

I.

On June 22, 2004, Marvin Jackson was indicted by a federal grand jury for possession with

intent to distribute 25.1 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), being a

convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and possessing a

firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k). On June 30, 2005,

Jackson pled guilty to the section 922(g) violation. In exchange, the government agreed to drop the

*

The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by

designation.

1

No. 06-5258 United States v. Jackson Page 2

other charges, not seek a four-level enhancement for possession of the firearm in connection with

another felony, and to recommend sentencing Jackson at the low end of the Guidelines range.

The government recommended that Jackson’s base offense level be increased to 24 based

on two prior convictions, under U.S.S.G. § 2K2.1(a)(2). Pursuant to U.S.S.G. § 2K2.1(b)(4), the

offense level was increased two additional points due to the obliteration of the firearm’s serial

number. This level was then reduced1 three points for Jackson’s acceptance of responsibility,

resulting in a total offense level of 23. Paired with a Criminal History Category of V, Jackson’s

advisory Guidelines range was calculated to be 84 - 105 months.

At his sentencing hearing, Jackson’s counsel asked the court to sentence Jackson to

60 months. In support of his request, counsel noted Jackson’s familial obligations and his

enrollment in a substance abuse group. The district court sentenced Jackson to 72 months

incarceration and two years supervised release, explaining that under the circumstances, it believed

that a below-Guidelines sentence was warranted, although the court refused to set the sentence as

low as Jackson’s counsel suggested.

Jackson appeals his sentence on two grounds: (1) that the district court did not follow the

requirements of United States v. Booker, 543 U.S. 220 (2005), because it “imposed what it believed

to be a ‘reasonable’ sentence in light of the sentencing factors,” and (2) that the district court erred

in setting Jackson’s base offense level at 24 based on his prior convictions.

II.

Following the Supreme Court’s decision in United States v. Booker, which rendered the

Sentencing Guidelines advisory, this Court reviews a sentence imposed by a district court for

reasonableness. United States v. Foreman, 436 F.3d 638, 644 (6th Cir. 2006). In contrast, “a district

court’s job is not to impose a ‘reasonable’ sentence. Rather, a district court’s mandate is to impose

‘a sentence sufficient, but not greater than necessary, to comply with the purposes’ of section

3553(a)(2).” Id. at 644 n.1.

Although in United States v. Williams, 436 F.3d 707, 707-08 (6th Cir. 2006), we stated that

a sentence within the Guidelines range is presumptively reasonable, we later clarified that this does

not mean that2a sentence above or below (as in this case) the Guidelines range is presumptively

unreasonable. Foreman, 436 F.3d at 644. The Sentencing Guidelines are just one of the section

3553(a) factors that the district court must consider. In reviewing a sentence for reasonableness, we

look to see whether the district court also considered the other relevant section 3553(a) factors. Id.

We have noted that while a “ritual incantation of the factors” is not required, “explicit mention of

those factors may facilitate review.” United States v. Johnson, 403 F.3d 813, 816 (6th Cir. 2005).

1

The presentence report originally added another four levels based upon Jackson’s possession of the firearm

in connection with another felony, under U.S.S.G. § 2K2.1(b)(5), bringing his total offense level to 27. This violated

the plea agreement, which provided that the government would not present proof that Jackson possessed the firearm in

connection with another felony offense. Upon his counsel’s objection, the district court instructed the Probation

Department to delete the increase.

2

We further clarified that:

Williams does not mean that a Guidelines sentence will be found reasonable in the absence of

evidence in the record that the district court considered all of the relevant section 3553(a) factors.

A sentence within the Guidelines carries with it no implication that the district court considered the

3553(a) factors if it is not clear from the record, because, of course, under the Guidelines as

mandatory, a district court was not required to consider the section 3553(a) factors. It would be

unrealistic to now claim that a Guideline sentence implies consideration of those factors.

Foreman, 436 F.3d at 644.

No. 06-5258 United States v. Jackson Page 3

It is difficult to discern why Jackson believes that the district court’s “sentencing

methodology was erroneous,” or why Jackson is under the impression that it attempted to impose

a sentence using the appellate “reasonableness” standard without considering the section 3553(a)

factors. Nothing in the record or in Jackson’s brief supports such a conclusion. We believe that the

district court adequately considered the section 3553(a) factors in light of Jackson’s particular

circumstances. In sentencing Jackson, it noted Jackson’s several prior convictions and his two

minor children living with Jackson’s mother and sister.3 The court explained that a 72-month

sentence was sufficient to punish Jackson and deter future conduct. Further, it reflected the

seriousness of the crime, yet took his familial obligations into account.

It appears that Jackson is simply unhappy with his sentence, despite the fact that it is lower

than the statutory maximum (120 months) and the applicable Guidelines range (84-105 months).

The fact that the district court did not give the defendant the exact sentence he sought is not a

cognizable basis to appeal, particularly where the district court followed the mandate of section

3553(a) in all relevant respects. Because the district court adequately considered the factors set

forth in section 3553(a), we hold that his sentence was reasonable.

III.

Jackson also argues that the district court erred in considering Jackson’s prior convictions

in calculating his base offense level, though he concedes that his argument is contrary to the law,

and he raises it only to preserve it in case the Supreme Court revisits this issue. We are not in a

position to overturn controlling precedent. See United States v. Barnett, 398 F.3d 516, 524 (2005)

(noting that in Apprendi v. New Jersey, 530 U.S. 446, 490 (2000), “the Supreme Court expressly

excepted the fact of a prior conviction from the rule requiring issues of fact that increase a

defendant’s penalty to be submitted to the jury.”).

IV.

For the foregoing reasons, we affirm the district court.

3

The children’s mother, and Jackson’s fiancé, LaTonya Johnson, was indicted along with Jackson. At the time

of Jackson’s sentencing, she had already pled guilty and was serving a 27-month sentence.