Petition for Writ of Certiorari — John E. Jackson, Petitioner v. United States

Supreme Court briefJul 18, 2025

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No. 25-______

IN THE

Supreme Court of the United States

JOHN E. JACKSON,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITIONER’S APPENDIX

K. ANTHONY THOMAS

LOUISE ARKEL

Counsel of Record

CAROL DOMINGUEZ

DAVID HOLMAN

OFFICE OF THE FEDERAL PUBLIC DEFENDER

1002 Broad Street

Newark, New Jersey 07102

(973) 622-7535

Louise_Arkel@fd.org

TABLE OF CONTENTS

Appendix A: Court of Appeals Opinion (Mar. 21, 2025)..............................................1a

Appendix B: District Court Opinion (Aug. 7, 2023)...................................................24a

Appendix C: District Court Order (Aug. 7, 2023)......................................................33a

Appendix D: District Court Amended Judgment (Oct. 31, 2023).............................34a

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APPENDIX A

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 23-2492, 23-3016, 23-2992, 23-2508

____________

UNITED STATES OF AMERICA

CAROLYN JACKSON

Appellant in 23-2492, 23-2992

JOHN E. JACKSON

Appellant in 23-3016, 23-2508

____________

On Appeal from the United States District Court

for the District of New Jersey

(District Court Nos. 2:13-cr-00290-001, 2:13-cr-00290-002)

District Judge: Honorable Susan D. Wigenton

____________

Submitted Under Third Circuit L.A.R. 34.1(a) on

December 10, 2024

___________

Before: BIBAS, CHUNG, and ROTH, Circuit Judges

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(Filed: March 21, 2025)

Rubin M. Sinins

Herbert I. Waldman

Javerbaum Wurgaft Hicks Kahn Wikstrom

505 Morris Avenue

Suite 200

Springfield, NJ 07081

Counsel for Appellant Carolyn Jackson

Louise Arkel

Evan J. Austin

Carol Dominguez

David A. Holman

Office of Federal Public Defender

1002 Broad Street

Newark, NJ 07102

Counsel for Appellant John E. Jackson

Mark E. Coyne

John F. Romano

Steven G. Sanders

Office of United States Attorney

970 Broad Street

Room 700

Newark, NJ 07102

Counsel for Appellee

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____________

OPINION OF THE COURT

____________

CHUNG, Circuit Judge.

Carolyn Jackson and her husband, John Jackson, were

convicted of horrific child abuse after a thirty-nine-day jury

trial. The original trial judge sentenced the Jacksons three

times—twice after remand from this Court. On each appeal,

we found the sentencing judge did not sentence the Jacksons in

a manner supported by the jury’s verdict and federal sentencing

law. The Jacksons’ sentences were vacated upon a third appeal

and were remanded for resentencing with instructions that their

cases be reassigned to a different judge. The Jacksons now

bring this appeal, challenging the sentences imposed by the

new judge. We will affirm.

BACKGROUND

Because the facts have been reviewed at length in prior

cases, we do not revisit them here.1 Suffice it to say, this case

concerns serious child abuse inflicted by the Jacksons on three

For a full discussion of the facts, see United States v.

Jackson, 862 F.3d 365, 368-370 (3d Cir. 2017). This was the

first appeal, and we refer to it herein as “Jackson I.” The

second appeal was United States v. Jackson, 819 F. App’x 97,

99 (3d Cir. 2020) (“Jackson II”), and the third appeal was

United States v. Jackson, 2023 WL 2755578 (3d Cir. Apr. 3,

2023) (“Jackson III”).

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adopted children, Joshua, “C,” and “J,” all below the age of

four at the time of their abuse. The Jacksons were charged in

a fifteen-count superseding indictment with conspiracy under

N.J.S.A. § 2C:5-2 and several counts of endangering the

welfare of a child under N.J.S.A. § 2C:24-4a.2 At a jury trial

overseen by Judge Katharine Hayden, John was found guilty

of Counts 1, 3-9, and 11-12, and Carolyn was found guilty of

Counts 1-12. Counts 2, 4, 7, 8, and 11, termed the “omission

counts,” charged the Jacksons’ with withholding food, water,

and/or medical care from the children. The other counts,

known as the “commission counts,” charged the Jacksons with

forcing the children to ingest substances such as hot sauce and

red pepper flakes, and physically assaulting them with various

objects.

While Jackson III was pending, Carolyn Jackson

completed serving her most recently imposed sentence.3

Although these were state law violations, the Jackson

were charged federally because these offenses occurred “on a

military installation under the special jurisdiction of the federal

government.” Jackson I at 387. New Jersey law was

accordingly “‘assimilated’ into federal law pursuant to the

Assimilative Crimes Act (‘ACA’).” Id. at 368, 387.

John Jackson does not explicitly concede that he had not

finished serving his third sentence before it was vacated. In his

opening brief, however, he indicates that he continued to serve

his third sentence through the same date that the Third Circuit

issued judgment in Jackson III. John Opening Br. at 65-66.

Whether or not he completed his sentence does not affect the

outcome of his appeal.

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In Jackson III, we vacated the Jacksons’ sentences and

remanded for resentencing. The case was reassigned to Judge

Susan Wigenton, who ordered that presentence reports (PSRs)

be prepared for each Appellant.4 After consideration of the

entire trial record, the PSRs, the sentencing submissions, and

the parties’ presentations at a sentencing hearing, Judge

Wigenton sentenced Carolyn Jackson to a term of

imprisonment of 140 months and John Jackson to a term of

imprisonment of 108 months.

The Jacksons timely appealed.

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction under 18 U.S.C. §

3231. We have jurisdiction under 18 U.S.C. § 3742. We

review findings of fact for clear error. United States v. Grier,

475 F.3d 556, 561 (3d Cir. 2007). We review questions of law,

including whether the law of the case doctrine applies, de novo.

Monasky v. Taglieri, 589 U.S. 68, 83 (2020) (questions of

law); PDX N., Inc. v. Comm’r New Jersey Dep’t of Lab. &

Workforce Dev., 978 F.3d 871, 881 n.10 (3d Cir. 2020) (law

of the case). We review the procedural and substantive

reasonableness of a sentence for abuse of discretion. United

States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009). However,

when a party did not object to an alleged error at sentencing,

Judge Hayden had directed the U.S. Probation Office

not to prepare offense level calculations for the Jacksons’

second and third resentencings.

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we review only for plain error. United States v. Flores-Mejia,

759 F.3d 253, 255 (3d Cir. 2014).

III.

DISCUSSION

John and Carolyn Jackson raise the following issues on

appeal.5 They argue that Judge Wigenton (1) violated their

Fifth and Sixth Amendment rights when she found facts at

sentencing by a preponderance of the evidence, (2) violated

their Fifth and Sixth Amendment rights by resentencing them

after they had finished serving their previously imposed

sentences, (3) violated the law of the case doctrine,

(4) imposed procedurally unreasonable sentences, and

(5) imposed substantively unreasonable sentences. We will

affirm.

Findings of Fact at Sentencing

Facts pertinent to sentencing need only be submitted to

a jury when such facts raise the applicable statutory maximum

or mandatory minimum sentence. Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (statutory maximums); Alleyne v.

United States, 570 U.S. 99, 103 (2013) (mandatory minimum

sentences). The Jacksons argue nonetheless that their Sixth

Amendment rights to trial by jury and their Fifth Amendment

rights to due process were violated when the District Court

found, by a preponderance of the evidence, that the Jacksons’

Carolyn Jackson asserted all issues. John Jackson joins

the first two issues and appears to also join the third. John

Opening Br. at 3, 65-67. John and Carolyn each bring their

own procedural and substantive unreasonableness arguments.

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offenses caused “serious bodily injury” or involved a

“dangerous weapon.” Carolyn6 Opening Br. at 8. These

factual findings supported the District Court’s application of

the aggravated assault Guideline and resulted in higher

Guidelines range terms of imprisonment. The Jacksons argue

that the District Court’s application of the aggravated assault

Guideline makes them liable for committing aggravated

assault, a crime for which the jury did not convict them. They

also argue that the “‘statutory maximum’ for Apprendi

purposes is the maximum sentence a judge may impose solely

on the basis of the facts reflected in the jury verdict or admitted

by the defendant.” Carolyn Opening Br. at 14-15 (quoting

Blakely v. Washington, 542 U.S. 296, 303 (2004) (emphasis

omitted)). Therefore, they contend, the Sixth Amendment and

the Due Process Clause require these facts to have been found

by a jury rather than the sentencing judge. Id. at 11 (quoting

Apprendi, 530 U.S. at 496).

We have repeatedly rejected these arguments and held

that judicial findings of fact that increase the defendant’s

Guidelines range, but not the statutory maximum, do not

violate the Constitution. See, e.g., United States v. Gonzalez,

905 F.3d 165, 205-06 (3d Cir. 2018); United States v. Fisher,

502 F.3d 293, 305, 306 (3d Cir. 2007). Here, the District Court

sentenced both Jacksons to terms of imprisonment within the

statutory maximum term of imprisonment of ten years and the

To avoid confusion, we will sometimes refer to Carolyn

and John Jackson by their first names.

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Court’s factual findings did not increase that range.7

Consistent with our precedent, we conclude that the District

Court did not violate the Jacksons’ Fifth and Sixth Amendment

rights by relying upon its own factfinding in applying the

aggravated assault Guideline.

Finality of Sentence

Fifth Amendment Right Against Double

Jeopardy

The Double Jeopardy Clause of the Fifth Amendment

provides that no person shall “be subject for the same offence

to be twice put in jeopardy of life or limb.” U.S. Const. amend.

V. In the sentencing context, the double jeopardy right attaches

when a defendant has “a reasonable expectation of finality” in

his sentence. See Wilmer v. Johnson, 30 F.3d 451, 458 (3d

Cir. 1994). A defendant whose sentence is under appeal “has

no expectation of finality in his sentence until the appeal is

concluded or the time for appeal has expired.” Id. at 457

(quoting United States v. DiFrancesco, 449 U.S. 117, 136

(1980)); United States v. McMillen, 917 F.2d 773, 777 n.5 (3d

Cir. 1990) (“DiFrancesco teaches that the defendant can have

no expectation of finality of sentence until the government’s

statutory period for appeal has expired.”). Therefore, no

Double Jeopardy concern is implicated when a defendant is

For instance, Carolyn received a total sentence of 140

months, comprised of 120 months at Count One followed by

20 months on Counts Two through Twelve. Each crime of

conviction carried a maximum term of imprisonment of ten

years. Jackson I at 389; N.J.S.A. 2C:43-6a(2). None of Judge

Wigenton’s findings of fact raised those statutory maximums.

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resentenced after his sentence was vacated on appeal.

DiFrancesco, 449 U.S. at 136; see also Bozza v. United States,

330 U.S. 160, 167 (1947) (lawful resentencing after vacatur

“did not twice put petitioner in [double] jeopardy” because

“[t]he sentence as corrected, imposes a valid punishment for an

offense instead of an invalid punishment for that offense”);

United States v. Busic, 639 F.2d 940, 948 (3d Cir. 1981)

(dictum) (“Nothing in the history or policy of the [Double

Jeopardy Clause] suggests that its purposes included protecting

the finality of a sentence and thereby barring resentencing to

correct a sentence entered illegally or erroneously.”); United

States v. Guevremont, 829 F.2d 423, 427 (3d Cir. 1987).

The Jacksons argue, though, that once a defendant

completes the sentence originally imposed, though under

appeal, he has a legitimate expectation of finality.8 Like the

District Court, we recognize that this is a matter of first

impression. See United States v. Jackson, 2023 WL 5994640,

at *5 n.6 (D.N.J. Sept. 15, 2023). The Supreme Court’s

seminal decision in DiFrancesco “did not address the

application of double jeopardy principles to a defendant whose

sentence has been fully served.” See United States v.

Arrellanos-Rios, 799 F.2d 520, 523 (9th Cir. 1986) (citing 449

U.S. 117 (1980)). Our Court’s decision in United States v.

McMillen also expressly left open the possibility that “a

defendant who has completely satisfied his sentence may have

a reasonable expectation of finality as to the completed

sentence.” 917 F.2d 773, 777 n.5 (3d Cir. 1990) (citing United

As noted above, John Jackson’s continued to serve his

sentence through the day Jackson III was issued. Whether or

not he completed his sentence while his appeal was pending is

irrelevant to the outcome of this appeal.

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States v. Rico, 902 F.2d 1065, 1068–69 (2d Cir.

1990)). Today’s decision forecloses it.

To support their argument, the Jacksons cite cases that

they either misconstrue or that are readily distinguishable from

their situation. For instance, some cited cases confirm that a

district court judge can impose a new sentence without

violating the Double Jeopardy Clause.9 Other cited cases are

inapposite because they explain that a defendant’s completed

sentence on two counts cannot be adjusted after conviction on

a third count was reversed10 or that a prior sentence cannot be

amended after the time for appeal has passed11 or where the

government never appealed the sentence.12 And many of these

See Busic, 639 F.2d at 947-48 (“There is nothing in the

history or the policies of the Double Jeopardy Clause that

justifies the denial of resentencing when the sentence has been

spread erroneously over counts that have been declared

invalid.”); United States v. Silvers, 90 F.3d 95, 99 (4th Cir.

1996) (finding that resentencing on reinstated conviction did

not violate Double Jeopardy because the defendant was simply

placed in the position he would have been in had there been no

error).

United States v. Arrellano-Rios, 799 F.2d 520, 524 (9th

Cir. 1986).

United States v. Daddino, 5 F.3d 262, 265 (7th Cir.

1993).

Smith v. State, 334 So. 3d 377, 378, 379 n.4 (Fla. Dist.

Ct. App. 2022); State v. Houston, 2010 Iowa App. LEXIS

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cases state that a legitimate expectation of finality requires that

the time for appeal has passed, or the appeal is completed,13

even when the defendant has served his sentence.14

1546, *5 (Iowa Ct. App. Dec. 8, 2010) (comparing the facts

before it to a case where “the State sought review of the

defendant’s discharges from probation by timely writs of

certiorari to the supreme court” and noting that “[h]ere, the

State never timely challenged the order discharging [the

defendant] from probation”).

United States v. Rico, 902 F.2d 1065, 1068 (2d Cir.

1990) (“So long as a sentence can be increased on appeal,

defendant has no expectation of its finality” (citing

DiFrancesco, 449 U.S. at 134-136, 139)); McMillen, 917 F.2d

at 777 (“McMillen ‘is charged with knowledge of the statute

and its appeal provisions, and has no expectation of finality in

his sentence until the appeal is concluded or the time to appeal

has expired’” (quoting DiFrancesco, 449 U.S. at 136)).

State v. Lehman, 308 Kan. 1089, 1097 (2018) (“[T]he

view that the district court cannot correct an illegal sentence

after the sentence expires and the direct appeal has been

completed (or the time to appeal has lapsed) is more in keeping

with the purpose of double jeopardy protection, allowing a

person to move on with his or her life after having paid the debt

to society without wondering whether the government will

come back to extract further punishment.”); People v.

Williams, 14 N.Y.3d 198, 217 (2010) (“Even where a

defendant’s sentence is illegal, there is a legitimate expectation

of finality once the initial sentence has been served and the

direct appeal has been completed (or the time to appeal has

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Despite the vast number of cases the Jacksons cite, all

support the proposition that a defendant has no legitimate

expectation of finality in their sentence while that sentence is

under appeal.15 We decline to break from this precedent. To

do otherwise would allow the Jacksons to avoid legal sentences

expired).”); State v. Schubert, 212 N.J. 295, 312 (2012) (same);

Lanier v. State, 270 So. 3d 304, 310 (Ala. Crim. App. 2018)

(“[W]e hold that a trial court loses jurisdiction to correct an

illegal sentence once that sentence expires and the direct appeal

has been completed or the time to appeal has lapsed and that a

trial court’s correcting an illegal sentence after the expiration

of that sentence violates principles of double jeopardy.”);

People v. Velez, 19 N.Y.3d 642, 649 (2012) (“[W]e [have] held

that, where a sentence is no longer subject to appeal, the

Double Jeopardy Clause of the Federal Constitution forbids a

resentencing … after the original sentence is completed.”

(quoting Williams, 14 N.Y.3d at 217 (2010)).

See, e.g., United States v. Radmall, 340 F.3d 798, 801

(9th Cir. 2003) (when defendant’s sentence for multiple counts

reflects “his overall offense conduct rather than separate and

independent sentences on each count,” the defendant cannot

have an expectation of finality on one part of his sentence when

another part of the sentence is appealed); United States v.

Foumai, 910 F.2d 617, 621 (9th Cir. 1990) (defendant had “a

legitimate expectation of finality in his reversed conviction”

because time for appeal had passed); Jones v. Thomas, 491

U.S. 376, 387 (1989) (concluding after appeal, that “[t]he

Missouri court’s alteration of respondent’s sentence to a single

term for felony murder with credit for time served provided

suitable protection of his double jeopardy rights.”).

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and “provide [them an] unjustified windfall[,]” simply because

they received such erroneously short sentences. Jones, 491

U.S. at 387 (“[N]either the Double Jeopardy Clause nor any

other constitutional provision exists to provide unjustified

windfalls.”). Because the Jacksons’ sentences were under

appeal, they had no reasonable expectation of finality in their

sentences, completed or not, and their double jeopardy rights

did not attach.

Fifth Amendment Right to Due Process

The Jacksons also argue that, even if their resentencings

did not violate double jeopardy, their general Fifth Amendment

due process rights were violated because they had a legitimate

expectation of finality upon completion of their sentences

while Jackson III was pending. Quoting from United States v.

Davis, they argue that “[a] defendant’s due process rights may

be violated ‘when a sentence is enhanced after the defendant

has served so much of his sentence that his expectations as to

its finality have crystallized.’” 112 F.3d 118, 123 (3d Cir.

1997) (quoting United States v. Lundien, 769 F.2d 981, 987

(4th Cir. 1985)). But Davis clarified that “[a] defendant …

does not automatically acquire a vested interest in a shorter, but

incorrect sentence.” Id. (citing DeWitt v. Ventetoulo, 6 F.3d

32, 35 (1st Cir. 1993), cert. denied, 511 U.S. 1032 (1994)).

Davis also does not apply here because it addresses a

defendant’s legitimate expectation of finality in a sentence

when a habeas proceeding is pending, Davis, 112 F.3d at 123,

and had no impact on DiFrancesco’s holding that a defendant

has no reasonable expectation of finality in his sentence until

the time for appeal has passed or the appeal is completed.

The Jacksons assert two other reasons their

resentencings were fundamentally unfair and violated due

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process.

First, they rely upon cases that are easily

distinguished and do not support concluding a due process

violation occurred here.16 Second, the Jacksons argue that the

fragmented manner in which they have been sentenced means

that due process would be violated if they were resentenced.

We have now made clear, however, that there is no reasonable

expectation of finality while an appeal is pending. We decline

to impose a different rule when serial appeals are involved.

While the fragmented nature of the proceedings here may be

undesirable, it does not violate due process and certainly does

not weigh in favor of rewarding the Jacksons the windfall of

serving sentences that this Court has found to be erroneous.

Law of the Case

The law of the case is a prudential rule that “holds that

a rule of law announced in a case should later be applied to the

same issues in subsequent stages in the litigation. Law of the

case may counsel against, but does not prevent, a district court

from reconsidering its prior rulings.” Saint-Jean v. Palisades

Interstate Park Comm’n, 49 F.4th 830, 836 (3d Cir. 2022)

(internal quotations and citations omitted). Carolyn Jackson

See United States v. Ray, 578 F.3d 184, 199, 202 (2d

Cir. 2009) (concluding that a fifteen-year delay between

remand and sentencing violated due process); DeWitt v.

Ventetoulo, 6 F.3d 32, 34 (1st Cir. 1993) (holding that

reinstatement of a defendant’s life sentence violated due

process where the state had reopened a “final unappealed

decision”).

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argues that three of Judge Wigenton’s sentencing decisions17

impermissibly contradicted Judge Hayden’s earlier, law-ofthe-case decisions.

The law of the case doctrine does not apply here. We

vacated the October 15, 2021, sentencing order of Judge

Hayden and remanded for sentencing. Jackson III, at *3, 5.

When a sentence is vacated, the defendant is rendered

unsentenced. United States v. Mitchell, 38 F.4th 382, 388 (3d

Cir. 2022). Judge Wigenton thus had a clean slate on which

there was no law of the case for sentencing. See Pepper v.

United States, 562 U.S. 476, 507-08 (2011). This applies

equally to the dangerous weapons enhancement, even in light

of this Court’s Jackson II ruling that Judge Hayden had not

clearly erred when finding that various objects used by the

Jacksons were not “‘dangerous weapons[.]’” Jackson II at 101

n.10. That ruling neither concluded that Judge Hayden’s

finding was affirmatively correct, nor bound the resentencing

court to find the same.

Procedural and Substantive

Unreasonableness

District courts follow a three-step process to sentence a

defendant. United States v. Wright, 642 F.3d 148, 152 (3d Cir.

2011). “At step one, the court calculates the applicable

Guidelines range which includes the application of any

sentencing enhancements. At step two, the court considers any

These are: Judge Wigenton’s decision to calculate the

Jacksons’ sentence using eleven groupings, to use the assault

and aggravated assault Guideline for the omission counts, and

to apply the dangerous weapon sentencing enhancement.

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motions for departure and, if granted, states how the departure

affects the Guidelines calculation. At step three, the court

considers the recommended Guidelines range together with the

statutory factors listed in 18 U.S.C. § 3553(a) and determines

the appropriate sentence, which may vary upward or

downward from the range suggested by the Guidelines.” Id.

(internal citations omitted). The Jacksons argue that their

sentences were procedurally and substantively unreasonable.

As noted above, we review the procedural and substantive

reasonableness of a sentence under an abuse of discretion

standard. Tomko, 562 F.3d at 567. When a party appeals an

error to which they did not object at sentencing, we review only

for plain error. Flores-Mejia, 759 F.3d at 255.

Carolyn

Jackson’s

Procedural

Unreasonableness Arguments

“When a defendant alleges procedural error, we must

ensure that the district court did not fail to calculate (or

miscalculate) the Guidelines range; treat the Guidelines as

mandatory; gloss over the Section 3553(a) factors; choose a

sentence based on a clearly erroneous fact; or inadequately

explain the chosen sentence.” United States v. Jumper, 74

F.4th 107, 114 (3d Cir. 2023) (internal quotation marks

omitted).

Carolyn did not object to the alleged errors at

sentencing, so we review only for plain error. Flores-Mejia,

759 F.3d at 255.18 Carolyn urges us to find that the sentencing

Although Carolyn characterizes this as a substantive

unreasonableness argument, it is better analyzed for procedural

unreasonableness because she challenges the judge’s factual

findings as erroneous.

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judge abused her discretion by relying on inaccurate

information, preventing the judge from giving “rational and

meaningful consideration” to the Section 3553(a) factors.

Grier, 475 F.3d at 571. Specifically, she argues that the

sentencing court failed to recognize that: Carolyn expressed

remorse; used corporal punishment to punish all of her

children, not just her adopted children; and “C” and Joshua had

injuries the defendants did not cause. She further argues that

the sentencing court erroneously blamed Carolyn for Joshua’s

death, called the corporal punishment torture, and did not

consider Carolyn’s positive post-sentence conduct. Carolyn

Opening Br. at 50-58. We cannot conclude that the District

Court plainly erred.

First, Judge Wigenton did recognize Carolyn’s

expression of remorse and found a marginal acceptance of

responsibility. She was not required to agree with Judge

Hayden’s finding that Carolyn Jackson fully accepted

responsibility. Similarly, Judge Wigenton recognized that

Carolyn abused all of her children, and accurately noted that

she abused her adopted children more severely. Furthermore,

Judge Wigenton stated she did not impose the sentence as

means to punish the Jacksons for Joshua’s death, did not depart

upward based on her view that the children suffered torture,

and explained why she found the children’s various injuries

were caused by the defendant’s abuse.19 Finally, there is no

This is consistent with Jackson I in which we stated, “It

defies common sense to believe that the jury found that

Defendants physically assaulted their adopted children,

withheld sufficient nourishment and water from them, and

forced them to ingest hot sauce, red pepper flakes, and raw

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basis to conclude that, when Judge Wigenton stated that she

hopes Carolyn will do things differently, she did not consider

Carolyn’s post-sentence conduct. Those statements were made

in the context of analyzing the Section 3553(a) factors (e.g.,

the nature of the offense and the need for the sentence imposed

to reflect the seriousness of the offense) and recognizing the

lifelong harm inflicted upon the children. We perceive no plain

error.

John Jackson’s Procedural

Unreasonableness Argument

John Jackson argues that Judge Wigenton’s application

of the assault Guideline to the omission counts was procedural

error.20 We need not decide whether the District Court erred

because to the extent there was any error, such error was

harmless in light of the District Court’s imposition of a valid

alternative sentence.

Procedural errors at sentencing, which include

onion—but that such conduct did not cause the marks and

bruises, the malnourishment, the hypernatremia, and the

children’s other injuries and medical issues.” Jackson I at 397.

Because no Guideline has been expressly promulgated

for the state offenses of conviction, the sentencing court

applies the “most analogous” offense Guideline pursuant to

U.S.S.G. § 2X5.1. Jackson I at 371. In Jackson I, we held that

the elements-based test applies to determine which Guideline,

if any, is most analogous to the convicted offense. Id. at 376.

John argues that the District Court failed to apply an elementsbased test when determining that the assault Guideline applied

to the omission counts.

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miscalculations of the Guidelines, are subject to harmless error

review. United States v. Raia, 993 F.3d 185, 195 (3d Cir.

2021). “In the context of a Guidelines calculation error,

harmless error means that the record must demonstrate that

there is a high probability that the sentencing judge would have

imposed the same sentence under a correct Guidelines range,

that is, that the sentencing Guidelines range did not affect the

sentence actually imposed.” Id. (internal quotations omitted).

The sentencing judge can demonstrate the requisite high

probability by “explicitly stat[ing] that [she] would have

imposed the same sentence even under the correct Guidelines

range.” Id. “However, even an explicit statement that the same

sentence would be imposed under a different Guidelines range

is insufficient if that alternative sentence is not also a product

of the entire three-step sentencing process.” Id. at 196.

John Jackson argues that any error was not harmless

because the District Court only made a general statement that

it would impose the same sentence without “reveal[ing] any

consideration of the omission counts as untethered to the

guidelines.” John Opening Br. at 43-44. He argues,

essentially, that if the District Court had declined to apply the

assault Guidelines to the omission counts, it would have found

that there was no applicable Guidelines section21 and that the

appropriate sentence for these counts would have been

determined solely by the Section 3553(a) factors. Thus, the

As noted above, because no Guideline has been

expressly promulgated for the state offenses of conviction, the

sentencing court applies the “most analogous” offense

Guideline. If none are sufficiently analogous, the sentencing

court relies upon the Section 3553(a) factors in imposing a

sentence.

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argument goes, although Judge Wigenton addressed the

Section 3553(a) factors, the alleged error is not harmless

because she did not explicitly state that this analysis applied in

the absence of a Guidelines range.

We disagree. We conclude that the District Court issued

a valid alternative sentence that was a product of the three-step

sentencing process. Raia, 993 F.3d at 196. The District Court

explained she would accept the arguments of defense counsel,

that is, a Guidelines range of seventy-to-eighty-seven months

predicated on the conclusion that there was no Guidelines

section applicable to the omission counts. She then explained

that she would vary upwards to reach the sentence of 108

months based upon the facts, the history, and the circumstances

of the charged offenses. Those facts and that history were

already greatly detailed in her consideration of the

Section 3553(a) factors. Having explicitly referenced them,

the District Court need not have restated her analysis. In sum,

the District Court’s process satisfies us “that there is a high

probability that [Judge Wigenton] would have imposed the

same sentence under a correct Guidelines range.” Raia, 993

F.3d at 195 (internal quotations omitted). Any procedural error

is therefore harmless.

Substantive Unreasonableness

Arguments

Carolyn and John Jackson also argue that their

sentences are substantively unreasonable. “[D]efendants bear

a heavy burden to show that a sentence within the applicable

Guidelines range was substantively unreasonable.” United

States v. Seibert, 971 F.3d 396, 402 (3d Cir. 2020) (cleaned

up). If a sentence is procedurally sound, we assume that it is

reasonable and “affirm unless we believe that no reasonable

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court would have imposed that sentence for the reasons

provided.” Jumper, 74 F.4th at 114 (internal quotations

omitted). “As long as a sentence falls within the broad range

of possible sentences that can be considered reasonable in light

of the § 3553(a) factors, we must affirm.” United States v.

Wise, 515 F.3d 207, 218 (3d Cir. 2008).

John Jackson argues that his sentence is substantively

unreasonable because Judge Wigenton did not adequately

consider John’s history of abuse and military service as a

mitigating factor. However, “a district court’s failure to give

mitigating factors the weight a defendant contends they

deserve does not make a sentence substantively unreasonable.”

Seibert, 971 F.3d at 402 (internal quotations omitted).

Carolyn and John Jackson’s sentences are substantively

reasonable. “[T]he record as a whole reflects rational and

meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” Id. at 399-400. We cannot conclude that

no reasonable court would have imposed the sentences in light

of the egregious conduct here.

IV.

CONCLUSION

For the reasons presented above, we will affirm.

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UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 23-2492, 23-3016, 23-2992, 23-2508

____________

UNITED STATES OF AMERICA

CAROLYN JACKSON

Appellant in 23-2492, 23-2992

JOHN E. JACKSON

Appellant in 23-3016, 23-2508

____________

On Appeal from the United States District Court

for the District of New Jersey

(District Court Nos. 2:13-cr-00290-001, 2:13-cr-00290-002)

District Judge: Honorable Susan D. Wigenton

____________

Submitted Under Third Circuit L.A.R. 34.1(a) on December 10, 2024

___________

Before: BIBAS, CHUNG, and ROTH, Circuit Judges

____________

JUDGMENT

____________

This cause came to be considered on the record from the United States District

Court for the District of New Jersey and was submitted on December 10, 2024, pursuant

to Third Circuit L.A.R. 34.1(a).

On consideration whereof, it is now hereby ADJUDGED and ORDERED that the

order of the District Court entered August 7, 2023, and the judgments entered November

1, 2023, and November 2, 2023, are hereby AFFIRMED. Costs will not be taxed. All of

the above in accordance with the opinion of this Court.

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ATTEST:

s/ Patricia S. Dodszuweit

Clerk

DATE: March 21, 2025

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APPENDIX B

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHAMBERS OF

MARTIN LUTHER KING COURTHOUSE

50 WALNUT ST.

NEWARK, NJ 07101

973-645-5903

SUSAN D. WIGENTON

UNITED STATES DISTRICT JUDGE

August 7, 2023

Rubin Sinins

Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins

505 Morris Avenue

Springfield, NJ 07081

Counsel for Defendant Carolyn Jackson

Carol Dominguez

Office of the Federal Public Defender

1002 Broad Street

Newark, NJ 07102

Counsel for Defendant John E. Jackson

Desiree L. Grace

Office of the United States Attorney

970 Broad Street

Newark, NJ 07102

Counsel for the United States of America

LETTER OPINION FILED WITH THE CLERK OF THE COURT

Re:

United States v. Carolyn Jackson, et al.

Criminal Action No. 13-290 (SDW)

Counsel:

Before this Court is Defendants Carolyn Jackson (“Carolyn”) and John E. Jackson’s

(“John,” together with Carolyn, “Defendants”) motion to bar the imposition of further sentences

(D.E. 493, 495 (“Motion”)). This Court having considered the parties’ submissions, and for the

reasons discussed below, denies Defendants’ Motion.

DISCUSSION

The facts of this case have been extensively covered—in a 39-day trial, in multiple

sentencing proceedings, and in three separate opinions by the Third Circuit. Accordingly, this

Court’s recitation of the facts includes only those pertinent to resolving the instant Motion.

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John, a former major in the United States Army, and Carolyn, his wife, “inflicted

devastating abuse on their three young foster children—Joshua, J, and C—over the course of five

years, causing serious and lasting harm.” (D.E. 487-1 at 3.) The abuse occurred, at least in part,

on Picatinny Arsenal Installation in Morris County, New Jersey. 1

Defendants were first indicted in federal court on April 29, 2013. (D.E. 1.) Trial began in

October 2014. (D.E. 116 at 2). On November 14, 2014—the fifteenth day of the first trial—the

presiding judge, the Hon. Katharine S. Hayden, U.S.D.J., granted Defendants’ motion for a

mistrial. (See generally D.E. 151, 157.) On January 15, 2015, in a 15-count superseding

indictment, the Government again charged Defendants. (D.E. 175.)

On July 8, 2015, following a 39-day jury trial, Defendants were found guilty of the

following: conspiring from August 2005 to April 2010 to engage in acts that endangered their

three foster children (Count 1); physically assaulting all three children with various objects and

their hands (Counts 3, 6, and 12); withholding adequate water from J and C and prohibiting these

children from drinking water (Counts 4 and 8); forcing J to ingest hot sauce, red pepper flakes, and

raw onion, and forcing C to ingest hot sauce and red pepper flakes (Counts 5 and 9); and

withholding prompt and proper medical care for C’s dehydration and elevated sodium levels

(Count 11). (See generally D.E. 353, 354.) In addition, the jury found Carolyn—but not John—

guilty of withholding sufficient nourishment and food from Joshua (Count 2), and “[c]ausing [C]

to ingest excessive sodium and a sodium-laden substance while restricting [C’s] fluid intake,

causing [C] to suffer hypernatremia and dehydration, a life[-]threatening condition,” (Count 10).

(D.E. 487-1 at 4; see also D.E. 353 at 1, 3.)

Sentencing History

Since the jury pronounced its verdict, Defendants have been thrice sentenced, and each

time, the Third Circuit has vacated those erroneous sentences. Defendants’ first sentencing

occurred on December 15, 2015. (D.E. 407, 408.) Prior to that sentencing, the Probation Office

calculated the United States Sentencing Commission Guidelines (“Guidelines”) range of 210 to

262 months for each Defendant. (D.E. 487-1 at 4.) The Government similarly calculated a

Guidelines range of 292 to 365 months but only sought sentences of 235 months for Carolyn and

188 months for John. (D.E. 420-1 at 6.) Following a 10 1/2-hour hearing, Carolyn was sentenced

to a term of 24 months’ imprisonment followed by three years of supervised release, and John

received a three-year term of probation accompanied by 400 hours of community service and a

$15,000 fine. (D.E. 407–11.) On January 21, 2016, the Government appealed. (D.E. 413, 414.)

On July 6, 2017, the Third Circuit vacated Defendants’ sentences. (See generally D.E. 419,

420-1). In a lengthy opinion, Circuit Judge Cowen thoroughly analyzed “a number of rather

unusual sentencing issues” implicated in this case, (D.E. 420-1 at 8), and ultimately held that the

Sentencing Court (i) committed reversible error and (ii) imposed substantively unreasonable

sentences, (see generally id.). The Third Circuit then remanded the case for resentencing. (See

generally id.)

As the Third Circuit explained, “the offenses at issue here—because they occurred on a military installation under

the special jurisdiction of the federal government—were assimilated under the [Assimilative Crimes Act (“ACA”)].”

(D.E. 420-1 at 47.) The ACA “is designed to borrow state laws in order to fill gaps that exist in federal criminal laws

with respect to criminal offenses that are committed on federal enclaves.” (Id. at 8.)

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Defendants’ first resentencing occurred over the course of two days—April 11 to April 12,

2018. (D.E. 437, 438.) At the conclusion of that hearing, Carolyn was sentenced to a term of 40

months’ imprisonment followed by three years of supervised release, and John received a threeyear term of probation accompanied by 400 hours of community service. (See generally D.E. 439,

440.) On May 21, 2018, the Government again appealed, 2 (D.E. 443, 444), and on June 26, 2020,

the Third Circuit again vacated Defendants’ sentences and remanded the case for resentencing,

(see generally D.E. 451, 452-2).

The second resentencing was held on October 6, 2021. (D.E. 476, 477.) At that time, the

Government calculated a Guidelines range of 108 to 135 months for each Defendant, Defendants

calculated their Guidelines range as 57 to 71 months, and the Sentencing Court calculated a

Guidelines range of 70 to 87 months for each Defendant. (See generally D.E. 482.) The

Sentencing Court “varied significantly downward from those ranges,” however: Carolyn was

sentenced to a term of 40 months’ imprisonment (which the Sentencing Court deemed time-served)

plus one additional year of supervised release, and John was sentenced to an 18-month term of

home confinement. (D.E. 487-1 at 5–6; see also D.E. 482 at 151–55.) On November 15, 2021,

the Government once again appealed. (D.E. 478, 479.)

In October 2022—while the Government’s most-recent appeals were still pending before

the Third Circuit—Carolyn completed her term of supervised release. 3 (See id. at 6.) Just two

months later, in December 2022, the parties participated in oral argument before the Third Circuit.

(D.E. 487 at 2; D.E. 494 at 3.)

On April 3, 2023, the Third Circuit again vacated Defendants’ sentences. (See generally

D.E. 487.) In remanding the case, the Third Circuit instructed that this case be assigned to a

different judge, (D.E. 487-1 at 11–12), and on April 19, 2023, Chief Judge Renee M. Bumb

assigned it to this Court, (D.E. 485). Resentencing has been set for October 11, 2023. (D.E. 490.)

Carolyn filed the instant Motion on May 18, 2023.4 (D.E. 493.) The Government filed its

opposition on May 24, 2023. (D.E. 494.) One week later, Carolyn filed a reply, (D.E. 497), which

John joined and supplemented on June 23, 2023, (D.E. 498). At bottom, Defendants argue that

the imposition of any further sentence would violate their rights under both the Double Jeopardy

and Due Process Clauses of the Constitution.

Defendants’ arguments contradict precedent and practical application, and therefore the

Motion must be denied.

John contends that his three-year term of probation ended on September 19, 2019, while the Government’s appeals

of the April 2018 sentences were pending before the Third Circuit. (D.E. 498 at 1.)

On October 11, 2022, the Probation Office for the Middle District of Florida advised Carolyn that her “supervision

officially terminated,” and that she “ha[d] no further obligation to th[at] office.” (D.E. 493-2 at 6.) In February 2023,

the State of Florida restored Carolyn’s voting rights. (Id. at 8.)

On May 30, 2023, John “join[ed] Carolyn Jackson’s letters and motions filed to date.” (D.E. 495.)

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The Double Jeopardy Clause

The Double Jeopardy Clause of the Fifth Amendment provides that “[n]o person shall . . .

be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. CONST. amend.

V. This constitutional guarantee “affords three protections to the criminal defendant.” Jones v.

Thomas, 491 U.S. 376, 380–81 (1989). “The first two[] . . . protect against a second prosecution

for the same offense, and against a second prosecution for the same offense after conviction.” Id.

at 381 (citing Ohio v. Johnson, 467 U.S. 493, 498 (1984)). The third such protection safeguards

criminal defendants “against ‘multiple punishments for the same offense’ imposed in a single

proceeding.” Id. (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).

The Supreme Court has identified “two vitally important interests” embodied by the

Double Jeopardy Clause:

The first is the “deeply ingrained” principle that “the State with all

its resources and power should not be allowed to make repeated

attempts to convict an individual for an alleged offense, thereby

subjecting him to embarrassment, expense and ordeal and

compelling him to live in a continuing state of anxiety and

insecurity, as well as enhancing the possibility that even though

innocent he may be found guilty.” The second interest is the

preservation of “the finality of judgments.”

Yeager v. United States, 557 U.S. 110, 117–18 (2009) (internal citations omitted). Because of

these vital interests, “[a]n acquittal is accorded special weight” under the Double Jeopardy Clause.

United States v. DiFrancesco, 449 U.S. 117, 129 (1980). Indeed, “‘[t]he constitutional protection

against double jeopardy unequivocally prohibits a second trial following an acquittal,’ for the

‘public interest in the finality of criminal judgments is so strong that an acquitted defendant may

not be retried even though “the acquittal was based upon an egregiously erroneous foundation.”’”

Id. (quoting Fong Foo v. United States, 369 U.S. 141, 143 (1962)).

The foregoing interests do not apply with equal force in the context of an appealed

noncapital sentence.5 Id. at 730. As the Supreme Court explained in United States v. DiFrancesco:

The double jeopardy considerations that bar reprosecution after an

acquittal do not prohibit review of a sentence. We have noted . . .

the basic design of the double jeopardy provision, that is, as a bar

against repeated attempts to convict, with consequent subjection of

the defendant to embarrassment, expense, anxiety, and insecurity,

and the possibility that he may be found guilty even though

innocent. These considerations, however, have no significant

In Bullington v. Missouri, the Supreme Court held that the Double Jeopardy Clause applies to capital-sentencing

proceedings where such proceedings “have the hallmarks of [a] trial on guilt or innocence.” 451 U.S. 430, 439 (1981).

The Supreme Court expressly “confined” Bullington’s rationale “to the unique circumstances of capital sentencing,”

and reiterated “that the Double Jeopardy Clause does not preclude retrial on a prior conviction allegation in the

noncapital sentencing context.” Monge v. California, 524 U.S. 721, 734 (1998).

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application to the prosecution’s statutorily granted right to review a

sentence.

DiFrancesco, 449 U.S. at 136. Therefore, the Supreme Court stated, when the government

exercises a statutorily granted right to appeal a sentence, a defendant has “no expectation of finality

in his sentence until the appeal is concluded or the time to appeal has expired.” Id. The Third

Circuit does not deviate from that principle. See United States v. Norwood, 49 F.4th 189, 211 (3d

Cir. 2022) (“A defendant may not have a legitimate expectation in the finality of his sentence

where the law explicitly provides for the possibility that a sentence may be later increased . . . .”

(citing DiFrancesco, 449 U.S. at 137)).

Here, the Government had a right under 18 U.S.C. § 3742(b) to appeal Defendants’

sentences and, in fact, timely appealed. Defendants, then, “ha[d] no expectation of finality in

[their] sentence[s] until the appeal [was] concluded” in their favor. DiFrancesco, 449 U.S. at 136.

In other words, once the Government filed its timely appeals, it eviscerated any expectation of

finality the Defendants may have had in their sentences. See id. at 139 (“Although it might be

argued that the defendant perceives the length of his sentence as finally determined when he begins

to serve it, . . . that argument has no force where . . . Congress has specifically provided that the

sentence is subject to appeal. Under such circumstances there can be no expectation of finality in

the original sentence.” (internal citations omitted)).

Defendants insist that DiFrancesco’s rationale does not control here. (D.E. 493-1 at 8–

16.) Instead, Defendants cull together dicta from non-binding and inapposite cases to support an

“I-finished-my-sentence” exception to DiFrancesco’s unambiguous holding. (Id.) That exception

is unfounded. Neither the Supreme Court nor the Third Circuit 6 has adopted it, and this Court

declines to do so now.

Although Defendants assert that the Third Circuit’s decision in United States v. McMillen left open the possibility

that “a defendant who has completely satisfied his sentence may have a reasonable expectation of finality as to the

completed sentence,” the McMillen Court expressly declined to rule on the issue. 917 F.2d 773, 777 n.5 (3d Cir.

1990). Defendants cannot reverse engineer that dictum into a bright-line, “I-finished-my-sentence” exception. To be

sure, such an exception in the double-jeopardy context would defy precedent and fundamental considerations. As the

Supreme Court has unequivocally stated,

This Court has rejected the “doctrine that a prisoner, whose guilt is established by

a regular verdict, is to escape punishment altogether because the court committed

an error in passing the sentence.” The Constitution does not require that

sentencing should be a game in which a wrong move by the judge means

immunity for the prisoner. In this case the court “only set aside what it had no

authority to do, and substitute[d] directions required by the law to be done upon

the conviction of the offender.” It did not twice put petitioner in jeopardy for the

same offense. The sentence, as corrected, imposes a valid punishment for an

offense instead of an invalid punishment for that offense.

Bozza v. United States, 330 U.S. 160, 166–67 (1947) (internal citations omitted); see also United States v. Busic, 639

F.2d 940, 946 (3d Cir. 1981) (“Nothing in the history or policy of the [Double Jeopardy] clause suggests that its

purposes included protecting the finality of a sentence and thereby barring resentencing to correct a sentence entered

illegally or erroneously.”). Put differently, “neither the Double Jeopardy Clause nor any other constitutional

provisions exist to provide unjustified windfalls.” Jones, 491 U.S. at 387. Defendants’ suggested exception, however,

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The Due Process Clause

Defendants’ arguments under the Due Process Clause are equally strained. The Due

Process Clause of the Fifth Amendment states that “[n]o person shall . . . be deprived of life, liberty,

or property, without due process of law.” U.S. CONST. amend. V. The Due Process Clause applies

to “the sentencing process,” Gardner v. Florida, 430 U.S. 349, 358 (1977), and it has developed

“both substantive and procedural components,” Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650,

658 (3d Cir. 2011) (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998)). On the one

hand, “[t]he substantive component of the Due Process Clause limits what government may do

regardless of the fairness of the procedures that it employs.” Id. at 659 (quoting Boyanowski v.

Cap. Area Intermediate Unit, 215 F.3d 396, 399 (3d Cir. 2000)). On the other hand, “[p]rocedural

due process governs the manner in which the government may infringe upon an individual’s life,

liberty, or property.” Id. at 662. “The Clause ‘centrally concerns the fundamental fairness of

governmental activity.’” N.C. Dep’t of Revenue v. The Kimberley Rice Kaestner 1992 Fam. Tr.,

139 S.Ct. 2213, 2219 (2019) (quoting Quill Corp. v. North Dakota, 504 U.S. 298, 312 (1992)).

In United States v. Davis, the Third Circuit noted that the principles of fundamental fairness

underlying the Due Process Clause may bar a district court from imposing a “later upward revision

of a sentence.” 112 F.3d 118, 123 (3d Cir. 1997) (citing DeWitt v. Ventetoulo, 6 F.3d 32, 35 (1st

Cir. 1993), cert. denied, 511 U.S. 1032 (1994)). Specifically, the Third Circuit remarked:

A defendant’s due process rights may be violated “when a sentence

is enhanced after the defendant has served so much of his sentence

that his expectations as to its finality have crystallized and it would

be fundamentally unfair to defeat them.” A defendant, however,

does not automatically acquire a vested interest in a shorter, but

incorrect sentence. It is only in an extreme case that a later upward

revision of a sentence is so unfair that it is inconsistent with the

fundamental notions of fairness found in the due process clause.

Id. (internal citations omitted). “[T]o determine whether the defendant lacked a legitimate

expectation of finality,” the Third Circuit looked to three factors: (1) “whether the defendant

himself challenged the sentence,” (2) “whether the defendant has completed his prison term,” and

(3) “whether the resentencing gives the defendant a lower overall sentence.” United States v.

Grasso, 197 F. App’x 200, 205 (3d Cir. 2006) (citing Davis, 112 F.3d at 123–24).

Defendants argue that Davis controls and prohibits this Court from resentencing them.

(D.E. 493-1 at 17.) Defendants’ reliance on Davis is misplaced. The posture of Davis—a

resentencing in a habeas proceeding long after the time to file direct appeals had expired—is

wholly different from the case at bar, and thus Davis does not apply here.7 A recent decision in

this District further supports that conclusion.

would undoubtedly do so—that is, erroneously low sentences that expire before the appellate court has a chance to

rule would become infallible.

To be sure, the Davis factors are plainly incompatible in this case—indeed, their application in this context would

yield absurd results. For instance, in cases where the government exercises its statutorily granted right to appeal an

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In Locane v. McGill, the petitioner, Amy Locane, was subjected to several resentencing

hearings in state court following erroneous sentencing decisions by trial judges. Civ. No. 21-8888,

2022 WL 17625976, at *1–3 (D.N.J. Dec. 13, 2022). Locane claimed that the final resentencing

violated her due process rights because it was imposed after she had served “both her original

prison sentence and supervised release term.” Id. at *8. In rejecting Locane’s argument, Judge

Shipp held:

The context of [Davis’] holding—a resentencing in a habeas

proceeding long after direct appeals had ended—is substantially

different from the one presented in this matter. [Locane] at no point

had a true expectation of finality in her sentence as the State

appealed each of the first three sentences within days of their

issuance and well within the statutory time period, unlike a

petitioner who is resentenced long after any direct appeal concluded

and following collateral proceedings.

Id. This Court is persuaded by the logic set forth in Locane,8 and similarly finds that Davis is

inapplicable to the case at bar.

In this Court’s view, criminal defendants can have no true expectation of finality in cases

where, as here, the government timely exercises its statutorily granted right to file a direct appeal

of an erroneous sentence. See, e.g., United States v. Arrellano-Rios, 799 F.2d 520, 524 (9th Cir.

1986) (“There can be no expectation of finality in sentences that are illegal and that were under

challenge by the government from the moment the district court judges suggested the sentences

they proposed to impose.” (citation omitted)). This matter presents no exception to that rule.

Even if, as Defendants suggest, the fundamental fairness inquiry is “necessarily . . . factsensitive,” the facts of this case do not weigh in their favor. (D.E. 497 at 13.) Carolyn claims that

she had an expectation in the finality of her sentence on October 5, 2022—the day her one-year

term of supervised release concluded. (D.E. 493-1 at 8.) By that time, however, the Government

had already filed its appeal to the Third Circuit, and the parties had fully briefed it. Furthermore,

in December 2022—just two months after Carolyn purportedly believed that her sentence was

final—her attorneys were arguing the appeal before the Third Circuit. Carolyn, represented by

able counsel, undoubtedly knew that the Government’s direct appeal challenging the validity of

her sentence was still pending. She plainly did not have a crystallized expectation in the finality

erroneous sentence, two of the three Davis factors—whether the defendant challenged the sentence and whether

resentencing would give him a lower overall sentence—would automatically favor a defendant. And, in the case of

an erroneously low sentence that lapses before the appellate court has time to address its validity, all three factors

would instantly weigh in the defendant’s favor. Such a rule would “provide unjustified windfalls” to criminal

defendants, Jones, 491 U.S. at 387, by allowing them to “escape punishment simply because the court committed error

in passing sentence,” Evans, 645 F.3d at 662.

Notably, after Judge Shipp denied Locane’s motion, Locane filed with the Third Circuit a request for a certificate of

appealability. In denying Locane’s request, the Third Circuit stated, “Essentially for the reasons given by the District

Court, Locane has not shown that jurists of reason would debate the District Court’s decision to deny her Double

Jeopardy and Due Process claims.” Locane v. McGill, No. 23-1072, 2023 WL 4491755, at *1 (3d Cir. May 17, 2023)

(citing Monge, 524 U.S. at 724–30 and DiFrancesco, 449 U.S. at 139).

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of her sentence. For similar reasons, John had no true expectation of finality in his erroneous

sentence of probation that expired during the pendency of the Government’s second appeal. 9

In sum, Defendants, both represented by able counsel, were fully aware that the

Government had timely filed direct appeals challenging the Sentencing Court’s sentencing

decisions. Under such circumstances, Defendants could have no crystallized expectation of

finality in their sentences. Therefore, neither the Double Jeopardy Clause nor the principles of

fundamental fairness underlying the Due Process Clause bar this Court from imposing a further

sentence,10 and Defendants’ Motion must be denied.

In conducting Defendants’ second resentencing—i.e., the third sentencing—Judge Hayden

aptly noted the “tortured procedural history” of this case:

Carolyn Jackson has served 40 months [in prison]. She served it in

two separate sentences. Twice she has surrendered. Twice she has

served her sentence. Twice she has been mustered out. Twice she

has been put on supervised release . . . .

John Jackson . . . . has been given two terms of probation. He has

served them. He is finished. One very important point . . . is that

Mr. Jackson wound up with a better sentence the second time than

the first time . . . .

(D.E. 482 at 139, 143.) Since that hearing, Defendants’ already-protracted sentencing history has

been further prolonged. Judicial error is largely to blame. And while the Constitution demands

that, upon resentencing, this Court “fully credit” the “punishment already exacted” on Defendants,

McMillen, 917 F.2d at 777 (quoting Pearce, 395 U.S. at 718–19), it does not require that

Defendants “escape punishment simply because the court committed error in passing sentence,”

Evans, 645 F.3d at 662 (citing Busic, 639 F.2d at 946).

John contends that, because his term of probation ended before the Third Circuit issued its 2020 opinion, his dueprocess rights were violated at the second resentencing in October 2021. (D.E. 498 at 2.) As an initial matter, it is

unclear whether John waived this argument. In any event, John has offered no facts to show that he had a legitimate

expectation of finality in his sentence, and therefore, this Court holds that John—like Carolyn—did not have a

crystallized expectation of finality in his sentence while it was on direct appeal to the Third Circuit.

Here, Defendants again rely on several out-of-circuit cases in an effort to create a bright-line, “I-finished-mysentence” rule under the Due Process Clause. (D.E. 493-1 at 18–21.) Defendants’ arguments are, once again,

unpersuasive. The cases cited by Defendants do not bind this Court and, in any event, are distinguishable from the

case at bar.

Case 2:13-cr-00290-SDW

Document 500

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32a

Page 9 of 9 PageID: 13957

CONCLUSION

For the foregoing reasons, Defendants’ Motion is DENIED.11 An appropriate order

follows.

___/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig: Clerk

cc:

Parties

On May 10, 2023, counsel for Carolyn requested that this Court limit the scope of the Probation Office’s PreSentence Report (“PSR”). (D.E. 491.) John joined this request on May 30, 2023. (D.E. 495.) Defendants contend

“that the Probation Department is simply in no position to determine the ‘circumstances of the offense’ in this case,”

and that “the inclusion of the Probation Department’s determination as to the ‘circumstances of the offense’ may add

an unwarranted, and prejudicial, imprimatur of reliability to the government’s narrative.” (D.E. 491 at 2.) Defendants

further assert that, “[s]ince the Guidelines calculation depends upon the underlying factual findings, such a calculation

cannot be made” by the Probation Office. (Id.) This Court disagrees and finds no compelling reason to limit the

preparation of the PSR. Defendants are free to dispute the content and scope of the PSR at the time of resentencing.

This Court will fairly consider the arguments of all parties. Accordingly, Defendants’ request to limit the scope of the

PSR is denied.

Case 2:13-cr-00290-SDW

Document 501

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33a

APPENDIX C

Page 1 of 1 PageID: 13958

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

UNITED STATES OF AMERICA,

CAROLYN JACKSON, et al.,

Defendant.

Crim. No. 13-290 (SDW)

ORDER

August 7, 2023

WIGENTON, District Judge.

This matter having come before this Court on Defendants Carolyn Jackson and John E.

Jackson (“Defendants”) Motion to Bar the Imposition of Further Sentences (D.E. 493, 495

(“Motion”)), and this Court having considered the parties’ submissions, for the reasons set forth

in this Court’s Letter Opinion dated August 7, 2023,

IT IS on this 7th day of August 2023,

ORDERED that Defendants’ Motion is DENIED; and

ORDERED that Defendants’ request to limit the Probation Office’s Presentencing Report

(D.E. 491) is DENIED.

__ _/s/ Susan D. Wigenton_____

SUSAN D. WIGENTON, U.S.D.J.

Orig:

cc:

Clerk

Parties

Case 2:13-cr-00290-SDW

Document 530

AO245C (Mod. 0/NJ 12/06)Sheet 1 - Amended Judgment in a Criminal Case

Filed 10/31/23

34a

Page 1 of 6 PageID: 14931

APPENDIX D

UNITED STATES DISTRICT COURT

District of New Jersey

UNITED STATES OF AMERICA

CASE NUMBER

2:13-CR-00290-SDW-2

JOHN E. JACKSON

Defendant.

AMENDED JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Date of Original Judgment: 10/14/2021

Reason for Amendment: Correction of Sentence on Remand (18 U.S.C. §§ 3742(f)(1) and (2))

The defendant, JOHN E. JACKSON, was represented by CAROL DOMINGUEZ, ESQ. (AFPD) and DAVID A.

HOLMAN, ESQ. (AFPD).

The defendant has been found not guilty on count(s) 2s, 10s, 13s of the SUPERSEDING INDICTMENT and is

discharged as to such count(s).

The defendant was found guilty on count(s) 1s, 3s, 4s, 5s, 6s, 7s, 8s, 9s, 11s, 12s by a jury verdict on 7/8/2015 after a plea

of not guilty. Accordingly, the court has adjudicated that the defendant is guilty of the following offense(s):

Title & Section

Nature of Offense

Date of Offense

Count

Number(s)

18:13 AND

N.J.S.A. 2C:5-2

CONSPIRACY TO ENDANGER THE WELFARE OF A

CHILD

8/2005-4/23/2010

18:13 AND 2,

AND N.J.S.A.

2C:24-4A