Jackson v. United States

9 F. App'x 550
CourtCourt of Appeals for the Seventh Circuit
DecidedMay 23, 2001
DocketNo. 99-2817
StatusPublished

This text of 9 F. App'x 550 (Jackson v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jackson v. United States, 9 F. App'x 550 (7th Cir. 2001).

Opinion

ORDER

On April 3, 1995, Carletus Jackson pleaded guilty to charges of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 846, possession with [552]*552intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), using and carrying a firearm during and in relation to the drug trafficking conspiracy, in violation of 18 U.S.C. § 924(c), and witness tampering in violation of 18 U.S.C. § 1512(b)(1). In December 1995, after Jackson pleaded guilty, but before he was sentenced, the Supreme Court announced its decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). In Bailey, the Court held that a § 924(c) “use” conviction requires evidence sufficient to show active employment of a firearm, not just possession, during and in relation to the predicate drug crime. Id. at 142. Although Bailey’s change in the law may have provided grounds for Jackson to challenge his guilty plea and resulting § 924(c) conviction, Jackson did not do so and instead proceeded to sentencing. In April 1996, he was sentenced to 384 months of imprisonment, but in January 1997, his sentence was reduced substantially pursuant to Fed. R.Crim.P. 35(b) to 256 months of imprisonment, a term that included a 60-month consecutive sentence for the § 924(c) conviction. Jackson did not appeal either his sentence or conviction.

Instead, a few months later, in April 1997, Jackson filed a pro se § 2255 motion to vacate, set aside or correct his sentence. Jackson listed three grounds for his challenge: (1) his guilty plea lacked a factual basis in that neither the evidence nor the Rule 11 colloquy demonstrated the “using” or “carrying” of a firearm in accordance with Bailey; (2) Jackson’s counsel was ineffective in failing to object to the government’s lack of evidence in light of Bailey; and (3) the government had violated 21 U.S.C. § 851(a)(1) by not filing an information stating the previous convictions on which it was relying for sentencing. The district court denied Jackson’s motion and also declined his request for a certificate of appealability on the § 851 issue. This court, however, granted a certificate of appealability on Jackson’s first claim on November 21, 2000, in which two issues were identified: (1) whether Jackson’s challenge to his § 924(c) conviction under Bailey was properly presented in light of his guilty plea and his failure to appeal; and (2) whether there was a sufficient factual basis under Bailey for Jackson’s plea of guilty to using and carrying a firearm. (Our grant of a certificate of appealability did not reach Jackson’s ineffective assistance of counsel claim, and we reject any implicit invitation he may be offering to expand the case now to include it.) We review the district court’s legal decision de novo and its findings of fact for clear error. Gray-Bey v. United States, 156 F.3d 733, 737 (7th Cir.1998).

As counsel for the United States acknowledged, the Supreme Court’s decision in Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), disposes of the first issue presented in the certificate of appealability. There the Court ruled that a petitioner who was convicted before Bailey for conduct that Bailey makes clear is not criminal conduct, may bring a § 2255 collateral challenge to the conviction, notwithstanding the entry of a guilty plea. In this situation, the Court reasoned, the defendant has not made a knowing and voluntary plea: “neither [the defendant], nor his counsel, nor the court correctly understood the essential elements of the crime with which he was charged.” Id. at 618. Additionally, the petitioner’s failure to appeal does not preclude a § 2255 challenge. Instead, the petitioner has only procedurally defaulted his claim. As is normally true with procedural default, his case may go forward only if he can either claim cause for his failure to appeal and prejudice resulting therefrom, see Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), or actual innocence, Bousley, 523 [553]*553U.S. at 622. Here, Bousley establishes that the actual innocence route is available to Jackson, and he may present the claim that he did not “use” or “carry” a firearm, as those terms are defined in the statute.

Turning to the second issue, we must now determine whether, using Bailey standards, the district court had‘before it a sufficient factual basis for Jackson’s plea of guilty on the firearms count. See Stan-back v. United States, 113 F.3d 651, 656 (7th Cir.1997). Because the underlying count charged a conspiracy, we look at not only Jackson’s own conduct but also the conduct of his co-conspirators that was in furtherance of the conspiracy and reasonably foreseeable to Jackson. Woodruff v. United States, 131 F.3d 1238, 1243 (7th Cir.1997). The government concedes that it cannot establish “use” under the new Bailey rules, but argues that it did establish “carrying,” the definition of which was not affected by Bailey. See Broadway v. United States, 104 F.3d 901, 904 (7th Cir. 1997) (“Bailey interpreted only the ‘use’ prong and left the ‘carry’ prong untouched.”). Bailey itself emphasized that conduct not rising to the level of “use” may still fall within the separate “carry” prong. 516 U.S. at 150. See also Muscarello v. United States, 524 U.S. 125, 136-37, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998) (considering the “carrying” part of the statute and comparing it to Bailey’s holding about “use”). Accordingly, pre-Bailey convictions can still be affirmed where the actions of a defendant or his co-conspirators clearly fit the definition of “carry” even if they may not also qualify as “use.” This is true even when an indictment charges a defendant with “using and carrying.” See Arango-Alvarez v. United States, 134 F.3d 888, 891 n. 2 (7th Cir.1998).

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Related

Wainwright v. Sykes
433 U.S. 72 (Supreme Court, 1977)
Bailey v. United States
516 U.S. 137 (Supreme Court, 1995)
Bousley v. United States
523 U.S. 614 (Supreme Court, 1998)
Muscarello v. United States
524 U.S. 125 (Supreme Court, 1998)
Michael A. Broadway v. United States
104 F.3d 901 (Seventh Circuit, 1997)
Garrie L. Stanback v. United States
113 F.3d 651 (Seventh Circuit, 1997)
Thomas A. Woodruff v. United States
131 F.3d 1238 (Seventh Circuit, 1998)
Luis Arango-Alvarez v. United States
134 F.3d 888 (Seventh Circuit, 1998)
Donovan Howard v. United States
135 F.3d 506 (Seventh Circuit, 1998)
Anthony J. Gray-Bey v. United States
156 F.3d 733 (Seventh Circuit, 1998)
United States v. Pedro Martinez, Iii, A/K/A Pete
169 F.3d 1049 (Seventh Circuit, 1999)

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Bluebook (online)
9 F. App'x 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jackson-v-united-states-ca7-2001.