United States v. Alton Jackson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 8, 2021
• Docket: 20-13277
• Status: Unpublished

Opinion

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-13277 Non-Argument Calendar ________________________

D.C. Docket No. 2:19-cr-00045-SPC-NPM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee, versus

ALTON JACKSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 8, 2021)

Before JILL PRYOR, LUCK and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Alton Jackson appeals the district court’s imposition of a

75-month sentence, imposed above the Guidelines range, after pleading guilty to USCA11 Case: 20-13277 Date Filed: 09/08/2021 Page: 2 of 15

being a felon in possession of a firearm. Jackson argues that his sentence is

procedurally unreasonable because the district court (1) misinterpreted and

misapplied U.S.S.G. § 2K2.1; (2) departed upward from the Guidelines range

under U.S.S.G. § 4A1.3 without following the proper procedures; and (3)

considered his juvenile adjudications without accounting for his youth and

immaturity at the time that he committed the offenses, and considered, in

evaluating his criminal history, offenses of which he was never convicted. After

reading the parties’ briefs and reviewing the record, we affirm the district court’s

imposition of Jackson’s 75-month sentence.

I.

Jackson argues that the district court unreasonably applied the U.S.S.G.

§ 2K2.1 enhancement to his case because the Sentencing Commission

(“Commission”) lacked the authority to institute the enhancement, and the district

court erroneously found that the attached device on the firearm he sold did not fall

under the enhancement. He further argues that the Commission only established

this enhancement after Congress passed the Violent Crime Control and Law

Enforcement Act of 1994 (“Act”), which contained a similar provision. Because

the Act expired in 2004, Jackson reasons, the Commission lacks the constitutional

power to enforce the enhancement, and the district court’s sentence with the

enhancement contradicts Congress’s intent in allowing the Act to expire. Jackson

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also contends that even if the enhancement is properly applied to his sentence, the

district court still erred in applying it because the gun in question falls within an

exception to the enhancement.

We review de novo a district court’s statutory interpretations. United States

v. Castro, 455 F.3d 1249, 1251 (11th Cir. 2006). We also review de novo the

district court’s legal interpretations of the Sentencing Guidelines, taking into

consideration the language of both the Guidelines and the commentary. United

States v. Fulford, 662 F.3d 1174, 1177 (11th Cir. 2011). We give the language of

statutes and the Guidelines their “plain and ordinary meaning.” Id. (quoting

United States v. Sutton, 302 F.3d 1226, 1227 (11th Cir. 2002)). Factual findings in

support of a sentence enhancement are reviewed for clear error, and applications of

the Guidelines to the facts are reviewed “with due deference.” United States v.

Rodriguez-Lopez, 363 F.3d 1134, 1136-37 (11th Cir. 2004) (quotation marks

omitted). We will conclude that a factual finding is clearly erroneous only if we

are left with a “definite and firm conviction that a mistake has been committed.”

Id. at 1137 (quotation marks omitted). The government must prove the

applicability of any challenged sentencing enhancement by a preponderance of the

evidence. United States v. Victor, 719 F.3d 1288, 1290 (11th Cir. 2013).

To determine whether a sentence is procedurally reasonable, we ask whether

“the district court: (1) properly calculated the Guidelines range; (2) treated the

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Guidelines as advisory; (3) considered the 18 U.S.C. § 3553(a) factors; (4) did not

select a sentence based on clearly erroneous facts; and (5) adequately explained the

chosen sentence.” United States v. Wayerski, 624 F.3d 1342, 1353 (11th Cir.

2010). After the district court properly calculates the Guidelines range, it has

discretion to sentence the defendant outside that range if the judge considers the 18

U.S.C. § 3553(a) factors and ensures that the deviation from the Guidelines is

justified. Gall v. United Sates, 552 U.S. 38, 49-50, 128 S. Ct. 586, 596-97 (2007).

The duties of the Sentencing Commission are set forth in 28 U.S.C. § 994.

Section 994(a) provides, inter alia, that the Commission shall promulgate and

distribute Guidelines to determine a sentence in a criminal case, and it shall publish

“general policy statements regarding application of the guidelines or any other

aspect of sentencing or sentence implementation that in the view of the

Commission would further the purposes set forth in section 3553(a)(2) of title 18,

United States Code.” 28 U.S.C. § 994(a)(1)-(2). This section is the enabling

statute for the Sentencing Guidelines as a whole and gives the Commission “broad

authority to promulgate guidelines and policy statements.” United States v.

Pridgeon, 853 F.3d 1192, 1199 (11th Cir. 2017). “The authority granted by

§ 994(a) is implicit in all the provisions of the guidelines.” United States v. Smith,

54 F.3d 690, 693 (11th Cir. 1995) (quotation marks and alteration omitted,

emphasis in original).

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The Violent Crime Control and Law Enforcement Act of 1994 (“the Act”)

prohibited the ownership or possession of “large capacity ammunition feeding

device[s],” defining such devices as those capable of being “readily restored or

converted to accept, more than 10 rounds of ammunition” but excepting “attached

tubular device[s] designed to accept, and capable of operating only with, .22

caliber rimfire ammunition.” 18 U.S.C. § 921(a)(1), (b)(A)-(B) (1994). Pursuant

to its own terms, the Act expired in 2004. See Pub. L. No. 103–322, § 110105.

In 1995, the Sentencing Commission instituted a base offense level of 22 for

crimes that “involved a firearm described in 26 U.S.C. 5845(a) or 18 U.S.C.

921(a)(30)” when the defendant had a prior conviction of a violent crime or a

controlled substance offense. U.S.S.G. § 2K2.1(a)(3) (1995). After the Act

expired, the Commission removed the reference to § 921(a) and revised § 2K2.1(a)

to give a base offense level of 22 for a crime involving any “semiautomatic firearm

that is capable of accepting a large capacity magazine” when the defendant already

had a felony conviction for a controlled substance offense. Id. § 2K2.1(a)(3)

(2006). Section 2K2.1(a)(3) contains the same language in the current edition of

the Guidelines. See id. § 2K2.1(a)(3) (2018). The commentary to the guideline

provides that a semiautomatic firearm capable of accepting a large-capacity

magazine is a gun “that has the ability to fire many rounds without reloading”

because, at the time of the offense, it was, in relevant part, attached to a magazine

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or similar device that could accept more than 15 rounds of ammunition. Id.,

comment. (n.2). The commentary excludes “a semiautomatic firearm with an

attached tubular device capable of operating only with .22 caliber rim fire

ammunition.” Id.

Initially, we note that when an appellant raises an issue for the first time in a

reply brief, that issue is considered abandoned, and we need not address it. United

States v. Whitesell, 314 F.3d 1251, 1256 (11th Cir. 2002). Further, to the extent

that Jackson argues that the Commission violated the separation of powers, he has

abandoned this argument by failing to raise it in his initial brief.

Our review convinces us that the district court correctly determined that the

Commission gained its power to promulgate the § 2K2.1 enhancement under 24

U.S.C. § 994(a), not the Act, so it had the power to retain the enhancement after

the Act expired. Contrary to Jackson’s argument that the district court’s narrow

reading of the commentary to § 2K2.1 rendered its application of the enhancement

mandatory, the district court was required to interpret § 2K2.1 and base its

Guidelines calculation on that interpretation, also recognizing that the Guidelines

were advisory. Further, because the government presented evidence showing that

the magazine was not tubular, and thus fell within the § 2K2.1 enhancement, the

district court did not clearly err in concluding that the government proved by a

preponderance of the evidence that the enhancement applied. At sentencing, an

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agent with the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) testified that a

tubular device is one attached to the gun’s barrel, while the device at issue in this

case was box-like and not attached to the barrel. The district court was entitled to

rely on this testimony to find that the enhancement applied.

II.

Jackson argues that the district court used a departure, not a variance, to

increase his sentence above the Guidelines range and did not follow proper

procedure in departing from the Guidelines range and did not sufficiently justify

the departure. We ordinarily review a district court’s decision to apply a departure

for an abuse of discretion. United States v. Flanders, 752 F.3d 1317, 1341 (11th

Cir. 2014). In reviewing a departure, we first “determine whether the sentence was

imposed either in violation of law or as a result of an incorrect application of the

Guidelines,” and “[i]f the district court misapplied the guidelines, we will vacate

the sentence unless we conclude that the error was harmless.” United States v.

Williams, 989 F.2d 1137, 1140 (11th Cir. 1993) (internal quotation marks omitted).

However, when a party fails to challenge the district court’s departure

procedure when given the opportunity to do so, the issue is reviewed only for plain

error. United States v. Maurice, 69 F.3d 1553, 1557-58 (11th Cir. 1995). Under

plain error review, the defendant has the burden to show that “there is (1) error

(2) that is plain and (3) that affect[s] substantial rights.” United States v. Monroe,

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353 F.3d 1346, 1349 (11th Cir. 2003) (quotation marks omitted, alteration in

original). “If all three conditions are met, an appellate court may then exercise its

discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation

marks omitted, alteration in original). A defendant’s substantial rights are

impacted when the district court’s error affected the outcome of the proceedings

below. Flanders, 752 F.3d at 1333. “When the explicit language of a statute or

rule does not specifically resolve an issue, there can be no plain error where there

is no precedent from the Supreme Court or this Court directly resolving it.” United

States v. Kushmaul, 984 F.3d 1359, 1363 (11th Cir. 2021) (quoting United States v.

Castro, 455 F.3d 1249, 1253 (11th Cir. 2006)).

A district court may depart from the advisory sentencing range “[i]f reliable

information indicates that the defendant’s criminal history category substantially

under-represents the seriousness of the defendant’s criminal history or the

likelihood that the defendant will commit other crimes.” U.S.S.G. § 4A1.3(a)(1).

The extent of the departure should be determined by reference to the criminal

history category “applicable to defendants whose criminal history or likelihood to

recidivate most closely resembles” that of the individual being sentenced. Id.

§ 4A1.3(a)(4)(A).

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Before applying an upward departure pursuant to § 4A1.3, the district court

must give the defendant advanced notice that it is considering such a departure.

United States v. Hall, 965 F.3d 1281, 1295-96 (11th Cir. 2020). Then, it may

depart using either the “step-by-step procedure” or recalculation approach. United

States v. Sammour, 816 F.3d 1328, 1341-42 (11th Cir. 2016). Under the first

method, the court must look to the next criminal history category to determine

whether that category adequately reflects the defendant’s past conduct, and then it

must state on the record its findings as to why his criminal history category fits that

category and sentence the defendant within the new category’s guidelines range.

United States v. Johnson, 934 F.2d 1237, 1239 & n.7 (11th Cir. 1991). If the court

decides that the next criminal history category still does not adequately reflect the

defendant’s criminal history, the court must repeat the process with the next

category. Id. Under the recalculation approach, the court assigns criminal history

points to the defendant’s unscored convictions and then extrapolates the criminal

history category that would have applied. Sammour, 816 F.3d at 1342.

If a court departs upward from the otherwise applicable criminal history

category under § 4A1.3, it must specify in writing “the specific reasons why the

applicable criminal history category substantially under-represents the seriousness

of the defendant’s criminal history or the likelihood that the defendant will commit

other crimes.” U.S.S.G. § 4A1.3(c)(1). A district court may not “simply, and

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inexplicably,” depart from the applicable guidelines range. Williams, 989 F.2d at

1142. When the record shows that the district court failed to follow the procedure

as required under § 4A1.3 to depart upward from the guidelines range, it is a

procedural error that requires a remand for resentencing. See id.

Conversely, when a district court varies from the Guidelines range in

imposing a sentence, it must only “explain why that variance is appropriate in a

particular case,” and its “justifications must be compelling enough to support the

degree of the variance and complete enough to allow meaningful appellate

review.” United States v. Shaw, 560 F.3d 1230, 1238 (11th Cir. 2009) (quotation

marks omitted). No advanced notice is necessary. Hall, 965 F.3d at 1296.

Section § 3553(a)’s “overarching” instruction to sentencing courts is that

any sentence, whether within the Guidelines range or through a departure or

variance, must be sufficient but not greater than necessary to comply with the

purposes listed in § 3553(a)(2). Kimbrough v. United States, 552 U.S. 85, 101, 128

S. Ct. 558, 570 (2007); 18 U.S.C. § 3553; see Gall v. United States, 552 U.S. at 51,

128 S. Ct. at 597 (whether a sentence falls inside or outside the Guidelines range,

the district court must consider the § 3553(a) factors). These purposes include the

need to reflect the seriousness of the offense, promote respect for the law,

sufficiently punish the offense, deter criminal conduct, and protect the public from

the defendant’s future criminal conduct. 18 U.S.C. § 3553(a)(2). In imposing a

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particular sentence, the court must also consider the offense’s nature and

circumstances, the defendant’s history and characteristics, the types of sentences

available, the applicable guidelines range, any pertinent policy statements from the

Sentencing Commission, the need to avoid unwarranted sentencing disparities

between similarly-situated defendants, and the need to provide restitution to any of

the defendant’s victims. Id. § 3553(a)(1), (3)-(7).

There is “substantial overlap” between the provisions for increasing a

sentence via a departure or a variance. Hall, 965 F.3d at 1297. In determining

which method the district court used to sentence the defendant outside the

guidelines range, and thus which procedure it was bound to follow, we ask whether

the district court “cited a specific guidelines departure provision in setting the

defendant’s sentence, or whether its rationale was based on the § 3553(a) factors

and a determination that the guidelines range was inadequate.” Id. at 1296. The

label that the district court uses in sentencing a defendant outside of the guidelines

range is not dispositive. See United States v. Kapordelis, 569 F.3d 1291, 1316

(11th Cir. 2009) (concluding that, even though the court said that it was granting

an upward departure, it in fact imposed a variance because it did not cite a

departure provision and its reasoning was based on the § 3553(a) factors and a

finding that the Guidelines were inadequate).

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“When a sentence pronounced orally and unambiguously conflicts with the

written order of judgment, the oral pronouncement governs.” United States v.

Bonilla, 579 F.3d 1233, 1245 (11th Cir. 2009) (quoting United States v. Bates, 213

F.1336, 1340 (11th Cir. 2000)). However, “[w]hen there is an ambiguity in the

oral sentencing, as opposed to a conflict between the oral pronouncement and the

written judgment,” we examine the written judgment to determine the district

court’s intention in sentencing the defendant. United States v. Purcell, 715 F.2d

561, 563 (11th Cir. 1983).

At the sentencing hearing, when the district court asked if either party had

objections after it pronounced the sentence, Jackson raised no new objections, so

this argument is reviewed for plain error only.

Here, given the court’s presentencing notice, the parties’ extensive

arguments on the issue of a departure under § 4A1.3, the court’s focus on his

criminal history, its acknowledgments of its limits in departing under that

provision, and its conclusion that he had a high risk of recidivism, which is a

specific basis for departing under § 4A1.3, the district court departed under the

Guidelines, as opposed to varied under the § 3553(a) factors. Although the district

court referred to its decision as a “variance” very shortly after using the words

“departure or variance” and it did not explicitly say that it was imposing a

departure under § 4A1.3, its label is not determinative. Further, in its Statement of

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Reasons, the court specified that it granted a departure based in U.S.S.G. § 4A1.3,

a departure provision.

We conclude from the record that the district court departed under the

Guidelines and did not grant a variance. Although it should have acted under the

step-by-step approach required for departures based on criminal history, Jackson

has failed to demonstrate that his substantial rights were impacted by the district

court’s failure to use the proper departure procedure during the sentencing hearing.

Though Jackson argues the district court sentenced him with an offense level of 19

and criminal history category of VI, the record reflects that the district court

sentenced him under an offense level of 20 and criminal history category of V.

The criminal history category of V was the next criminal history category from the

one that he was subject to in the Presentence Investigation Report (“PSI”). As a

result, his sentence is what it would have been if the court had used the

step-by-step method and explicitly sentenced him under the next-highest category.

Accordingly, Jackson has not demonstrated that, but for the error, the outcome of

the proceeding would have been different. See Flanders, 752 F.3d at 1333.

III.

Jackson argues that his sentence is procedurally unreasonable because, in

considering his juvenile offenses, the district court violated his due process rights

when it failed to account for his age, difficult childhood, and other factors

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discussed by the Supreme Court in Miller v. Alabama, 567 U.S. 460, 132 S. Ct.

2455 (2012) (addressing factors that a district court should consider when

sentencing a juvenile defendant to life without the possibility of parole for

homicide). When the defendant objects to an issue before the district court and

raises the same issue on appeal under a different legal theory than argued below, as

Jackson does here, we review the district court’s ruling for plain error. United

States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014).

A district court may consider undisputed facts in the PSI but may not rely on

facts to which the defendant objects “with specificity and clarity, unless the

Government establishes the disputed facts by a preponderance of the evidence.”

United States v. McCloud, 818 F.3d 591, 595 (11th Cir. 2016) (quotation marks

omitted).

In Williams, we determined that a district court, in deciding whether to

impose an upward departure under § 4A1.3, may properly consider remote juvenile

sentences if the court finds that the sentences are “evidence of similar, or serious

dissimilar, criminal conduct.” 989 F.2d at 1140-41 (quoting U.S.S.G. § 4A1.2,

comment. (n.8)). We further concluded that, while the Guidelines prohibit district

courts from relying on a prior arrest record itself when departing from the

Guidelines, courts may rely on more in depth information in the PSI concerning

criminal conduct that leads to arrests, even when they do not lead to convictions,

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where the defendant does not object to the information because “[§] 4A1.3 grants

courts broad authority to consider ‘reliable information’ when contemplating a

departure.” Id. at 1441-42.

Because Jackson raises his Miller argument for the first time on appeal, we

will review it for plain error only. We conclude from the record that the district

court did not plainly err by not considering the Miller factors because Miller does

not apply to sentencing adults for crimes committed in adulthood. To the extent

that Jackson otherwise argues that the district court erred by considering his

juvenile criminal record, including arrests that did not lead to charges and

adjudications of guilt, in deciding to depart upwards under § 4A1.3, Jackson did

not raise this specific argument in the district court, so we review for plain error.

We conclude from the record that the district court did not err, plainly or

otherwise, in relying on this information because district courts have “broad

authority to consider ‘reliable information’ when contemplating a departure,”

including juvenile conduct. Williams, 989 F.2d at 1141-42. Jackson did not object

that the facts were inaccurate or that the arrests and charges never occurred, but

instead, stated only that they failed to provide a full picture of his criminal history.

For the aforementioned reasons, we affirm the district court’s imposition of

Jackson’s 75-month sentence.

AFFIRMED.