United States v. Darryl Jackson

877 F.3d 231
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 5, 2017
Docket16-2415
StatusPublished
Cited by29 cases

This text of 877 F.3d 231 (United States v. Darryl Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Darryl Jackson, 877 F.3d 231 (6th Cir. 2017).

Opinions

MOORE, J., delivered the opinion of the court in which ROGERS, J., joined. GUY, J. (pp. 244-46), delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Guns have the potential to make a bad situation worse. In light of that reality, the United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”)., prescribe harsher penalties for defendants who have “used or possessed any. firearm or ammunition in connection with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). This case principally presents the question whether that sentencing enhancement applies to Defendant-Appellant Darryl Jackson, who made two pairs of separately negotiated sales—each including one sale of a small amount of drugs, one of a gun— to a government informant in close succession, but without bringing both a gun and drugs to either sale or having reason to anticipate that the first sale would beget the second. This case also presents the question whether the district court committed plain error by failing to consider sentencing-factor manipulation as a ground to reduce Jackson’s sentence. Although wé find no plain error with regard to sentencing-factor' manipulation we conclude, despite giving due deference to the district court, that Jackson did not use or possess either gun in connection with either sale of drugs within the meaning of §'2K2,l(b)(6)(B). We thus VACATE the application of the four-level enhancement under § 2K2.1(b)(6)(B) and REMAND this case for resentencing.

I. BACKGROUND

The facts in this case are not materially in dispute. On October 28, 2015, a confidential informant (“Cl”) in Grand Rapids, Michigan, told law enforcement that drugs were available for purchase from someone named. “Dlite.” R. 26 (PSR at ¶ 12) (Page ID #67). “Dlite” turned out to be Jackson, and nearly a month later, on November 23, an undercover agent drove the Cl . to a property in Grand Rapids to meet Jackson and purchase approximately a gram of heroin from him. R, 26 (PSR at ¶¶ 12-13) (Page ID #67). Jackson sold the Cl the gram of heroin for $120. R. 36 (Plea Tr. at 13) (Page ID #127). After this exchange was completed, the Cl told Jackson that the Cl was “in a little bit of a pickle” and asked Jackson if he knew where the Cl could “pick up a pistol.” R. 24 (Gov’t Obj. to PSR at 2) (Page ID #69). Jackson initially demurred, but,soon indicated that he had a gun for sale. Id. The two negotiated a price of $400, and while the Cl went to the undercover agent’s car to obtain the full amount, id., Jackson “walked down [the street] to his own residence ... to get the gun and then returned” to make the second exchange, R. 39 (Sentencing Tr. at 7) (Page ID #176); see also R. 39 (Sentencing Tr. at 9) (Page ID #178); R. 26 (PSR at ¶¶ 13-14) (Page ID #67).

A few days later, on November 27, Jackson told the Cl that he had another gun for sale. R. 26 (PSR at ¶ 18) (Page ID #67). -The undercover agent again drove the Cl to meet Jackson at the property where they had previously met, and the Cl there purchased a second gun from Jackson for $500. Id. After the two had completed the exchange and Jackson had finished explaining to the Cl how the gun worked, the Cl asked Jackson if he wanted another customer to whom he could sell drugs. R. 24 (Gov’t Obj. to PSR at 4) (Page ID #61). Jackson said that he did. Id. The Cl indicated that this potential customer— the undercover agent in the car—had money to buy the drugs, and that Jackson could “come out to the car and meet him.” R. 24 (Gov’t Obj. to PSR at 5) (Page ID #62). The Cl then left the property with the pistol and returned to the undercover agent’s car. Id. “Shortly thereafter, the defendant also exited” the property, “walked to the same vehicle, and got inside.” Id. Jackson “had a short conversation with the Cl and the undercover agent and ... sold the undercover agent one-half gram of heroin[ ], for $45.” Id,; see also R. 35 (Plea Tr. at 20) (Page ID #134); R. 39 (Sentencing Tr. at 7-8) (Page ID #176-77).

On December 17, 2015, law enforcément executed a search warrant on the two properties involved in these sales. At one, they discovered $3,050 “and a plastic spoon with heroin residue.” R. 26 (PSR at ¶ 17) (Page ID #67). At the other, they discovered a relative of Jackson’s who “admitted to flushing a small quantity of marijuana and cocaine base down the toilet when he heard officers entering the residence.” R. 26 (PSR at ¶ 18) (Page ID #68). The relative identified these quantities as “approximately.$10.00 worth of marijuana and $25.00 worth of cocaine base” and said.that they had been left on the kitchen table by Jackson. Id. No guns were recovered, and the relative stated that he had not ever seen Jacksqn with a gun. See id.

In April 2016, Jackson was indicted on two counts of being a felon in possession of a firearm and two counts of distribution of heroin. R. 12 (Indictment) (Page ID #22-25). He pleaded guilty without a plea agreement. R. 35 (Plea Tr. at 2) (Page ID #116). On October 3, 2016, he was sentenced in the district court. R. 39 (Sentencing Tr. at 1) (Page ID #170). The Presen-tence Investigation Report (“PSR”) that was prepared in advance of the hearing calculated Jackson’s total offense level to be 25 and his criminal history category to be VI, recommendations that correspond to a suggested imprisonment range of 110 to 137 months. R. 26 (PSR at 22) (Page ID #85). The PSR included in this calculation a four-level enhancement pursuant to U.S.S.G. § 2K2.1(b)(6)(B) for “us[ing] dr possessing] a firearm in connection with another felony offense,1 to wit: Distribution of Heroin.” R. 26 (PSR at ¶ 30) (Page ID #69). Jackson objected to this enhancement, arguing that “[t]he guns and the drugs were not connected in any way, except to the extent' that Mr. Jackson sold each of them, at different times, to the CI.” R. 23 (Def. Obj. to PSR at 2) (Page ID #57). At the sentencing hearing, Jackson’s counsel reemphasized this objection, arguing: “In terms of the furtherance, there’s no close proximity. There’s no drugs and guns next to each other. They’re basically separate transactions.” R. 39 (Sentencing Tr. at 14) (Page ID #183).1

The district court was not persuaded, stating that counsel was “talking about a production of a drug and a production of a gun from the same person on or about the same time,” R. 39 (Sentencing Tr. at 15) (Page ID #184), and concluding that “the basic’ framework of a felon in possession of a firearm and a distribution of heroin and the drug in connection with the' sale of hard drugs is clearly met here,” R. 39 (Sentencing Tr. at 16) (Page ID #185). Nevertheless, the district court departed downward by ten months from the lower bound of the Guidelines’ recommendation, imposing a sentence of 100 months. R. 39 (Sentencing Tr. at 25) (Page ID #194). Had the court ruled that the four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) was not applicable to Jackson, the recommended sentencing range, in- light of Jackson’s criminal history category of VI, would have been 77 to 96 months. See U.S.S.G. § 5A (sentencing table). Jackson appealed.

II. DISCUSSION

Jackson argues that the district court (1) improperly applied the four-level enhancement under § 2K2.1(b)(6)(B) to his sentence, and (2) committed plain error by not detecting—and accordingly reducing his sentence on the basis of—sentencing-factor manipulation. For the reasons that follow, we agree with Jackson’s first argument and deny his second.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Archibald v. United States
M.D. Tennessee, 2023
United States v. Everett Jackson
997 F.3d 1138 (Eleventh Circuit, 2021)
Story v. United States
E.D. Tennessee, 2020
United States v. Kane Malone
Sixth Circuit, 2020
United States v. Jeremy Cruz
976 F.3d 656 (Sixth Circuit, 2020)
United States v. Wayne Fugate
964 F.3d 580 (Sixth Circuit, 2020)
United States v. Jerry Neal
Sixth Circuit, 2020
United States v. Troy Davis
Sixth Circuit, 2020
United States v. Michael Ray Bishop
940 F.3d 1242 (Eleventh Circuit, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
877 F.3d 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-darryl-jackson-ca6-2017.