United States v. Don Jackson

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2019
• Docket: 19-50085
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 17 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50085

Plaintiff-Appellee, D.C. No. 2:13-cr-00531-R-1

v. MEMORANDUM* DON WILLIAM JACKSON,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted November 5, 2019 Pasadena, California

Before: FARRIS, McKEOWN, and PARKER,** Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. Defendant Jackson admitted to six Class C supervised release violations and

was sentenced to 14 months of incarceration—the maximum term suggested by the

Sentencing Guidelines. Jackson now asserts that the District Court committed

procedural error by (1) not crediting Jackson for time served on house arrest; (2)

not granting Jackson a downward sentencing variance because of time served on

house arrest; (3) rejecting his request for a specific departure from the Guidelines

range based on his physical and psychiatric medical conditions, (4) failing to

sufficiently address the § 3553(a) factors, and (5) rejecting a departure from his

sentence based on potential threats to his life in prison. Jackson does not challenge

the substantive unreasonableness of his within-Guidelines sentence. We reject

each of Jackson’s contentions and affirm the sentence.

Jackson was convicted of conspiracy to distribute narcotics in 2005 and

initially sentenced to a term of 132 months, to be followed by ten years of

supervised release. Following his release from incarceration, Jackson has engaged

in a consistent pattern of violations. His supervised release conditions have been

modified for unauthorized travel outside of the district, failure to complete

residential training programs, failure to notify probation officers of police contact,

association with convicted felons, possession of a counterfeit driver’s license, and

convictions for negligent operation of a watercraft and DUI. On January 11, 2018,

2 Jackson again admitted to violating the terms of his supervised release. His term

of supervised release was revoked and reimposed, and the Court also ordered him

to serve four months on house arrest.

On January 18, 2018, Jackson was shot and nearly killed in an apparent act

of retribution for past assistance that he provided to law enforcement. The District

Court suspended his term of house arrest on January 25 because of the shooting, at

which time he had only served two weeks of his four-month term of house arrest.

Jackson again violated the terms of his supervised release soon after, and

this new set of violations forms the basis of the present appeal. On June 19, 2018,

Jackson appeared before the Court for revocation proceedings pursuant to four

charged violations. Jackson admitted to two of the four violations, agreed to serve

109 days of house arrest, and the proceedings were stayed pending the resolution

of a criminal case in California state court. Before these proceedings were ever

finalized, the Government charged Jackson with an additional eight violations of

supervised release. On February 11, 2019, Jackson eventually admitted to six of

the twelve total violations, including the two offenses previously admitted in June.

The parties agree that the District Court correctly calculated a Guidelines range of

3 eight to fourteen months, given that all violations constituted Class C offenses and

that Jackson fell within criminal history category VI. See U.S. Sentencing

Guidelines § 7B1.4(a). The Government recommended a sentence of fourteen

months incarceration based primarily on Jackson’s history of violations and his

“repeated breaches of the Court’s trust.” The District Court adopted the

Government’s recommendation and sentenced Jackson to fourteen months

incarceration to be followed by three years of supervised release.

Sentencing decisions are generally reviewed for abuse of discretion. United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Under this standard,

we will set aside a district court sentence only for procedural error or substantive

unreasonableness. Id.; see also Gall v. United States, 552 U.S. 38, 51–52 (2007).

Where a defendant fails to raise a claim of procedural error in sentencing before

the district court, however, we review only for plain error. See United States v.

Rangel, 697 F.3d 795, 800 (9th Cir. 2012). On plain error review, the defendant

must show (1) an error that (2) is “clear or obvious,” (3) which “affected the

outcome” of the proceedings, and (4) “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258,

262 (2010) (quotations omitted).

4 We will find procedural error where the district court failed to calculate the

Guidelines range, or calculated it incorrectly; treated the Guidelines as mandatory;

failed to consider the factors addressed in 18 U.S.C. § 3553(a); chose a sentence

based on clearly erroneous facts, or failed to adequately explain the sentence

selected. Carty, 520 F.3d at 993. A district court’s explanation of its chosen

sentence must be adequate to “permit meaningful appellate review,” but an

adequate explanation may be inferred from the record as a whole. Id. Further, “[a]

within-Guidelines sentence ordinarily needs little explanation unless a party has

requested a specific departure, argued that a different sentence is otherwise

warranted, or challenged the Guidelines calculation itself as contrary to § 3553(a).”

Id.

We reject Jackson’s first claim of procedural error—that Jackson should

have been given credit for time served on house arrest. The District Court lacked

statutory authority to give such credit. United States v. Wilson, 503 U.S. 329, 333

(1992); United States v. Peters, 470 F.3d 907, 909 (9th Cir. 2006). Only the

Bureau of Prisons has discretion to grant defendants credit for time served prior to

the start of their federal sentences, and a criminal defendant may only challenge the

5 Bureau’s calculation of credits in a habeas corpus action based on 28 U.S.C. §

2241 after the exhaustion of administrative remedies. Zavala v. Ives, 785 F.3d 367,

370 n.3 (9th Cir. 2015).

Jackson’s second claim of procedural error also fails. We review Jackson’s

claim that the District Court should have given him a downward sentencing

variance because of time served on house arrest for plain error, because Jackson

failed to raise the claim below “with sufficient distinctness to alert the court to the

nature of the claimed defect.” United States v. Dorvee, 616 F.3d 174, 179 (2d Cir.

2010) (quotations and citations omitted). Jackson’s request for credit for time

served came after the sentence had already been issued, and would not have alerted

the Court that Jackson was actually requesting a downward sentencing variance.

The District Court did not plainly err by issuing a sentence at the top of the

Guidelines range despite the fact that Jackson had served time on house arrest

between his prior revocation hearing and the revocation hearing at issue here.

Jackson claims that the Court punished him twice for the same offense by

sentencing him to 109 days of house arrest in June of 2018 and then issuing a 14-

month sentence in February of 2019. But the term of house arrest that Jackson

agreed to serve in June was associated with a previous revocation of the terms of

his supervised release. He was not being punished for a new offense; he was

6 serving time he already owed. Therefore, the District Court did not plainly err in

failing to consider a downward departure that Jackson never actually requested,

because the sentence issued remained within the Guidelines range and any such

departure would have been wholly discretionary.

It is true that the District Court purported to grant “credit for time served,”

but the District Court lacked jurisdiction to issue that remedy. In Peters, this Court

affirmed a sentence despite the District Court’s erroneous attempt to credit the

defendant for time served in much the same fashion. 470 F.3d at 909. Jackson

argues that we must remand for re-sentencing because the District Court failed to

consider what it would have done had it known that it lacked jurisdiction to issue

credit for time served. Peters forecloses that argument. In Peters, we remedied the

error by simply striking the phrase “credit for time served” from the judgment and

imposing the full sentence. Id. Following Peters’ guidance, we hold that the

District Court did not plainly err.

We also reject Jackson’s claim that the District Court abused its discretion in

denying Jackson’s request for a sentencing departure based on his various medical

problems. The District Court did allow Jackson extra time prior to his surrender

7 date due to a scheduled surgery, but left the fourteen-month sentence in place. The

Court explicitly considered granting a downward variance on the record after

Jackson’s counsel requested that the Court consider Jackson’s medical difficulties

in issuing a sentence. The District Court asked counsel for the Government to

respond to Jackson’s arguments, and counsel responded that “the Government has

considered the defendant’s medical issues and it still maintains its recommendation

in this case.” The Court was permitted to rely on that recommendation and did not

abuse its discretion in adopting it.

Finally, we hold that the District Court did not plainly err by purportedly

failing to sufficiently address the § 3553(a) factors or declining to modify

Jackson’s sentence based on potential threats he might face in prison as a past

informant. The plain error standard applies to both of these claims. Although

Jackson presented some mitigating evidence going to these two issues, he did not

style the presentation of this evidence as a procedural objection. See United States

v. Valencia-Barragan, 608 F.3d 1103, 1108 n.3 (9th Cir. 2010) (explaining that

plain error review applies to a claim of procedural error on appellate review where

the arguments presented to the District Court were primarily focused on mitigation,

and thus substantive in nature).

8 The Government’s sentencing memorandum sufficiently tracks the §

3553(a) factors by citing some of the factors and explaining its decision to

recommend a fourteen-month sentence. The Court was permitted to adopt that

recommendation.

The record does not directly address Jackson’s final contention—that his

sentence should have been altered to protect him from the threat of prison

violence—but the Court’s lack of exposition was reasonable given the fact that

Jackson never drew any connection between his sentence and the potential dangers

he might face in prison. Jackson’s sentencing memorandum discussed the violence

he had suffered and explained why he was a potential target in the context of his

medical needs, but did not request that the District Court take any particular action

based on that fact. He made this particular argument for the first time before this

Court. It would be asking too much of the District Court to conclude—of its own

volition—that Jackson would face unreasonable dangers in prison based on his past

cooperation with law enforcement. It cannot constitute plain error.

AFFIRMED.