Case: 18-15253 Date Filed: 01/17/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15253 Non-Argument Calendar ________________________
D.C. Docket No. 2:18-cr-00243-LSC-JHE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE EARL JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 17, 2020)
Before JORDAN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM: Case: 18-15253 Date Filed: 01/17/2020 Page: 2 of 6
Horace Earl Jackson appeals his 120-month sentence for being a felon in
possession of a firearm. While in possession of the subject firearm, Jackson was
involved in an incident outside a nightclub, during which he brandished the firearm
and discharged several rounds at another individual’s car, striking the individual in
the arm. Jackson raises two arguments on appeal. First, he contends the district
court erred in imposing an above-guideline sentence without providing the parties
with prior notice under Rule 32(h) of the Federal Rules of Criminal Procedure.
Second, he argues that his sentence is substantively unreasonable because the
district court lacked sufficient justification to vary upward to the 120-month
statutory maximum. After review, we affirm.
I. RULE 32(h)
We review legal questions concerning the Federal Rules of Criminal
Procedure de novo. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006).
However, where a party fails to preserve its objection and therefore forfeits its
claim, we review the district court’s actions for plain error. See United States v.
Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002) (applying plain error standard when
defendant did not timely raise an objection regarding allocution under Rule
32(c)(3)(C)). As Jackson did not preserve any objection based on Rule 32(h), the
proper standard of review is plain error.
2 Case: 18-15253 Date Filed: 01/17/2020 Page: 3 of 6
Here, Jackson has not shown that the district court erred, much less plainly
so, as the court did not impose a departure that was subject to Rule 32(h)’s notice
requirement. Rule 32(h) provides, in relevant part as follows: “Before the court
may depart from the applicable sentencing range on a ground not identified for
departure either in the presentence report or in a party’s prehearing submission, the
court must give the parties reasonable notice that it is contemplating such a
departure.” Fed. R. Crim. P. 32(h).
Rule 32(h)’s notice requirement applies only to departures a district court
makes pursuant to a particular provision in the Guidelines, and the Supreme Court
has declined to extend the rule to a variance the district court imposes after
considering the factors set forth in 18 U.S.C. § 3553(a). Irizarry v. United States,
553 U.S. 708, 714, 716 (2008). To determine whether the district court employed
a variance or a departure, “we consider whether the district court cited to a specific
guideline departure provision and if the court’s rationale was based on its
determination that the Guidelines were inadequate” in light of the § 3553(a)
factors. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).
While the district court did not explicitly specify whether it was imposing a
“departure” or a “variance,” the record here indicates the district court imposed a
variance based on the § 3553(a) factors, rather than a departure under the
Guidelines. The district court did not reference any particular provision in the
3 Case: 18-15253 Date Filed: 01/17/2020 Page: 4 of 6
Guidelines governing departures. It did, however, specifically reference the
§ 3553(a) factors—particularly Jackson’s history and characteristics and the
circumstances of the offense—in announcing the above-guideline sentence.
Accordingly, we perceive no error in the district court’s imposing an above-
guideline sentence without providing the parties with notice under Rule 32(h).
II. SUBSTANTIVE REASONABLENESS
We review the substantive reasonableness of a sentence the district court
imposes for an abuse of discretion, regardless of whether the sentence is inside or
outside of the guideline range. Gall v. United States, 552 U.S. 38, 41 (2007). In
determining whether a district court abused its discretion, we consider the totality
of the circumstances and whether the sentence achieves the sentencing purposes
stated in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219 (11th
Cir. 2009).
Here, Jackson has failed to show his 120-month sentence is substantially
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010) (“The
party challenging the sentence bears the burden to show it is unreasonable in light
of the record and the § 3553(a) factors.”). Jackson argues the only justification the
district court had to impose the variance was the court’s alleged belief that
Jackson’s offense level should have been determined by U.S.S.G. § 2A2.1, rather
4 Case: 18-15253 Date Filed: 01/17/2020 Page: 5 of 6
than § 2A2.2.1 But, as discussed above, the record shows the district court
imposed the variance because of the nature and circumstances of Jackson’s offense
and his history and characteristics. The court specifically noted Jackson was “an
extremely dangerous individual that has resorted to firearms and hurting people on
a regular basis as demonstrated by [his] shooting into the vehicle in this particular
instance.” See 18 U.S.C. § 3553(a)(1).
The factual allegations contained in the PSI, to which Jackson did not object,
supported the district court’s comments. See United States v. Wade, 458 F.3d
1273, 1277 (11th Cir. 2006) (“[A] failure to object to allegations of fact in a PSI
admits those facts for sentencing purposes.”). Jackson notes these facts were
already taken into account in calculating the guideline range, but this did not
preclude the court from considering those same facts in assessing the § 3553(a)
factors. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007).
In sum, given the deference we owe to the district court’s sentencing
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Case: 18-15253 Date Filed: 01/17/2020 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15253 Non-Argument Calendar ________________________
D.C. Docket No. 2:18-cr-00243-LSC-JHE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HORACE EARL JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Northern District of Alabama ________________________
(January 17, 2020)
Before JORDAN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM: Case: 18-15253 Date Filed: 01/17/2020 Page: 2 of 6
Horace Earl Jackson appeals his 120-month sentence for being a felon in
possession of a firearm. While in possession of the subject firearm, Jackson was
involved in an incident outside a nightclub, during which he brandished the firearm
and discharged several rounds at another individual’s car, striking the individual in
the arm. Jackson raises two arguments on appeal. First, he contends the district
court erred in imposing an above-guideline sentence without providing the parties
with prior notice under Rule 32(h) of the Federal Rules of Criminal Procedure.
Second, he argues that his sentence is substantively unreasonable because the
district court lacked sufficient justification to vary upward to the 120-month
statutory maximum. After review, we affirm.
I. RULE 32(h)
We review legal questions concerning the Federal Rules of Criminal
Procedure de novo. United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006).
However, where a party fails to preserve its objection and therefore forfeits its
claim, we review the district court’s actions for plain error. See United States v.
Prouty, 303 F.3d 1249, 1251 (11th Cir. 2002) (applying plain error standard when
defendant did not timely raise an objection regarding allocution under Rule
32(c)(3)(C)). As Jackson did not preserve any objection based on Rule 32(h), the
proper standard of review is plain error.
2 Case: 18-15253 Date Filed: 01/17/2020 Page: 3 of 6
Here, Jackson has not shown that the district court erred, much less plainly
so, as the court did not impose a departure that was subject to Rule 32(h)’s notice
requirement. Rule 32(h) provides, in relevant part as follows: “Before the court
may depart from the applicable sentencing range on a ground not identified for
departure either in the presentence report or in a party’s prehearing submission, the
court must give the parties reasonable notice that it is contemplating such a
departure.” Fed. R. Crim. P. 32(h).
Rule 32(h)’s notice requirement applies only to departures a district court
makes pursuant to a particular provision in the Guidelines, and the Supreme Court
has declined to extend the rule to a variance the district court imposes after
considering the factors set forth in 18 U.S.C. § 3553(a). Irizarry v. United States,
553 U.S. 708, 714, 716 (2008). To determine whether the district court employed
a variance or a departure, “we consider whether the district court cited to a specific
guideline departure provision and if the court’s rationale was based on its
determination that the Guidelines were inadequate” in light of the § 3553(a)
factors. United States v. Kapordelis, 569 F.3d 1291, 1316 (11th Cir. 2009).
While the district court did not explicitly specify whether it was imposing a
“departure” or a “variance,” the record here indicates the district court imposed a
variance based on the § 3553(a) factors, rather than a departure under the
Guidelines. The district court did not reference any particular provision in the
3 Case: 18-15253 Date Filed: 01/17/2020 Page: 4 of 6
Guidelines governing departures. It did, however, specifically reference the
§ 3553(a) factors—particularly Jackson’s history and characteristics and the
circumstances of the offense—in announcing the above-guideline sentence.
Accordingly, we perceive no error in the district court’s imposing an above-
guideline sentence without providing the parties with notice under Rule 32(h).
II. SUBSTANTIVE REASONABLENESS
We review the substantive reasonableness of a sentence the district court
imposes for an abuse of discretion, regardless of whether the sentence is inside or
outside of the guideline range. Gall v. United States, 552 U.S. 38, 41 (2007). In
determining whether a district court abused its discretion, we consider the totality
of the circumstances and whether the sentence achieves the sentencing purposes
stated in 18 U.S.C. § 3553(a). United States v. Sarras, 575 F.3d 1191, 1219 (11th
Cir. 2009).
Here, Jackson has failed to show his 120-month sentence is substantially
unreasonable. United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010) (“The
party challenging the sentence bears the burden to show it is unreasonable in light
of the record and the § 3553(a) factors.”). Jackson argues the only justification the
district court had to impose the variance was the court’s alleged belief that
Jackson’s offense level should have been determined by U.S.S.G. § 2A2.1, rather
4 Case: 18-15253 Date Filed: 01/17/2020 Page: 5 of 6
than § 2A2.2.1 But, as discussed above, the record shows the district court
imposed the variance because of the nature and circumstances of Jackson’s offense
and his history and characteristics. The court specifically noted Jackson was “an
extremely dangerous individual that has resorted to firearms and hurting people on
a regular basis as demonstrated by [his] shooting into the vehicle in this particular
instance.” See 18 U.S.C. § 3553(a)(1).
The factual allegations contained in the PSI, to which Jackson did not object,
supported the district court’s comments. See United States v. Wade, 458 F.3d
1273, 1277 (11th Cir. 2006) (“[A] failure to object to allegations of fact in a PSI
admits those facts for sentencing purposes.”). Jackson notes these facts were
already taken into account in calculating the guideline range, but this did not
preclude the court from considering those same facts in assessing the § 3553(a)
factors. See United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007).
In sum, given the deference we owe to the district court’s sentencing
determination, we find the district court’s conclusion—that a sentence within the
1 U.S.S.G. § 2K2.1 generally provides the base offense level for possession of a firearm by a convicted felon. However, because Jackson possessed a firearm “in connection with the commission . . . of another offense,” the Guidelines provide for the application of the provision concerning attempt, solicitation, or conspiracy of the other offense. U.S.S.G. § 2K2.1(c)(1)(A). The plea agreement originally stipulated Jackson’s base offense level should be calculated using U.S.S.G. § 2A2.2, which provides the base offense level for aggravated assault. However, the Presentence Investigation Report used § 2A2.1, which concerns assault with intent to commit murder. At the plea hearing, the court agreed to apply § 2A2.2, in accordance with the parties’ agreement. 5 Case: 18-15253 Date Filed: 01/17/2020 Page: 6 of 6
guideline range was inappropriate given the violent nature of Jackson’s felon-in-
possession offense and Jackson’s propensity to engage in criminal acts that involve
the use of violence, firearms, or both—was a sufficiently compelling justification
for the upward variance. See Gall, 552 U.S. at 41; United States v. Flores, 572
F.3d 1254, 1270–71 (11th Cir. 2009). The district court’s 120-month sentence thus
was substantively reasonable, and we affirm. Sarras, 575 F.3d at 1219.
AFFIRMED.