United States v. Michael Jackson

527 F. App'x 575
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 22, 2013
Docket11-1321
StatusUnpublished

This text of 527 F. App'x 575 (United States v. Michael Jackson) 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
United States v. Michael Jackson, 527 F. App'x 575 (7th Cir. 2013).

Opinions

ORDER

Michael Jackson was sentenced to 30 years in prison after a jury found him guilty of conspiracy to possess and distribute powder and crack cocaine. See 21 U.S.C. §§ 846, 841(a)(1). In this direct appeal, he argues that the district court committed plain error by counting as relevant conduct drug amounts that Jackson says were not part of his jointly undertaken criminal activity. We affirm the judgment.

In 2004 police and FBI agents in Indianapolis, Indiana, began investigating a local drug-trafficking operation. During the summer of that year and into early 2005, an undercover police officer bought approximately 510 grams of crack from Demetreous Brown in 11 separate transactions. Surveillance officers observed associates of Brown during these transactions, but no government witness was able to say that Jackson was among them. Jackson’s involvement in the conspiracy was first confirmed in February 2005 (after the 11 undercover drug purchases had been completed) when a telephone call he made to Brown was intercepted on a wiretap of Brown’s phone. Jackson was recorded asking Brown for an eighth of an ounce of cocaine to serve a customer.

After that first call to Brown, Jackson was intercepted numerous times in the next few months while calling Brown or Anthony Howard, another coconspirator whose phone also was tapped. His conversations with Brown and Howard demonstrate that Jackson performed a variety of supporting roles in the conspiracy. He personally facilitated drug deals (generally on behalf of Brown or Howard) aggregating more than 42 grams of crack, plus additional amounts of marijuana and powder cocaine. He frequently carried a gun, from a Glock handgun to a shotgun or “AK-47” assault rifle, and expressed a willingness to use these weapons if necessary to protect the coconspirators or retaliate against others. He also offered to locate a new cocaine supplier when the group was running low.

Police arrested Jackson in May 2005 on a traffic stop; they found a gun in his [576]*576vehicle but no drugs. Jackson was on parole at the time. After his arrest the investigators intercepted phone calls between Howard and his brother (who lived in Gary, Indiana) discussing a proposed delivery from Gary of 2 or 3 kilograms of powder cocaine planned for early June. On June 1 the brothers settled on 3' kilograms. The next day two men in separate cars arrived at Howard’s home in Indianapolis and delivered 3 kilograms of powder cocaine. After they had departed the residence, investigators stopped both men and found another 42 kilograms of powder cocaine in one of the cars. A search of Howard’s house uncovered 123 grams of crack in addition to the 3 kilograms of cocaine.

The government charged Jackson and nine others — including Brown, Howard, Howard’s brother, and the men they caught transporting the cocaine from Gary to Indianapolis — with conspiracy. The indictment alleges that the conspiracy involved at least 50 grams of crack “and/or” 5 kilograms of powder, enough to trigger a minimum prison term of ten years. See 21 U.S.C. § 841 (b)(1)(A)(ii). Jackson was tried alone and found guilty. The probation officer recommended a base offense level of 36, based on 685.65 grams of crack and 46.539 kilograms of powder cocaine— all of the drugs attributable to the conspiracy from the inception of the undercover investigation in 2004 to the final bust in June 2005. With a two-level increase for possession of a firearm and a criminal history category of VI, Jackson’s imprisonment range was 360 months to life. Despite multiple opportunities before and during the sentencing hearing, neither Jackson nor his counsel objected to the drug-quantity calculation in the presen-tence report. The court adopted the calculations in the presentence report and imposed a sentence of 360 months.

On appeal Jackson contends that the district court committed plain error by counting in his drug quantity the crack from the 11 undercover buys as well as the 42 kilograms of cocaine seized from the delivery vehicle after it had departed Howard’s residence on June 2, 2005. Jackson maintains that he cannot be held accountable for the undercover buys because there is no evidence that he had joined the conspiracy before the last of those 11 transactions, and he also contends that the 42 kilograms discovered in his coconspirator’s car cannot be attributed to him. Jackson insists — without challenge from the government — that he would have faced a guidelines imprisonment range of 262 to 327 months, not 360 months to life, if not for the purported mistake in calculating the drug quantity. The government both defends the quantity calculation and also argues that Jackson waived this challenge by endorsing the presentence report.

Jackson concedes that he forfeited, but disputes that he waived, his objection to the quantity finding. A waived objection is unreviewable on appeal, but a forfeited contention is reviewed for plain error. United States v. Adigun, 703 F.3d 1014, 1021 (7th Cir.2012). The government notes that Jackson said “no” when the district judge addressed him personally and asked if he “had any reason to dispute” the probation officer’s calculation of the offense level, that his lawyer acknowledged while advocating a much lower sentence that “a black and white analysis” did yield a range of 360 months to life, and that Jackson “did not dispute” the quantity finding during allocution. But waiver must be knowing and intentional, not accidental or negligent, see id.; United States v. Jaimes-Jaimes, 406 F.3d 845, 848 (7th Cir.2005), and the government has not articulated a strategic reason why Jackson would forgo an objection that, if correct, would have reduced the low end of his [577]*577imprisonment range by eight years. We construe the circumstances here as a forfeiture, not a waiver, and we have discretion to vacate Jackson’s sentence if we find an obvious error that affects his substantial rights and also seriously impugns the fairness, integrity, or public reputation of judicial proceedings. See United, States v. Marcus, 560 U.S. 258,130 S.Ct. 2159, 2164, 176 L.Ed.2d 1012 (2010).

At issue here are two defining principles of “relevant conduct,” both recognizing that criminal responsibility for purposes of the sentencing guidelines often is narrower than liability under Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946). The first principle is that a defendant is not responsible for the criminal activity that others committed before he joined their endeavor, even if he knows about that activity. U.S.S.G. § 1B1.3 cmt. n. 2; United States v. Spano, 476 F.3d 476, 480 (7th Cir.2007); United States v. Diamond, 378 F.3d 720, 726-27 (7th Cir.2004). The second principle is that the scope of the defendant’s jointly undertaken activity matters to the guidelines even if it does not under Pinkerton. Conspiracy liability as defined in Pinkerton

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527 F. App'x 575, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-jackson-ca7-2013.