Case: 18-15057 Date Filed: 05/01/2020 Page: 1 of 22
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-15057 Non-Argument Calendar ________________________
D.C. Docket No. 5:17-cr-00050-JDW-PRL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTONIO JUVON JACKSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Florida ________________________
(May 1, 2020)
Before MARTIN, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM: Case: 18-15057 Date Filed: 05/01/2020 Page: 2 of 22
Santonio Juvon Jackson appeals his convictions and concurrent 240-month
sentences for conspiring to distribute or possess with intent to distribute and
distributing or possessing with intent to distribute a controlled substance. Jackson
contends that the district court (1) abused its discretion in admitting “prior bad act”
evidence about his history of drug transactions with a witness and plainly erred in
not finding that the government’s questioning of the witness to elicit that testimony
constituted prosecutorial misconduct; (2) plainly erred in using the government’s
proposed verdict form, which Jackson alleges differed from the indictment in
material ways, or in the alternative, plainly erred in failing to conclude that the
indictment was duplicitous; and (3) plainly erred in sentencing him as a career
offender under § 4B1.1 of the United States Sentencing Guidelines. We affirm.
I.
A federal grand jury returned an indictment charging that on or about
October 26, 2017, Jackson distributed and possessed with intent to distribute “a
controlled substance, which violation involved 100 grams or more of a mixture and
substance containing a detectable amount of heroin, a Schedule I controlled
substance, and a detectable amount of fentanyl, a Schedule II controlled
substance,” in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 and punishable
as provided in 21 U.S.C. § 841(b)(1)(B) (Count 1), and that from on or about
October 26, 2017 through on or about October 30, 2017, Jackson conspired with
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others to distribute and possess with intent to distribute a controlled substance in
violation of 21 U.S.C. § 846, again stating that the “violation involved 100 grams
or more of a mixture and substance containing” detectable amounts of heroin and
fentanyl, punishable as provided in 21 U.S.C. § 841(b)(1)(B) (Count 2). Jackson
pleaded not guilty and proceeded to trial.
Before trial, Jackson moved in limine to exclude evidence of drug activity
between him and a prosecution witness, John Chesnet, that occurred before the
time frame of the indictment. The government responded that it intended to ask
Chesnet about his prior arrangement with Jackson regarding the price of heroin but
did not otherwise intend to present evidence of earlier drug transactions unless
Jackson opened the door to such testimony. The court granted Jackson’s motion to
the extent that it addressed prior bad acts that were beyond the scope of the
indictment, noting that the government could demonstrate the relationship between
Chesnet and Jackson “without getting into specific conduct.” The court instructed
the government to approach the court before asking about specific prior acts if the
prosecutor believed that Jackson had opened the door to such evidence.
At trial, the government called Chesnet to testify about a videotaped drug
transaction between him and Jackson, in which Jackson delivered to Chesnet
approximately six ounces (later determined to be 167 grams) of a substance
containing heroin and fentanyl. Chesnet testified that he had been arrested for
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narcotics offenses in September 2017 and had agreed to cooperate with law
enforcement in the hope of getting a lower sentence for those offenses. Chesnet
said that Jackson was his source of supply for heroin, and that he and Jackson had
a prior arrangement that Chesnet would pay $3,000 per ounce for heroin. Chesnet
testified that during the videotaped transaction, Jackson delivered a package
containing about six ounces of heroin to Chesnet and told Chesnet that he owed
$18,000 for the drugs. A few days later, Chesnet called Jackson at the direction of
law enforcement officers and arranged to make a partial payment of $5,000.
According to Chesnet, Jackson told him during that phone call that he would front
Chesnet some cocaine too.
On cross examination, Jackson’s attorney noted that part of the alleged
heroin transaction was not visible on video. Counsel implied that the heroin that
Chesnet claimed had come from Jackson really belonged to Chesnet, pointing out
that Chesnet had large quantities of heroin and cocaine in his possession when he
was arrested in September 2017. He also implied that Jackson had actually given
Chesnet money, not heroin, and that the money was a personal gift or loan to help
with Chesnet’s bail and legal fees. Counsel challenged Chesnet’s testimony that
Jackson had given him $18,000 worth of heroin on credit:
Q. So somebody is going to give you street value of 18- $30,000 worth of drugs and, as you say, front it, and then just hope that you pay them? A. That’s right. Q. Okay. And in this particular case, you hadn’t paid them any money – 4 Case: 18-15057 Date Filed: 05/01/2020 Page: 5 of 22
according to you, you said you owed him $30,000. Is that in addition to the– A. No. Q. That’s including the new stuff that you claimed you got? A. It was 10- at first. Q. What do you mean “at first”? A. Prior to the 18-. Q. Oh, so you had an outstanding debt of 10- that you were behind on? A. Yeah. Q. So now he’s going to give you 18- more, because you’re behind on 10-? A. That’s right. Q. Okay. And now this is where the $30,000 comes in? Is that what you’re telling me? A. That’s right. . . .
Q. But you just -- supposedly just got $18,000 worth of heroin? A. Yeah. Q. And you were going to get cocaine now on top of heroin? A. Uh-huh (affirmative). Q. And you still owed this man $30,000? A. Uh-huh (affirmative). Q. Does that make any sense to you? A. To me it does, yeah.
After establishing that Chesnet expected to receive between $4,000 and
$18,000 in cocaine from Jackson, counsel continued:
Q. All right. So we’re going to double down. You’re in the hole now 18- to 28,000. We’re going to throw another 18,000 on the pot. So you're going to be in the hole almost 50 grand here? A. Well, no. Usually I bring more than half of that back. Q. Well, but -- yeah. But you have no history, according to this testimony that we have here today. All you came up with was supposedly $5,000. Whose idea was it to pay $5,000? A. The officers.
On redirect, the prosecutor had the following exchange with Chesnet: 5 Case: 18-15057 Date Filed: 05/01/2020 Page: 6 of 22
Q. So, Mr. Chesnet, now that you’ve answered a number of questions from [defense counsel] about your history of drug activities from Mr. Jackson, let’s go into a little more detail about that. You mentioned on -- on or around September 27th you were arrested on a number of state warrants for trafficking in heroin? A. Yes, sir. Q. Where did you get that heroin from? A. Santonio. Q. Did you owe him money for that heroin? A. At that time I owed him 10,000. Q. All right. [Defense counsel] was asking you why on earth Mr. Jackson would front you drugs if you already owed him a great deal of money. Did you have a history of accepting drugs on consignment from Santonio Jackson? A. Yes, sir. Q. How far back did that history go?
[DEFENSE COUNSEL]: Objection, Your Honor. Outside the -- well outside the scope.
THE COURT: Overruled.
BY [THE PROSECUTOR]: Q. Go ahead. A. Since about, like, March of -- February or March of ’17. Q. So would it be correct to say that you’ve been accepting narcotics from Santonio Jackson and selling them, and then paying him back with some of the proceeds of those sales since March of 2017? A. Yes, sir. Q. Did you have a well-established history of selling drugs on consignment for Mr. Jackson from March to September? A. Yes, sir. Q. Might that have been a reason why he would be comfortable fronting you large amounts of narcotics while you still owed him money? A. Yes, sir. Q. And, in fact, wasn’t it Mr. Jackson’s practice to keep you perpetually in debt? Were you ever able to clear your debt with Mr. Jackson during the course of your drug dealings with him? A. No, sir.
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Q. What was the typical arrangement for -- like, when Mr. Jackson would show up to front you narcotics, would he ask you how much you wanted? A. No. Q. Would he ask you what kind you wanted? A. No. Q. Would he just show up with whatever he wanted to give you at that date and tell you what you owed him? A. Yes, sir.
The jury found Jackson guilty on all counts charged in the indictment. With
Jackson’s consent, 1 the court used the government’s proposed verdict form, which
included special interrogatories regarding the type and quantity of drug involved in
each count. The jury found that Jackson’s offenses involved “a mixture and
substance containing a detectable amount of heroin in the amount [of] One
hundred (100) grams or more” and “a mixture and substance containing a
detectable amount of fentanyl in the amount [of] Forty (40) grams or more.”
Based on these drug-quantity findings and Jackson’s prior felony drug
convictions, the district court determined that Jackson was subject to an enhanced
statutory sentencing range of ten years to life under 21 U.S.C. § 841(b)(1)(B). The
court also determined that Jackson qualified as a career offender under the
Sentencing Guidelines because his conviction on Count 1 was a controlled-
substance offense and he had two prior Florida felony convictions for controlled-
1 Jackson initially objected to the verdict form, but affirmatively withdrew his objection after the close of evidence at trial. 7 Case: 18-15057 Date Filed: 05/01/2020 Page: 8 of 22
substance offenses. See U.S.S.G. § 4B1.1(a). As a career offender, Jackson’s
Sentencing Guidelines range was 360 months to life in prison. Over the
government’s objection, the district court varied downward from the Guidelines
range and sentenced Jackson to 240 months’ imprisonment and eight years’
supervised release. This is Jackson’s appeal.
II.
Jackson argues that the district court erred by admitting Chesnet’s testimony
concerning prior drug transactions with Jackson outside the scope of the October
2017 conspiracy alleged in the indictment, and that the admission of that testimony
deprived him of a fair trial. For the first time on appeal, he also contends that the
government’s questioning that elicited the “prior bad act” testimony constituted
prosecutorial misconduct.
A.
We review the district court’s evidentiary rulings, including the admission of
“prior bad act” evidence under Federal Rule of Evidence 404(b), for abuse of
discretion. United States v. Gari, 572 F.3d 1352, 1361 (11th Cir. 2009). Under
Rule 404(b), evidence of a defendant’s prior bad conduct is not admissible to prove
that the defendant was of bad character and that he committed the charged crime in
conformity with that character. Fed. R. Evid. 404(b)(1). But the evidence may be
admissible for other purposes, “such as proving motive, opportunity, intent,
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preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Fed. R. Evid. 404(b)(2). “To be admissible under Rule 404(b)(2), a prior act
(1) must be relevant to an issue other than defendant’s character, (2) must be
sufficiently proven to permit a jury determination that the defendant committed the
act, (3) must have probative value that is not substantially outweighed by undue
prejudice, and (4) must otherwise satisfy Federal Rule of Evidence 403.”2
United States v. Nerey, 877 F.3d 956, 974 (11th Cir. 2017).
We have no difficulty concluding that evidence of Jackson’s prior drug
transactions with Chesnet was admissible under Rule 404(b). First, Jackson’s prior
drug activity was relevant to the issue of intent. A defendant’s not guilty plea to a
drug conspiracy charge “makes intent a material issue and opens the door to
admission of prior drug-related offenses as highly probative, and not overly
prejudicial, evidence of a defendant’s intent.” United States v. Smith, 741 F.3d
1211, 1225 (11th Cir. 2013) (quoting United States v. Calderon, 127 F.3d 1314,
1332 (11th Cir. 1997)). Second, Chesnet’s testimony that Jackson had given him
drugs on consignment before was sufficient to allow the jury to find that Jackson
committed those prior offenses. See United States v. Dickerson, 248 F.3d 1036,
2 Rule 403 provides that relevant “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” 9 Case: 18-15057 Date Filed: 05/01/2020 Page: 10 of 22
1047 (11th Cir. 2001) (“the uncorroborated word of an accomplice” is sufficient to
connect the defendant to prior uncharged crimes for purposes of 404(b) (citation
omitted)).
Third, the probative value of the evidence was not outweighed by the risk of
unfair prejudice, confusion, misleading the jury, or inefficiency. The probative
value of prior drug activity is especially high where, as here, the defendant
questions the credibility of the government’s witness on the issue of intent or
implies that he was merely present at the scene and did not participate in the
charged offense. See Calderon, 127 F.3d at 1332; United States v. Delgado, 56
F.3d 1357, 1365 (11th Cir. 1995) (affirming the introduction of prior bad acts
evidence in part because the defendant “presented a ‘mere presence’ defense,
forcing the government to prove his criminal intent so as to negate any innocent
explanation for his presence”). And contrary to Jackson’s characterization of the
evidence as severely prejudicial, we have said before that “extrinsic drug offenses
do not tend to incite a jury to an irrational decision.” Delgado, 56 F.3d at 1366.
The district court also gave a limiting instruction to the jury regarding the evidence
of prior transactions, which reduced the risk of undue prejudice. See United States
v. Wilchcombe, 838 F.3d 1179, 1193 (11th Cir. 2016).
In any event, Jackson opened the door to Chesnet’s testimony about his prior
dealings with Jackson by questioning the source of Chesnet’s debt to Jackson and
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implying that Jackson would never give him heroin without payment if Chesnet
already owed him money. Otherwise inadmissible extrinsic evidence is admissible
on redirect examination to explain or clarify testimony elicited by defense counsel
during cross examination. See United States v. West, 898 F.2d 1493, 1500 (11th
Cir. 1990); United States v. Elliott, 849 F.2d 554, 559 (11th Cir. 1988). And
evidence that is “not part of the crime charged but pertaining to the chain of events
explaining the context, motive and set-up of the crime,” is admissible without
regard to Rule 404(b) if it is “linked in time and circumstances with the charged
crime, or forms an integral and natural part of an account of the crime, or is
necessary to complete the story of the crime for the jury.” United States v. Holt,
777 F.3d 1234, 1262 (11th Cir. 2015) (quoting United States v. McLean, 138 F.3d
1398, 1403 (11th Cir. 1998)). Because defense counsel’s cross examination raised
questions about the source of Chesnet’s debt to Jackson and why Jackson would
give Chesnet $18,000 worth of drugs on credit, the government could elicit
testimony on redirect to clarify or explain those issues. The district court did not
abuse its discretion in admitting Chesnet’s testimony about his history of drug
transactions with Jackson.
B.
We generally review determinations regarding prosecutorial misconduct de
novo. United States v. Rivera, 780 F.3d 1084, 1090 (11th Cir. 2015). But when
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the defendant fails to object to the alleged misconduct contemporaneously, we
review the claim for plain error. Id. To prevail on plain-error review, the appellant
must show an error that is plain or obvious and that affected the defendant’s
substantial rights. Id. We may exercise our discretion to correct a plain error if it
“seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id.
To qualify as misconduct, a prosecutor’s questions must be (1) improper and
(2) “prejudicial to the defendant’s substantial rights.” Id. at 1096. “If the
defendant cannot show that the prosecutor’s conduct was improper, the
prosecutorial misconduct claim must fail.” United States v. Chirinos, 112 F.3d
1089, 1098 (11th Cir. 1997). Substantial rights are prejudiced when there is a
reasonable probability that, but for the misconduct, the outcome of the trial would
have been different. Rivera, 780 F.3d at 1096.
Here, the prosecutor’s questions eliciting testimony from Chesnet about his
prior arrangements with Jackson were not improper because defense counsel
opened the door to such testimony on cross examination. Chesnet’s testimony
about their history of drug transactions was admissible to explain why Jackson
would give him drugs on consignment and to clarify the source of his preexisting
debt to Jackson. And although the prosecutor should have complied with the
court’s order to request a bench conference before eliciting the testimony, his
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failure to do so did not affect Jackson’s substantial rights because the district court
heard and overruled Jackson’s objection to the evidence.
III.
Next, Jackson argues that the verdict form differed from the indictment in
significant ways, and that his convictions and sentences are therefore invalid.
Specifically, he argues that (1) the indictment charged him with drug offenses
involving 100 grams or more of a controlled substance, but the verdict form
permitted the jury to find him guilty of offenses involving an unspecified quantity
of drugs; (2) the indictment alleged that the controlled substance involved in his
offenses contained both heroin and fentanyl, but the verdict form asked the jury to
find whether his offenses involved heroin or fentanyl; and (3) the indictment
alleged that he distributed or conspired to distribute 100 grams or more of a
substance containing unspecified amounts of heroin and fentanyl, but the verdict
form asked the jury to determine the weight of heroin or fentanyl in the substance,
rather than the weight of the mixture as a whole.
Jackson argues that these differences permitted the jury to make findings
regarding drug quantities not charged in the indictment, so that the court’s use of
the verdict form constituted a constructive amendment of the indictment and his
sentence based on the jury’s drug-quantity findings was unconstitutional. “A
constructive amendment occurs ‘when the essential elements of the offense
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contained in the indictment are altered to broaden the possible bases for conviction
beyond what is contained in the indictment.’” Holt, 777 F.3d at 1261 (quoting
United States v. Narog, 372 F.3d 1243, 1247 (11th Cir. 2004)). “A constructive
amendment ‘is per se reversible error.’” Id. (quoting Narog, 372 F.3d at 1247).
In the alternative, Jackson argues that if the indictment matched the verdict
form, then the indictment was duplicitous because it charged two offenses in each
count—one involving heroin, and the other involving fentanyl. See United States
v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989) (“A duplicitous indictment
charges two or more separate and distinct crimes in a single count.”). Because
Jackson failed to make his arguments regarding the indictment and the verdict
form to the district court, our review is for plain error only. See Holt, 777 F.3d at
1261; United States v. Barrington, 648 F.3d 1178, 1190 n.6 (11th Cir. 2011);
United States v. Acevedo, 285 F.3d 1010, 1011–12 (11th Cir. 2002).
Jackson argues that the indictment charged different offenses than those
presented on the verdict form because the indictment alleged that his offenses
involved 100 grams or more of a controlled substance, triggering the penalties set
out in 21 U.S.C. § 841(b)(1)(B), whereas the verdict form permitted the jury to
find him guilty of offenses involving an unspecified drug quantity, punishable
under 21 U.S.C. § 841(b)(1)(C). These arguments are based on Jackson’s
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misreading of the indictment, the verdict form, and the federal drug trafficking
statute, 21 U.S.C. § 841.
The indictment alleged that Jackson distributed or possessed with intent to
distribute a controlled substance (Count 1) and that he conspired to distribute or
possess with intent to distribute a controlled substance (Count 2). These
allegations were sufficient to state a (single) violation of 21 U.S.C. § 841(a)(1) in
Count 1 and a (single) violation of 21 U.S.C. § 846 in Count 2, without regard to
the type or quantity of controlled substance involved. See United States v. Sanders,
668 F.3d 1298, 1309 (11th Cir. 2012) (“a person violates § 841(a) merely by
knowingly possessing with intent to distribute a controlled substance”; “the specific
amount and type of drugs are not elements of the [§ 841(a)(1)] offense” (alteration
in the original) (citation omitted)); United States v. Parrado, 911 F.2d 1567, 1570
(11th Cir. 1990) ( “To support a conspiracy conviction under 21 U.S.C. § 846, the
government must prove that there is an agreement by two or more persons to violate
the narcotics laws.”).
Under 21 U.S.C. § 841(b), however, the type and quantity of drugs involved
is a key factor in determining the statutory sentencing range for a drug trafficking
offense. For a defendant like Jackson with one or more qualifying prior drug
convictions, a violation of § 841(a) or § 846 involving an unspecified quantity of
heroin or fentanyl is punishable by up to 30 years’ imprisonment and at least 6
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years’ supervised release. 21 U.S.C. § 841(b)(1)(C). But an offense involving
either 100 grams or more of a substance containing heroin or 40 grams or more of a
substance containing fentanyl is punishable by ten years to life in prison, followed
by at least eight years’ supervised release. 21 U.S.C. § 841(b)(1)(B)(i) &
(b)(1)(B)(vi). Under Apprendi v. New Jersey, 530 U.S. 466 (2000), therefore, the
government was required to allege the relevant drug type and quantity in the
indictment and prove those facts to the jury beyond a reasonable doubt before
Jackson could be subjected to the enhanced penalties in § 841(b)(1)(B). See
Apprendi, 530 U.S. at 489; Sanders, 668 F.3d at 1309–10. Jackson’s indictment
complied with this requirement by alleging that his drug trafficking offenses
involved 100 grams or more of a substance containing heroin and fentanyl.3
In other words, the allegations in the indictment followed the structure of the
drug trafficking statute by alleging conduct that violated § 841(a)(1) or § 846 and
also alleging facts that, if proven, would trigger enhanced penalties under
§ 841(b)(1)(B). Contrary to Jackson’s assertions, the verdict form corresponded to
the indictment, in that it asked the jury to find Jackson guilty or not guilty of the
3 Specifically, the indictment charged that Jackson’s offenses “involved 100 grams or more of a mixture and substance containing a detectable amount of heroin, a Schedule I controlled substance, and a detectable amount of fentanyl, a Schedule II controlled substance, and is therefore punished under 21 U.S.C. § 841(b)(1)(B).” To the extent that Jackson argues that this language described 100 grams of a substance containing heroin and an unspecified amount of a second substance containing fentanyl (and that his sentence should have been based on the latter substance), that contention is plainly wrong and warrants no further discussion. 16 Case: 18-15057 Date Filed: 05/01/2020 Page: 17 of 22
charged offense, and if guilty, to make further findings about the type and quantity
of controlled substance involved. We have previously upheld the use of a verdict
in this format. See United States v. Clay, 355 F.3d 1281, 1285 (11th Cir. 2004).
The district court did not err, much less plainly err, by using a verdict form that
allowed the jury to make separate findings regarding drug quantity if it found that
he was guilty of the charged offense. See id.
Jackson also contends that the verdict form constructively amended the
indictment and led to the imposition of an unconstitutional sentence because the
indictment charged him with distributing or conspiring to distribute a substance
containing heroin and fentanyl, but the verdict form permitted the jury to find him
guilty if it determined that his offenses involved heroin or fentanyl. He also notes
that the indictment alleged that the substance containing fentanyl weighed more
than 100 grams, but the verdict form asked the jury whether the substance
containing fentanyl weighed 40 grams or more. In the alternative, Jackson argues
that if the indictment matched the verdict form, then the indictment was duplicitous
because it charged offenses involving two different controlled substances.
It is well settled, however, “that an indictment may charge numerous
offenses or the commission of any one offense in several ways. As long as the
crime and the elements of the offense that sustain the conviction are fully and
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clearly set out in the indictment, the right to a grand jury is not normally violated
by the fact that the indictment alleges more crimes or other means of committing
the same crime.” United States v. Miller, 471 U.S. 130, 136 (1985). This means
that “where an indictment charges in the conjunctive several means of violating a
statute, a conviction may be obtained on proof of only one of the means, and
accordingly the jury instruction may properly be framed in the disjunctive.”
United States v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000); see United States
v. Burton, 871 F.2d 1566, 1573 (11th Cir. 1989). “The conjunctive allegations do
not render the indictment duplicitous.” Burton, 871 F.2d at 1573.
Here, the verdict form did not expand the bases for conviction beyond those
that were alleged in the indictment. To the contrary, the charges in the indictment
fully encompassed the findings that the jury was asked to make. Again, the
indictment charged Jackson with a single violation of 21 U.S.C. § 841(a)(1) in
Count 1 by alleging that he distributed or possessed with intent to distribute a
controlled substance, and charged him with a single violation of 21 U.S.C. § 846 in
Count 2 by alleging that he conspired with others to distribute or possess with
intent to distribute a controlled substance. See 21 U.S.C. §§ 841(a)(1), 846. The
indictment charged that Jackson violated the relevant statutes in multiple ways, in
that his offenses involved multiple controlled substances. But because proof that
Jackson distributed and conspired to distribute any controlled substance was
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sufficient to support convictions on the counts charged, Jackson could be found
guilty as charged if his offenses involved either heroin or fentanyl, and the district
court did not plainly err in using a verdict form that instructed the jury accordingly.
Similarly, the indictment charged that Jackson’s offenses involved 100
grams of a substance containing heroin and fentanyl, although proof that the
offenses involved 100 grams of a substance containing heroin alone, or 40 grams
of a substance containing fentanyl alone, was sufficient to expose Jackson to the
enhanced penalties in 21 U.S.C. § 841(b)(1)(B). See 21 U.S.C. § 841(b)(1)(B)(i)
(providing that a violation of § 841(a) involving “100 grams or more of a mixture
or substance containing a detectable amount of heroin” is punishable under
§ 841(b)(1)(B)); 21 U.S.C. § 841(b)(1)(B)(vi) (same for an offense involving “40
grams or more of a mixture or substance containing a detectable amount of
[fentanyl]”). By alleging that Jackson possessed with intent to distribute, and
conspired to distribute, 100 grams or more of a substance containing heroin and
fentanyl, the government also necessarily alleged that he possessed with intent to
distribute and conspired to distribute 100 grams or more of a substance containing
heroin, and 40 grams or more of a substance containing fentanyl. Thus, the options
offered to the jury on the verdict form were fully contained within the indictment,
and the verdict form did not constructively amend the indictment. See Miller, 471
U.S. at 136; Simpson, 228 F.3d at 1300.
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C.
Jackson’s final argument regarding the verdict form is based on a misreading
of the special interrogatories. Jackson argues that the special interrogatories asked
the jury to find the weight of heroin or fentanyl in the mixture he possessed, rather
than the overall weight of the mixture as alleged in the indictment, and that the
district court plainly erred in relying on the jury’s responses to the special
interrogatories in determining his statutory sentencing range. We disagree.
For each count, the verdict form asked the jury to complete special
interrogatories regarding drug quantity if it found Jackson guilty of the underlying
offense. For example, the special interrogatories for Count 1 stated, “We, the Jury,
having found the defendant, SANTONIO JUVON JACKSON, guilty of the
offense charged in Count One, further find as to that Count that he distributed or
possessed with the intent to distribute a mixture and substance containing a
detectable amount of heroin in the amount shown,” and asked the jury to choose
(a) less than 100 grams, or (b) 100 grams or more. A second, similarly worded
interrogatory asked the jury to find whether Jackson’s offense involved “a mixture
and substance containing a detectable amount of fentanyl in the amount” of (a) less
than 40 grams, or (b) 40 grams or more.
Although this language is not a model of clarity, the most natural reading of
the verdict form in the context of the indictment and the evidence presented at trial
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is that the special interrogatories asked the jury to determine whether the “mixture
or substance” containing heroin weighed 100 grams or more, and whether the
“mixture or substance” containing fentanyl weighed 40 grams or more—in other
words, the special verdict form asked the jury to make the factual findings
necessary to determine Jackson’s statutory sentencing range under § 841(b)(1)(B),
as charged in the indictment. See 21 U.S.C. § 841(b)(1)(B)(i) & (b)(1)(B)(vi). The
district court did not plainly err in relying on these findings to determine that
Jackson was subject to the enhanced penalties provided by 21 U.S.C.
§ 841(b)(1)(B).
IV.
For the first time on appeal, Jackson argues that the district court erred in
calculating his Guidelines sentencing range under the career-offender guideline,
U.S.S.G. § 4B1.1.4 According to § 4B1.1, a “defendant is a career offender if
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). A “controlled
4 Because Jackson failed to challenge his sentence on this ground in the district court, our review is for plain error only. See United States v. Bonilla, 579 F.3d 1233, 1238 (11th Cir. 2009). 21 Case: 18-15057 Date Filed: 05/01/2020 Page: 22 of 22
substance offense” is defined as “an offense under federal or state law, punishable
by imprisonment for a term exceeding one year, that prohibits,” among other
things, the distribution or possession with intent to distribute a controlled
substance. Id. § 4B1.2(b).
Jackson argues that his “instant offense of conviction”—namely, the
violation of 21 U.S.C. § 841(a) charged in Count 1—does not qualify as a
controlled substance offense under § 4B1.1 because § 841(a) “contains no penalty
provision and therefore does not categorically define a federal felony offense.”
This argument borders on the frivolous. The penalty provisions for a violation of
§ 841(a) are provided by § 841(b). Under § 841(b)(1), any violation of § 841(a) is
“punishable by a term of imprisonment exceeding one year.” U.S.S.G. § 4B1.2(b);
see 21 U.S.C. § 841(b)(1)(A)–(C). Given Jackson’s record of prior felony drug
convictions, his offense, which involved 100 grams of a substance containing
heroin and fentanyl, was punishable by a minimum of ten years and a maximum of
life in prison. 21 U.S.C. § 841(b)(1)(B)(i) & (b)(1)(B)(iv) (2010). The district
court did not plainly err in sentencing Jackson as a career offender.
V.
For the reasons stated, we affirm Jackson’s convictions and 240-month
sentences.
AFFIRMED.