United States v. Sean D. Jackson

462 F.3d 899, 2006 U.S. App. LEXIS 23088, 2006 WL 2588247
CourtCourt of Appeals for the Eighth Circuit
DecidedSeptember 11, 2006
Docket05-4304
StatusPublished
Cited by7 cases

This text of 462 F.3d 899 (United States v. Sean D. Jackson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth 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. Sean D. Jackson, 462 F.3d 899, 2006 U.S. App. LEXIS 23088, 2006 WL 2588247 (8th Cir. 2006).

Opinion

COLLOTON, Circuit Judge.

Sean D. Jackson pled guilty to possession with intent to distribute heroin and cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He appeals his sentence and raises a claim of ineffective assistance of trial counsel. We affirm.

In a plea agreement, the parties made non-binding recommendations to the court concerning the application of the advisory sentencing guidelines. Based on Jackson’s acknowledgment of responsibility for 161 grams of cocaine and 13 grams of heroin, the parties recommended a base offense level of 20. The parties also recommended a three-level downward adjustment for acceptance of responsibility. See id. § 3E1.1. The plea agreement further provided that the parties “may not have addressed or foreseen all the Guidelines provisions applicable in this case,” and that guideline applications “not expressly addressed by the parties’ recommendations, but which are addressed by the Presen-tence Report or the Court, may be presented to the Court for consideration.”

In a presentence report, the United States Probation Office recommended that Jackson be sentenced as a career offender, *901 pursuant to USSG § 4Bl.l(b)(C). The district court 1 adopted this recommendation and calculated Jackson’s offense level to be 29, after a three-level adjustment for acceptance of responsibility. As a career offender, Jackson’s criminal history category was VI, making his guideline range 151-188 months, but the district court found that category VI overstated Jackson’s criminal history, and departed downward to category V. The resulting guideline range was 140-175 months, and the court sentenced Jackson to 140 months’ imprisonment.

Jackson first contends that the district court erred by considering him a career offender, because his criminal history did not include two qualifying prior convictions as required by USSG § 4Bl.l(a)(3). According to Jackson, the government did not establish that his Missouri conviction in 1995 for unlawful use of a weapon was a “crime of violence” pursuant to USSG § 4B1.2(a), because the recital in the presentenee report adopted by the district court impermissibly relied on facts derived from a police report. See Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); United States v. McCall, 439 F.3d 967, 973-74 (8th Cir.2006) (en banc).

We conclude that Jackson’s 1995 conviction in Missouri was properly counted as a crime of violence. The statute under which Jackson was convicted states that “[a] person commits the crime of unlawful use of weapons if he knowingly ... [exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner.” Mo.Rev.Stat. § 571.030.1(4) (Supp. 1995). The Missouri Supreme Court has explained that implicit in this statute “is a legislative determination that such conduct creates a substantial risk of death or physical injury to those in whose presence such conduct occurs.” State v. Parkhurst, 845 S.W.2d 31, 36 (Mo.1993) (en banc). Consistent with that understanding, we have held that a violation of § 571.030.1(4), charged as an exhibition in an “angry or threatening” manner, presents a “serious potential risk of physical injury to another,” USSG § 4B1.2(a)(2), and is therefore a “crime of violence” under § 4B 1.2(a). United States v. Fields, 167 F.3d 1189, 1191 (8th Cir.1999).

Although Jackson objected to the recitation of facts derived from police reports in paragraph 44 of the presentence report, (S. Tr. at 3), he did not object to the fact that he was convicted of unlawful use of a firearm, as reported in paragraph 42. Because a violation of § 571.030.1(4) constitutes a crime of violence as a categorical matter, regardless of the specific facts underlying the conviction, see Fields, 167 F.3d at 1191, the fact of conviction and the statutory definition of the prior offense are sufficient to establish that Jackson’s 1995 conviction is a crime of violence under the career offender guideline. See Shepard, 544 U.S. at 17, 125 S.Ct. 1254; Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The information derived from police reports concerning the conviction was unnecessary to a determination of the career offender issue, so the district court’s adoption of that portion of the presentence report was not material to its conclusion that Jackson was a career offender.

Jackson also argues that the district court violated his rights under the Sixth Amendment by finding that his two *902 prior felonies qualified him as a career offender. Our court has consistently held, however, that “[o]nce the sentencing court determines that a prior conviction exists, it is a legal question for the court whether the crime meets the ‘crime of violence’ definition of § 4B1.2.” E.g., United States v. Camp, 410 F.3d 1042, 1047 (8th Cir.2005) (internal quotation omitted); United States v. Marcussen, 403 F.3d 982, 984 (8th Cir.), cert. denied, — U.S. -, 126 S.Ct. 457, 163 L.Ed.2d 347 (2005). The district court did not err by making the determination that Jackson had a prior conviction for a crime of violence.

Jackson also contends that the court committed plain error by not informing him at his plea hearing that the court would not follow the offense level recommendations in the plea agreement if Jackson qualified as a career offender. We held in United States v. Thomas, 894 F.2d 996 (8th Cir.1990), that a district court complied with Federal Rule of Criminal Procedure 11(c)(1), which then required that a defendant be advised of the “maximum possible penalty provided by law,” by advising the defendant of the maximum statutory penalty for his offenses. Id. at 997. We said that the district court “is not required to inform the defendant of the applicable guideline range or the actual sentence he will receive.” Id.

Rule 11 still provides that the court must inform the defendant of “any maximum possible penalty,” Fed.R.Crim.P. 11(b)(1)(H), but the rule also now requires that the court inform the defendant of “the court’s obligation to apply the Sentencing Guidelines, and the court’s discretion to depart from those guidelines under some circumstances.” Fed.R.Crim.P. ll(b)(l)(M).

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Bluebook (online)
462 F.3d 899, 2006 U.S. App. LEXIS 23088, 2006 WL 2588247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-sean-d-jackson-ca8-2006.