                                                        NOT PRECEDENTIAL


             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT

                        ________________

                     Nos. 18-2137 & 18-2138
                      ______ __________


                UNITED STATES OF AMERICA,
                                       Appellant

                                 v.

                      CAROLYN JACKSON



                UNITED STATES OF AMERICA,

                                            Appellant
                                 v.

                       JOHN E. JACKSON
                        ________________

            Appeal from the United States District Court
                     for the District of New Jersey
(D.C. Criminal Action Nos. 2-13-cr-00290-001 and 2-13-cr-00290-002)
           District Judge: Honorable Katharine S. Hayden
                          ________________

             Submitted under Third Circuit LAR 34.1(a)
                        on March 15, 2019

       Before: MCKEE, ROTH and FUENTES, Circuit Judges


                   (Opinion filed: June 26, 2020)
                                    ________________

                                        OPINION
                                    ________________


ROTH, Circuit Judge

              The government appeals the District Court’s amended judgments of

sentence against John and Carolyn Jackson. The government argues that the District

Court erred in three ways: (1) failing to apply the aggravated assault sentencing guideline

to multiple counts of conviction, (2) failing to apply several sentencing enhancements,

and (3) imposing substantively unreasonable sentences. We write only for the parties and

assume their familiarity with the history of this case, which includes a prior government

appeal and a remand for re-sentencing. For the following reasons, we will again vacate

the amended sentences imposed by the District Court and remand for re-sentencing.

                                              I1

       In our prior opinion remanding this case to the District Court, we directed the

District Court to “make the requisite findings of fact (under a preponderance of the

evidence standard) in order to calculate [a Guidelines] range (which includes deciding

whether the aggravated assault guideline applies . . .).”2



  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
1
  The District Court had subject matter jurisdiction under 18 U.S.C. § 3231, and we have
jurisdiction under 18 U.S.C. § 3742(b). We “review factual findings relevant to the
Guidelines for clear error and . . . exercise plenary review over a district court’s
interpretation of the Guidelines.” United States v. Grier, 475 F.3d 556, 570 (3d Cir.
2007).
2
  United States v. Jackson, 862 F.3d 365, 390-91 (3d Cir. 2017).
                                              2
       The Jacksons claim that the aggravated assault guideline does not apply because

the government cannot identify particular assaults (aside from Count 10) that satisfy the

requirements of the aggravated assault cross-reference. The District Court appeared to

rely on this argument when it declined to apply the aggravated assault cross-reference to

Counts 1, 3, 5, 6, 9, and 12 of the indictment. However, as described below, this

argument runs contrary to the language of the Sentencing Guidelines as well as to the

precedent of this Court.

       The assault guideline—which we held in our prior opinion applies to the Jacksons’

convictions—includes a cross reference to the aggravated assault guideline.3 Aggravated

assault is defined, in relevant part, as any “felonious assault that involved . . . serious

bodily injury.”4 “Serious bodily injury,” in turn, is defined as an “injury involving

extreme physical pain or the protracted impairment of a function of a bodily member,

organ, or mental faculty; or requiring medical intervention such as surgery,

hospitalization, or physical rehabilitation.”5

       The District Court credited the testimony of Defendants’ experts and found that

the Jacksons did not cause each of the serious injuries suffered by the Jacksons’ three

adopted children (Joshua, “J,” and “C”). This ruling turned the preponderance of the

evidence standard on its head. The children suffered at least ten unusual and serious

injuries while in the Jacksons’ custody. For example, Joshua suffered, among other


3
  See U.S.S.G. § 2A2.3(c)(1) (Assault Guideline) (“If the conduct constituted aggravated
assault, apply § 2A2.2 (Aggravated Assault).”).
4
  Id. § 2A2.2 n.1.
5
  Id. §1B1.1 n.1.
                                                 3
things: a fractured bile duct, a brain injury, a fractured skull, a fractured humerus, a

fractured spine, and a gangrenous finger. (A3601.) As another example, C suffered,

among other injuries, a fractured humerus and two bouts of acute hypernatremia.

(A3802-03.) These serious injuries—each of which involved the protracted impairment

of a bodily function or required hospitalization—should not be viewed in isolation, but

rather must be examined together with the jury findings that the Jacksons were both

guilty, beyond a reasonable doubt, of:

             • “physically assaulting Joshua . . . with various objects and with their
               hands,” (Count 3)
             • “physically assaulting [J] with various objects and with their hands,”
               (Count 6)
             • “physically assaulting [C] with various objects and with their hands,”
               (Count 12)
             • “withholding adequate water . . . and prohibiting [J] from drinking water,”
               (Count 4)
             • “withholding adequate water . . . and prohibiting [C] from drinking water,”
               (Count 8)
             • “withholding prompt and proper medical care for [C’s] dehydration and
               elevated sodium levels,” (Count 11)
             • “withholding sufficient nourishment and food from [C],” (Count 7)
             • “forcing [C] to ingest hot sauce and red pepper flakes,” (Count 9), and
             • “forcing [J] to ingest hot sauce, red pepper flakes, and raw onion” (Count
               5).6

         When applying the preponderance of the evidence standard in this context, courts

consider whether it is “more likely than not” that the conduct constituting aggravated

assault occurred.7 Thus, the District Court should have analyzed, for example, whether it

was more likely, on one hand, that the children suffered a variety of unusual physical



6
    A6054-61.
7
    United States v. Haymond, 139 S. Ct. 2369, 2374 (2019).
                                              4
injuries as a result of the Jacksons’ physical assaults; or more likely, on the other hand,

that the children suffered a variety of unusual physical injuries that were not caused by

the Jacksons (in spite of jury findings that the Jacksons repeatedly assaulted all three

children in a variety of ways). Similarly, the District Court should have considered

whether not just one, but both, of C’s bouts of hypernatremia were more likely to have

been caused by the Jacksons’ withholding of adequate water (for which they were

convicted) or more likely to have been caused by some other hypothetical, unproven

occurrence cited by the Defendants’ experts.8

       On review, we have concluded that the government adequately proved that several

of the children’s serious injuries were in fact caused by the Jacksons. Thus, we are “left

with the definite and firm conviction that a mistake [was] committed” when the District

Court failed to apply the aggravated assault guideline to counts other than Count 10.9

                                              II




8
  See Jackson, 862 F.3d at 397 (3d Cir. 2017) (“It defies common sense to believe that the
jury found that Defendants physically assaulted their adopted children, withheld
sufficient nourishment and water from them, and forced them to ingest hot sauce, red
pepper flakes, and raw onion—but that such conduct did not cause the marks and bruises,
the malnourishment, the hypernatremia, and the children’s other injuries and medical
issues.”).
9
  See United States v. Levinson, 543 F.3d 190, 199 (3d Cir. 2008) (agreeing with the
government that “the District Court rested its sentencing decision on an unsound factual
foundation,” quoting Concrete Pipe & Prod. of California, Inc. v. Constr. Laborers
Pension Tr. for S. California, 508 U.S. 602, 622 (1993)).
                                              5
       The government also argues that the District Court erred by failing to apply

sentencing enhancements to the Jacksons for: (1) abuse of a position of trust, (2) more

than minimal planning, and (3) obstruction of justice.10

       The Sentencing Guidelines provide for a two-level offense enhancement when a

defendant abuses a position of public trust.11 The government argues that the

enhancement should apply to the Jacksons because they were entrusted to foster and to

adopt the children by authorities in Oklahoma, Indiana, and New Jersey. This argument

fails. The role of a parent (adoptive or otherwise) is not one of “public trust” because it is

not “characterized by professional or managerial discretion.”12

       The Guidelines also provide for a two-level offense enhancement where an

aggravated assault involved more than minimal planning.13 “’[M]ore than minimal

planning’ means more planning than is typical for commission of the offense in a simple

form. . . . [It] also exists if significant affirmative steps were taken to conceal the offense .

. ..”14 The District Court did not clearly err by declining to apply this enhancement.


10
   The aggravated assault guideline also applies when a “felonious assault . . . involved . .
. a dangerous weapon with intent to cause bodily injury (i.e., not merely to frighten) with
that weapon.” U.S.S.G. § 2A2.2 n.1. However, we are not convinced that the District
Judge clearly erred in finding that the various objects used by the Jacksons should not be
considered “dangerous weapons” for purposes of the aggravated assault enhancement.
11
   U.S.S.G. § 3B1.3. “Whether a defendant occupied a position of public or private trust
for purposes of U.S.S.G. § 3B1.3 is a legal question over which we exercise plenary
review.” United States v. Douglas, 885 F.3d 124, 129 (3d Cir. 2018) (en banc) (citation
omitted).
12
   U.S.S.G. § 3B1.3 n.1; see Douglas, 885 F.3d at 129.
13
   U.S.S.G. § 2A2.2. Whether a defendant engaged in more than minimal planning is a
factual determination that is reviewed for clear error. United States v. Cianscewski, 894
F.2d 74, 82-83 (3d Cir. 1990).
14
   U.S.S.G. § 2A2.2 n.2.
                                               6
Although the Jacksons appear to have taken affirmative steps to conceal their offenses,

the District Court did not clearly err by finding them to be less than significant.

       Finally, the Guidelines provide for a two-level offense enhancement for

obstruction of justice.15 For the enhancement to apply, a district judge must find both

that (1) the “defendant willfully obstructed or impeded, or attempted to obstruct or

impede, the administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense of conviction,” and (2) “[t]he obstructive conduct related

to . . . the defendant’s offense of conviction and any relevant conduct.”16

       The government points to sworn testimony delivered by Carolyn Jackson in

Family Court as the basis for applying this enhancement. Specifically, Carolyn testified

in Family Court proceedings (during the criminal investigation) that she did not “know

why [C’s] sodium was so high,” that she did not “give her excess sodium,” that she did

not “deprive her of fluids,” or “salt poison her.”17 John Jackson testified similarly,

stating that he “never g[ave] [C] excess sodium,” “never withheld water from her” or

“any of my children,” “never withheld food from any of my children,” “never g[ave] hot

sauce to [C], and “always provided adequate medical care.”18 That testimony was

“irreconcilably inconsistent with the jury’s verdict” in the criminal case because the jury




15
   U.S.S.G. § 3C1.1. A district judge’s findings with respect to the obstruction of justice
enhancement are factual findings reviewed for clear error. United States v. Miller, 527
F.3d 54, 75 (3d Cir. 2008) (citing Grier, 475 F.3d at 561).
16
   U.S.S.G. § 3C1.1.
17
   A7110-11.
18
   A7255, A7286, A7311, A7329, A7344.
                                              7
found both Defendants guilty of the conduct that the Jacksons denied under oath.19 The

District Judge found that the Defendants made these statements intentionally “in an effort

to claim back their children and to deny that they had committed acts of abuse and

neglect.”20 Therefore, the Judge committed clear error by failing to impose the

obstruction of justice enhancement against the Jacksons.

                                             III

       For the foregoing reasons, we will vacate the sentences imposed by the District

Court and remand for further proceedings consistent with this opinion.21




19
   United States v. Johnson, 302 F.3d 139, 154 (3d Cir. 2002) (A “defendant ‘testifying
under oath or affirmation’ commits perjury if he ‘gives false testimony concerning a
material matter with the willful intent to provide false testimony, rather than as a result of
confusion, mistake, or fault memory.’” (quoting United States v. Dunnigan, 507 U.S. 87,
94 (1993))); see U.S.S.G. § 3C1.1 n.4 (“The following is a . . . list of examples of the
types of conduct to which this adjustment applies: . . . (B) committing, suborning, or
attempting to suborn perjury, including during the course of a civil proceeding if such
perjury pertains to conduct that forms the basis of the offense of conviction.”).
20
   A8346.
21
   Having held that there was procedural error, we will take “the preferred course” and
remand the case for re-sentencing without considering the substantive reasonableness of
the sentences imposed. United States v. Merced, 603 F.3d 203, 214 (3d Cir. 2010).
However, we decline the government’s request to reassign this matter to another judge.
See United States v. Kennedy, 682 F.3d 244, 257-60 (3d Cir. 2012).
                                              8
