                                                                           FILED
                              NOT FOR PUBLICATION
                                                                            FEB 18 2016
                       UNITED STATES COURT OF APPEALS                   MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                              FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 14-10375

              Plaintiff - Appellee,                D.C. No. 2:13-cr-00198-JCM-
                                                   PAL-1
 v.

CHARLES ANTHONY JACKSON,                           MEMORANDUM*

              Defendant - Appellant.


                       Appeal from the United States District Court
                                for the District of Nevada
                        James C. Mahan, District Judge, Presiding

                       Argued and Submitted September 18, 2015
                               San Francisco, California

Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.

      Charles Anthony Jackson appeals his 57-month sentence, entered after he

pled guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).

See id. § 924(a)(2).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The district court plainly erred in enhancing Jackson’s offense level by

four levels pursuant to U.S. Sentencing Guidelines section 2K2.1(b)(6)(B). See

United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc). No

evidence directly indicated that Jackson was aware that the gun of which he had

constructive possession was located in the rolled-up rug in his garage. Also, his

family lived in the house, and he had implicitly asked his wife to move the gun.

The district court inferred awareness that the drugs were in the rug near the gun

from the small size of the rug. But the evidence in the record was also insufficient,

standing alone, to allow the district court to find by a preponderance of the

evidence that Jackson knew the drugs were in the rug. Jackson’s prior drug

conviction is insufficient to prove that he knew he currently had drugs in his

garage.

      In short, nothing in the record is sufficient to prove that it was Jackson,

rather than someone else in the household, who put either the gun or the drugs

where they were found. Yet the proximity of the two items was necessary to the

district court’s conclusion that Jackson possessed the gun in furtherance of a felony

involving drugs, as there was no other evidence of that essential fact.

      In nonetheless concluding that a preponderance of the evidence established

that Jackson possessed the gun in furtherance of a felony, it appears the district


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court relied on Jackson’s counsel’s statement that Jackson had admitted that he

knew the gun was in the rug, where drugs also were found. But Jackson had not

admitted that, either during the plea or sentencing hearings, in response to the

presentence report, or anywhere else in the record; he admitted only that he had

constructive possession of the gun. Jackson’s counsel’s misstatement about what

Jackson had admitted was neither evidence nor a representation by counsel as to

Jackson’s actual knowledge; it was, instead, an inaccurate report as to the earlier

proceedings. Counsel’s statement was therefore an improper basis for the district

court’s conclusion that Jackson was aware the gun was in the rug with the drugs.

      The district court’s error affected Jackson’s substantial rights. See Ameline,

409 F.3d at 1078. Without the four-level enhancement, Jackson would have been

exposed to a sentencing range of 37-to-46 months, significantly less than the 57-to-

71-month range applicable with the enhancement. See U.S.S.G. Manual ch. 5, pt.

A (2013). Further, the error seriously implicated the fairness and integrity of

Jackson’s sentencing. See Ameline, 409 F.3d at 1078, 1081.

      Accordingly, Jackson’s sentence must be reversed and the matter remanded

to the district court for resentencing.

      2. The district court did not err in increasing Jackson’s criminal history

score by two points pursuant to U.S. Sentencing Guidelines section 4A1.1(d).


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Jackson committed the felon-in-possession offense “while under a[] criminal

justice sentence” for his earlier conviction for sale of a controlled substance.

U.S.S.G. § 4A1.1(d). A prior felony conviction is not “relevant conduct” to the

instant offense within the meaning of U.S. Sentencing Guidelines section 4A1.2.

See U.S.S.G. § 4A1.2, cmt. n.1; United States v. Luna-Herrera, 149 F.3d 1054,

1056 (9th Cir. 1998).

      REVERSED in part and REMANDED for further proceedings.




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                                                                             FILED
United States v. Jackson, No. 14-10375
                                                                              FEB 18 2016
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
BEA, J., concurring in part and dissenting in part:

      I concur in Part 2 of the majority’s memorandum disposition.

      However, the majority fails to apply faithfully the standard this court

announced in United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en

banc), to determine whether the district court clearly erred in finding that Jackson

had knowledge of the pills found rolled up in a rug in his garage along with his

illegal firearm. Therefore, since I would affirm the district court, I respectfully

dissent from Part 1 of the majority’s memorandum disposition.

      “We review the district court’s findings of fact underlying its sentencing

decision for clear error.” United States v. Gardenhire, 784 F.3d 1277, 1280 (9th

Cir. 2015). Under clear error review, the district court’s factual finding is clearly

erroneous only when it is “(1) illogical, (2) implausible, or (3) without support in

inferences that may be drawn from the facts in the record.” Hinkson, 585 F.3d at

1262. “[O]nly then are we able to have a ‘definite and firm conviction’ that the

district court reached a conclusion that was a ‘mistake’ or was not among its

‘permissible’ options, and thus that it abused its discretion by making a clearly

erroneous finding of fact.” Id.
      Here, based on the evidence from the record, I do not think that the district

court’s factual finding that it was more likely than not that Jackson knew about the

Ecstasy pills rolled up in the rug along with his illegal firearm in his house was

“(1) illogical, (2) implausible, or (3) without support in inferences that may be

drawn from the facts in the record.” Id. Even though Jackson himself has not

admitted to knowing there were Ecstasy pills in the rug, there is circumstantial

evidence in the record from which the district court could at least draw a rational

inference that Jackson knew of the pills. The Ecstasy pills were found in Jackson’s

house rolled up in the same small rug that was hiding his illegal firearm, of which

Jackson admitted that he was in constructive possession. Furthermore, since the

Federal Rules of Evidence do not apply at sentencing, see Fed. R. Evid.

1101(d)(3), and “[i]n resolving any dispute concerning a factor important to the

sentencing determination, the court may consider relevant information without

regard to its admissibility under the rules of evidence applicable at trial,” U.S.S.G.

6A1.3(a), the sentencing court could also consider the fact that at the time the

Ecstasy pills were found in Jackson’s garage, Jackson was on probation for a

Nevada state felony conviction of selling a controlled substance after he was

arrested for selling 3.8 grams of MDMA, a drug similar to Ecstasy, and 4.5 grams

of marijuana to an undercover Las Vegas police officer.
      Additionally, I am not convinced that Jackson’s counsel’s statement at

sentencing that “[Jackson] admitted knowing there was a gun [in the rug],” was a

factually erroneous statement. Nowhere in the record does Jackson deny knowing

that his gun was in the rug. To me, Jackson’s counsel’s statement is akin to an

admission by an authorized agent, as Jackson was present when his lawyer made

the statement and did not object. See United States v. Hernandez-Hernandez, 431

F.3d 1212, 1219 (9th Cir. 2005) (“[W]e have repeatedly held that criminal

defendants are bound by the admissions of fact made by their counsel in their

presence and with their authority.”).

          Therefore, I would faithfully apply the Hinkson standard and affirm the

district court’s finding that Jackson knew of the Ecstasy pills in the rug.




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