               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 15a0005n.06

                                        No. 14-1400

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT                                FILED
                                                                             Jan 05, 2015
                                                                         DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                      )
                                               )
        Plaintiff-Appellee,                    )        ON APPEAL FROM THE
                                               )        UNITED STATES DISTRICT
v.                                             )        COURT FOR THE EASTERN
                                               )        DISTRICT OF MICHIGAN
JAMES B. JACKSON,                              )
                                               )
                                                                 OPINION
        Defendant-Appellant.                   )
                                               )


Before: DAUGHTREY, MOORE, and CLAY, Circuit Judges.

       KAREN NELSON MOORE, Circuit Judge.                 On May 1, 2013, police officers

responded to a call reporting gunshots fired around the Stonegate apartment complex in Flint,

Michigan. There, they found James Jackson, who had, during the course of a fight, fired

multiple rounds of ammunition into the complex. On June 5, 2013, a federal grand jury returned

a two-count indictment against Jackson, charging him with violating 18 U.S.C. § 922(g)(1)

(felon in possession of a firearm) on two different occasions, the May 1, 2013 fight and a

separate incident that occurred on October 8, 2009. Jackson pleaded guilty to both counts on

November 7, 2013. At Jackson’s sentencing hearing, the district judge determined Jackson’s

Guidelines range to be 84 to 105 months, based on a total offense level of 25 and a criminal

history category of IV. Jackson ultimately received a 94-month sentence on each count to be

served concurrently, which was below the 120-month statutory maximum.
No. 14-1400
United States v. Jackson


       Jackson contends on appeal that his sentence is procedurally and substantively

unreasonable because the district judge failed to extend the Supreme Court’s decision in United

States v. Alleyne to apply to changes in his Sentencing Guidelines range. In addition, Jackson

objects to receiving a two-level sentencing enhancement for obstruction of justice. Both claims

are without merit. Accordingly, we AFFIRM the district court’s sentence.

                                      I. BACKGROUND

       In 2002, Jackson was convicted of unlawfully driving away an automobile and fleeing

and eluding police in the third degree, both felonies under Michigan law. Presentence Report

(“PSR”) at ¶ 33.1 Seven years later, in 2009, police officers responded to a call from a security

officer at the Stonegate apartment complex. When the police arrived, the security officer

“reported that he had heard several shots fired in the apartment complex,” and had detained

Jackson, who he found had a loaded semiautomatic handgun on his person. Id. at ¶ 9; R. 33

(Plea Hr’g Tr. at 16) (Page ID #97). In the latest incident, again occurring at the Stonegate

apartment complex, a police investigation revealed that Jackson had used two handguns to fire

approximately ten rounds of ammunition into the residence. PSR at ¶ 14; R. 34 (Sentencing

Hr’g Tr. at 32) (Page ID #136). Following this incident, a federal grand jury returned a two-




       1
         Jackson has not contested the facts reported in his Presentence Report. See Appellant
Br. at 4 (“Defendant never contested at the proceedings below the fact that he had possessed the
firearms on both occasions and that he was in fact a convicted felon.”); see also United States v.
Adkins, 429 F.3d 631, 632–33 (6th Cir. 2005) (concluding that failure to object to one’s
presentencing report constitutes acceptance of the factual allegations contained within the
report).

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United States v. Jackson


count indictment charging Jackson with being a felon in possession of a firearm in 2009 and

2013, in violation of 18 U.S.C. § 922(g)(1). R. 15 (Indictment at 1-4) (Page ID #21-24).

       After his arrest, Jackson agreed to waive his Miranda rights and speak to the FBI. R. 36-

2 (Gov’t Sentencing Mem. Ex. A at 3) (Page ID #162). During his conversation with Special

Agent Thomas Sondgeroth, Jackson stated that he had given the handguns he used in the 2013

incident to Christopher Davis. R. 34 (Sentencing Hr’g Tr. at 19) (Page ID #123). Jackson,

however, had done no such thing. As he revealed later in a letter to David Coppage:

       [W]e can’t talk about the toys cause I don’t want them catch on cause they really
       want the guns cause they been used in a crime but when they asked me where
       they was I told them I sold them to some random person on the northside so just
       hold them down for me oh yeah take all the bullets out so the springs in the clips
       don’t get messed up or worn out . . . .

R. 36-4 (Gov’t Sentencing Mem. Ex. D at 1) (Page ID #165). Yet Jackson did not retract his

statement to Sondgeroth, “caus[ing] [FBI] agents then to go and investigate who Mr. Davis was,

where he lived, as well as perform a consent search of Mr. Davis’s household.”              R. 34

(Sentencing Hr’g Tr. at 19) (Page ID #123). After intercepting Jackson’s letter to Coppage, law-

enforcement officials searched and recovered the firearms in question at Coppage’s residence.

PSR at ¶ 15.

       On November 7, 2013, Jackson pleaded guilty to both counts in his indictment. R. 33

(Plea Hr’g Tr. at 16) (Page ID #97). In calculating Jackson’s Sentencing Guidelines range,

Jackson’s PSR recommended that he be given a base offense level of 20. See PSR at ¶ 22; U.S.

Sentencing Guidelines Manual (“U.S.S.G.”) § 2K2.1(a)(4)(A) (2013).              The PSR also



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United States v. Jackson


recommended that Jackson’s base offense level be increased by eight points—two points for

conduct involving four firearms, four points for possessing a firearm in connection with another

felony offense, and two points for obstruction of justice. PSR at ¶¶ 23-28. Finally, the PSR

recommended a three-level reduction for acceptance of responsibility, resulting in a total offense

level of 25. Id. at ¶ 30-32.

       After discussing and dismissing Jackson’s objections at his sentencing hearing, the

district judge adopted the PSR’s recommendations in full and sentenced Jackson to 94 months of

imprisonment. R. 34 (Sentencing Hr’g Tr. at 38) (Page ID #142).

                                       II. DISCUSSION

A. Alleyne

       We review de novo whether the district judge erred in declining to extend Alleyne to

apply to changes in the defendant’s Sentencing Guidelines range. See United States v. Bolds,

511 F.3d 568, 579 (6th Cir. 2007) (“In reviewing the district court’s calculation of the

Guidelines, we still review the district court’s factual findings for clear error and its legal

conclusions de novo.”).

       Jackson argues that the district judge erred in calculating his total offense level based on

a base level of twenty, a two-level enhancement for possessing four firearms, and a four-level

enhancement for possessing firearms in the commission of another felony.            According to

Jackson, these determinations, like the provision that increased the statutory mandatory

minimum in Alleyne, are essential facts of the crime that must be submitted to the jury.



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United States v. Jackson


       This argument, however, misreads Alleyne. In Alleyne, the Supreme Court noted that

“[i]n holding that facts that increase mandatory minimum sentences must be submitted to the

jury, we take care to note what our holding does not entail. Our ruling today does not mean that

any fact that influences judicial discretion must be found by a jury. We have long recognized

that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth

Amendment.” Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013). The Court went on to cite

with approval language from Apprendi, which noted that “nothing in this history suggests that it

is impermissible for judges to exercise discretion—taking into consideration various factors

relating both to offense and offender—in imposing a judgment within the range prescribed by

statute.” Id. (quoting Apprendi v. New Jersey, 530 U.S. 466, 481 (2000) (emphasis in original)).

       In a number of subsequent cases, we have followed the Court’s guidance in Alleyne, and

refused to extend the decision to apply to sentencing-level enhancements under the Sentencing

Guidelines. See, e.g., United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013) (“That brings

us to Johnson’s challenge to the district court’s finding with respect to drug quantities that

resulted in a Guidelines range above the minimum but below the maximum sentence. We find

no constitutional error, however, because Alleyne did not extend Apprendi to facts that do not

increase the prescribed statutory penalties.”); see also United States v. Smith, 749 F.3d 465, 487

(6th Cir. 2014) (“The Supreme Court’s decision in Alleyne v. United States extended Apprendi

by holding that ‘facts that increase mandatory minimum sentences must be submitted to the

jury.’ But both Apprendi and Alleyne took care not to disturb the district court’s discretionary



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United States v. Jackson


fact-finding in other circumstances.”) (citation omitted); United States v. James, 575 F. App’x

588, 595 (6th Cir. 2014) (citing additional cases). In this case, Jackson was sentenced to 94

months of imprisonment, a term between the mandatory minimum (0 months) and the mandatory

maximum (120 months). 18 U.S.C. § 924(a)(2); PSR at ¶ 62. The sentencing enhancements that

the district judge applied did not change these statutorily prescribed ranges, but only the

Guidelines range.

       The district judge did not, moreover, err in his application of each enhancement.

Following U.S.S.G. § 2K2.1(a)(4)(A), the district judge began his analysis by determining

Jackson’s base offense level to be 20, for Jackson had committed an offense involving

possession of a firearm subsequent to a crime of violence. Jackson does not contest his previous

conviction for third-degree fleeing and eluding. Appellant Br. at 4. And in United States v.

Martin, 378 F.3d 578 (6th Cir. 2004), we determined that third-degree fleeing and eluding

constituted a crime of violence.

       Next, the district judge applied a two-level enhancement, per U.S.S.G. § 2K2.1(b)(1)(A),

because the offense conduct involved four firearms: one firearm in the May 2009 incident and

three firearms in the May 2013 incident. At his plea hearing, Jackson admitted to carrying one

firearm in October 2009 and two firearms in May 2013. R. 33 (Plea Hr’g Tr. at 15-17) (Page ID

#96-98).   While searching David Coppage’s residence, police uncovered the two firearms

involved in the May incident, inside a gun case that also included James Jackson’s social security

card, his birth certificate, a DigiWeigh scale, and a third firearm (a loaded .44-caliber Smith &



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United States v. Jackson


Wesson revolver). PSR at ¶ 15. At most, Jackson could contest inclusion of this last firearm in

the offense conduct. Yet, any error committed by the district judge would have been harmless.

Even excluding this firearm, the offense conduct would still have involved three firearms; the

Sentencing Guidelines prescribe a two-level enhancement for all conduct involving between

three and seven firearms. U.S.S.G. § 2K2.1(b)(1)(A).

       Finally, the district judge applied a four-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B), for possessing a firearm in connection with another felony offense. As the

accompanying comments note, “‘[a]nother felony offense,’ for purposes of subsection (b)(6)(B),

means any federal, state, or local offense, other than the explosive or firearms possession or

trafficking offense, punishable by imprisonment for a term exceeding one year, regardless of

whether a criminal charge was brought, or a conviction obtained.” U.S.S.G. § 2K2.1 cmt.

n.14(C). Here, Jackson has not contested that he intentionally fired multiple rounds into a

residential apartment complex.       Under Michigan law, “an individual who intentionally

discharges a firearm at a facility that he or she knows or has reason to believe is a dwelling or a

potentially occupied structure . . . is guilty of a felony punishable by imprisonment for not more

than 10 years or a fine of not more than $10,000.00, or both.” Mich. Comp. Laws § 750.234b(1).

       In sum, the district judge did not err in declining to extend Alleyne. Nor did he err in

applying the various enhancements to Jackson’s Guidelines range. Jackson’s sentence does not

involve double counting; it is neither substantively nor procedurally unreasonable.




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United States v. Jackson


B. Obstruction of Justice

       Enhancements for obstruction of justice are subject to a two-part standard of review.

“First, the district court’s factual determination that defendant testified falsely about material

matters—and that he did so intentionally and not because of confusion, mistake, or memory

lapse—is reviewed for clear error.       Second, the determination that the specific conduct

constituted obstruction of justice is a mixed question of law and fact, which is reviewed de

novo.” United States v. Camejo, 333 F.3d 669, 675 (6th Cir. 2003) (citation omitted); United

States v. Watkins, 691 F.3d 841, 851 (6th Cir. 2012) (applying Camejo analysis post-Booker).

       Jackson’s obstruction of justice challenge fails on its face. The accompanying comments

to U.S.S.G. § 3C1.1 provide several examples of covered conduct. These include “destroying or

concealing or directing or procuring another person to destroy or conceal evidence that is

material to an official investigation or judicial proceeding (e.g., shredding a document or

destroying ledgers upon learning that an official investigation has commenced or is about to

commence)” and “providing a materially false statement to a law enforcement officer that

significantly obstructed or impeded the official investigation or prosecution of the instant

offense.” U.S.S.G. § 3C1.1 cmt. nn.4(D), 4(G). Jackson’s conduct could fall within either of

these examples. As revealed by his letter to David Coppage, Jackson intended to—and did—

deliberately mislead law-enforcement officials regarding the location of the handguns at issue.

Moreover, Jackson’s letter reveals that Jackson knew that the handguns were a material aspect to

the government’s case, and that he sought to conceal them from the government’s investigation.



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United States v. Jackson


R. 36-4 (Gov’t Sentencing Mem. Ex. D at 1) (Page ID #165) (“I don’t want them catch on cause

they really want the guns cause they been used in a crime.”).

        Jackson’s claim that “his letter from jail helped them [the police] get another gun off the

street” is baseless. Appellant Br. at 14. Law-enforcement officials recovered the firearms in

spite of—not because of—Jackson’s efforts. In addition, Jackson contends that he was awarded

a three-level reduction for acceptance of responsibility—a reduction that is inconsistent with a

two-level increase for obstruction of justice. Id. Jackson is incorrect. In other instances, we

have awarded both a reduction for acceptance of responsibility and an increase for obstruction of

justice. See, e.g., United States v. Gregory, 315 F.3d 637 (6th Cir. 2003). In those cases, we

considered the defendant’s conduct with respect to the sentencing reduction and the sentencing

enhancement separately. Id. at 639–41. The same reasoning applies here: Jackson initially

impeded the investigation by providing false information, but eventually decided to cooperate

with the government.        The district judge correctly applied a two-level enhancement for

obstruction of justice in this case.

                                       III. CONCLUSION

        For the foregoing reasons, we AFFIRM Jackson’s sentence.




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