       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0172P (6th Cir.)
                File Name: 00a0172p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                                   ;
                                    
 UNITED STATES OF AMERICA,
                                    
           Plaintiff-Appellee,
                                    
                                    
                                       No. 98-4205
            v.
                                    
                                     >
 JEFFREY LEE JACKSON,               
          Defendant-Appellant. 
                                   1
       Appeal from the United States District Court
      for the Southern District of Ohio at Columbus.
     No. 98-00090—James L. Graham, District Judge.
                 Argued: May 2, 2000
            Decided and Filed: May 23, 2000
 Before: MERRITT, JONES, and CLAY, Circuit Judges.
                  _________________
                       COUNSEL
ARGUED:         Gordon Hobson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
David J. Bosley, ASSISTANT UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF:
Gordon Hobson, FEDERAL PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. David J. Bosley,
ASSISTANT UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee.

                            1
2      United States v. Jackson                     No. 98-4205

                      _________________
                          OPINION
                      _________________
  MERRITT, Circuit Judge. Eighteen U.S.C. § 2119, the
federal carjacking statute, states, as amended and in relevant
part:
    Whoever, with the intent to cause death or serious bodily
    harm takes a motor vehicle that has been transported,
    shipped, or received in interstate or foreign commerce
    from the person or presence of another by force and
    violence or by intimidation, or attempts to do so, shall -
      (1) be fined under this title or imprisoned not more
      than 15 years, or both,
      (2) if serious bodily injury . . . results, be fined under
      this title or imprisoned not more than 25 years, or both,
      and
      (3) if death results, be fined under this title or
      imprisoned for any number of years up to life, or both,
      or sentenced to death.
(Emphasis added.)
  A federal grand jury returned a one count indictment
against defendant Jeffrey Lee Jackson that charged intent to
injure without charging bodily injury under § 2119(2):
    On or about the 25th day of February 1998, in the
    Southern District of Ohio, Jeffrey Lee Jackson, by force,
    violence or intimidation, with the intent to cause death or
    serious bodily injury, did take from Charles Chope, a
    1988 Chevrolet Corvette, which had been transported,
    shipped or received in interstate commerce. In violation
    of 18 U.S.C. § 2119.
(Emphasis added.)
6    United States v. Jackson                    No. 98-4205      No. 98-4205                    United States v. Jackson       3

jury that asked whether serious bodily injury resulted from the      Defendant was convicted by a jury of violating the federal
carjacking, Jackson’s counsel timely objected to the district     carjacking statute, 18 U.S.C. § 2119; and he now argues that,
court’s actions, arguing that the indictment made no reference    in light of the recent Supreme Court decision handed down in
to § 2119(2) and directed the court to the then pending Jones     Jones v. United States, 526 U.S. 227, --, 119 S. Ct. 1215
case. Finally, as in the instant case, the Jones district court   (1999) (holding that the three subsections of § 2119 are
adopted the presentence report’s 25-year sentence                 elements of the crime to be charged and proved, not merely
recommendation because one of the victims had in fact             sentence enhancements as courts of appeals had previously
suffered serious bodily injury. The Jones defendant objected      held), the district court erred in sentencing him to 25 years
to his sentence and, on appeal, the Supreme Court held that       imprisonment because his indictment merely alleged that
the three paragraphs of § 2119 are to be construed as             Jackson had the intent to cause “serious bodily injury,” but
“establishing three separate offenses by the specification of     failed to allege that he had in fact caused such an injury under
distinct elements, each of which must be charged by               § 2119(2). In the absence of any constitutional harmless error
indictment, proven beyond a reasonable doubt, and submitted       analysis offered by the government, we must reverse and
to a jury for its verdict.” Jones, 119 S.Ct. at 1228.             remand because of the intervening Jones case.
  In this case, as in Jones, the indictment charging Jackson                                     I.
did not make direct reference to § 2119(2), and the district
court incorrectly construed the statute’s paragraphs as             The facts of this case are undisputed. On February 25,
sentencing enhancements. The wording of Jackson’s                 1998, Charles Chope, the victim, drove his 1988 Corvette a
indictment, alleging a carjacking with intent to cause serious    block and a half from his home in Upper Arlington, Ohio, to
bodily injury, varies from the conviction Jackson received,       a nearby supermarket to buy a few items. Upon leaving the
which was of committing a carjacking which resulted in            market, Chope discovered his battery had died. While he was
serious bodily injury. The variation between the conviction       waiting for AAA to arrive and help him start his car, Chope
and sentence and the indictment is essentially the same as in     was approached by Defendant who stated that he, too, was
Jones. Although Jackson’s conduct was outrageous and              having car trouble. After speaking only very briefly with
deserving of the 25-year sentence, we are constrained by the      Jackson, Chope got into his car, which had been jump-started
Supreme Court’s opinion in Jones to instruct the district court   by the AAA serviceman, and returned home. Chope parked
to reduce the sentence to 15 years. Despite evidence in the       his car in a detached garage and began walking toward his
record that may indicate that Jackson was sufficiently on         apartment when he noticed Jackson run around the corner
notice that he potentially faced a 25-year sentence under         with what appeared to be a semiautomatic handgun. Jackson
§ 2119(2), the government has not raised any question of          pointed his weapon at Chope and told them that he wanted
harmless error. Government counsel did not seek to advance        some money. Jackson then struck Chope in the face with the
a constitutional harmless error analysis, even after we asked     weapon and ordered him to get into the passenger seat of the
about it at oral argument, and we therefore do not address, but   Corvette.
rather pretermit, any harmless error analysis that could be
advanced.                                                           Jackson drove into the drive-through teller at Chope’s bank.
                                                                  Under threat of death, Chope withdrew $150.00 from his
  Accordingly, we vacate the sentence issued by the district      account and gave the money to Jackson. Jackson then drove
court and remand for resentencing in accordance with this         the car to a local recreation area, Hayden Run Falls, and, after
opinion.                                                          parking, ordered Chope to get out and walk along a trail that
4    United States v. Jackson                    No. 98-4205      No. 98-4205                     United States v. Jackson       5

winds down to the bottom of the falls. Jackson closely            because it would be obvious to the jury that Chope had been
followed Chope and, soon after they had begun walking along       seriously injured once he entered the courtroom.
the trail, Jackson suddenly pushed Chope off of a nearby cliff.
Chope fell approximately 50 feet into a rocky ravine and            Jackson again raised the same issue at the close of trial
landed on his back in a few inches of water. Fortunately, it      when he objected to a portion of the special verdict form that
was an unseasonably warm February day and two hikers              asked if serious bodily injury did or did not result from the
discovered the seriously injured Chope, who was conscious,        commission of the offense. The district court again overruled
but in a lot of pain and unable to move. Chope explained to       the objection. After deliberation, the jury returned with a
the hikers what had happened and one tended to him while the      verdict, finding Jackson guilty of the charge in the indictment
other called 911. Chope was rescued by emergency service          and that serious bodily injury did result.
personnel and taken to the hospital.
                                                                     At the sentencing hearing, Jackson objected to the
  Chope had sustained life-threatening injuries, with the most    presentence investigation report’s determination that the
serious injury being two broken vertebrae in his back.            statutory penalty was 25 years instead of 15 years, again
Although it was unclear at first if Chope would live, he was      raising the argument that serious bodily injury was not alleged
ultimately stabilized. Despite undergoing several surgeries,      in the indictment. The court overruled the objection,
today Chope remains permanently paralyzed from the waist          concluding that it was not necessary for the language at issue
down with what doctors deem a zero chance of ever again           to be included in the indictment because it went only to
walking unassisted.                                               sentencing. The court also noted that through a special
                                                                  interrogatory the jury had found beyond a reasonable doubt
   At trial, Jackson objected when the prosecution sought to      that serious bodily injury was sustained as a result of this
introduce medical testimony establishing the extent of the        offense. The court then sentenced Jackson to 25 years in
injuries suffered by Chope, arguing that the indictment only      prison, a five-year term of supervised release, and $309,546
alleged the intent to cause serious bodily injury and that any    in restitution.
actual serious bodily injury that resulted from Jackson’s
actions went to a separate element of the offense not alleged                                    II.
in the indictment. Defense counsel admitted that there was no
case law on point in support of this argument, but he referred       The issue in this case is whether the Supreme Court’s ruling
the district court to the Supreme Court’s decision to grant       in Jones v. United States issued subsequent to Jackson’s
certiorari in Jones v. United States, 118 S. Ct. 1405 (1998),     conviction, but while his appeal was pending, compels us to
on the question of, first, whether paragraphs (1) through (3)     vacate his 25-year sentence and remand for resentencing. In
of 18 U.S.C. § 2119 describe sentencing factors or elements       Jones, the defendant was charged with violating the federal
of the offense and, second, if the paragraphs were deemed         carjacking statute, but the indictment failed to “reference the
sentencing enhancements, whether the statute was                  statute’s numbered subsections and charged none of the facts
constitutional. The district court overruled the objection,       mentioned in the latter two.” 119 S. Ct. at 1218. The same
concluding that current case law supported the view that the      is true in the instant case. Also in Jones, the subsequent jury
paragraphs were sentencing enhancements, and the court then       instructions issued by the district court “defined the elements
admitted the medical testimony because it was relevant to         subject to the Government’s burden of proof by reference
several facets of the government’s case against Jackson and       solely to the first paragraph of § 2119, with no mention of
                                                                  serious bodily injury” having actually occurred. Id. Although
                                                                  the district court here transmitted a special verdict form to the
