                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-7-2006

Jackson v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2044




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"Jackson v. USA" (2006). 2006 Decisions. Paper 611.
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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                       No: 03-2044

                                 VINCENT JACKSON,

                                             Appellant


                                               v.


                           UNITED STATES OF AMERICA

                     On Appeal from the United States District Court
                              for the District of New Jersey
                             District Court No. 00-cv-00664
                        District Judge: Hon. Harold A. Ackerman

                    Submitted Pursuant to Third Circuit LAR 34.1(a)

                                      July 11, 2006

               Before: SLOVITER, McKEE & RENDELL Circuit Judges
                              (Filed August 7, 2006)

                                        OPINION

McKee, Circuit Judge

       Vincent Jackson challenges the sentence the district court imposed after partially

granting the habeas petition Jackson had filed under 28 U.S.C. § 2255. The court vacated

Jackson’s conviction for his involvement in a cocaine trafficking conspiracy in violation

of 21 U.S.C. § 846, but reimposed the sentence of 300 months that the court had initially
imposed after the jury convicted Jackson of drug conspiracy (21 U.S.C. § 846), operating

a continuing criminal enterprise (21 U.S.C. § 848(c)), and related offenses. The court

granted a Certificate of Appealability and this appeal followed. Jackson now argues that

the court erred in reimposing a sentence of 300 months total imprisonment even though

his conviction for cocaine-trafficking had been vacated. For the reasons that follow, we

will affirm.

       Since we are writing primarily for the parties who are familiar with this dispute,

we need only provide a brief statement of the procedural and factual background to

facilitate our discussion.

       Jackson’s habeas counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967). Anders only applies to direct appeals, and does not apply to collateral

proceedings such as this habeas appeal. See United States v. Youla, 241 F.3d 296, (3d

Cir. 2001). Appellate counsel has nevertheless followed the procedure required under

Anders and now seeks to withdraw based upon his determination that Jackson has no

meritorious appellate issue. In his Anders brief, counsel states: “Judge Ackerman, as well

as this Court, heard Appellant’s arguments, gave them the consideration. . . they were

due, and after Judge Ackerman reduced Appellant’s sentence, . . . concluded that the

remaining relief he sought was without merit and denied same.” Appellant’s Br. at 12.

       We agree that there are no meritorious issues for appeal. However, Jackson has

filed a pro se brief in which he argues that the district court erred in reimposing a



                                              2
sentence of 300 months imprisonment even though the court vacated his conviction for

drug trafficking. That claim requires only brief discussion.

       As noted, Jackson was convicted of engaging in a “continuing series of violations

of “drug trafficking laws in violation of 21 U.S.C. § 848(c)(2) (continuing criminal

enterprise or “CCE”). The § 846 conspiracy that he was convicted of was one of the

predicate violations required for a CCE conviction under § 848. See United States v.

Edmonds, 80 F.3d 810, 814 (3d Cir. 1996) (en banc). Jackson was also convicted of two

counts of violating 21 U.S.C. § 841, both of which also constitute predicate offenses for a

CCE conviction under 21 U.S.C. § 848. See Richardson v. United States, 526 U.S. 815

(1999). Accordingly, the fact that the court vacated Jackson’s conviction for a separate

conspiracy under § 846, did not negate the fact that the jury unanimously found beyond a

reasonable doubt that Jackson committed each of the individual offenses comprising the

CCE that he was also convicted of. Id.

       Jackson does not dispute that the Offense Level for the two drug-trafficking

offenses he was convicted of was 39. His Base Offense Level for violating § 841 was 34.

Two levels were added based upon his possession of a handgun “in connection with” the

offenses he was convicted of, and three more levels were added because he supervised at

leave five others. After the district court allowed him a two point reduction for his rather

belated acceptance of responsibility, the applicable advisory sentencing range under the

Guidelines was 262 to 327 months. Jackson does not claim that his sentence of 300



                                             3
months is unreasonable, and nothing on this record suggests that it is.

       Accordingly, we agree with habeas counsel’s representation that there are no

nonfrivolous issues for appeal, and the judgment of sentence will be affirmed.




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