                                                          NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                   No. 16-2865
                                  _____________

                        UNITED STATES OF AMERICA

                                         v.

                           JEREL JACKSON, a/k/a Jinx

                                   Jerel Jackson,
                                            Appellant
                                  _____________

                 On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                       District Court No. 2-13-cr-00622-001
                District Judge: The Honorable C. Darnell Jones, II

                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              September 25, 2017

     Before: SMITH, Chief Judge, McKEE, and RESTREPO, Circuit Judges

                             (Filed: October 18, 2017)
                             _____________________

                                    OPINION*
                             _____________________

*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
SMITH, Chief Judge.

      On November 14, 2013, a grand jury returned a three-count indictment against

Jerel Jackson alleging sex trafficking of three individuals, one a minor, in violation

of 18 U.S.C. §§ 1591 and 1594(a). Ten months later, on September 19, 2014,

Jackson’s appointed counsel sought leave to withdraw and new counsel was

appointed. A superseding indictment was filed in January of 2015, and a second

superseding indictment followed in February, asserting a total of five counts of sex

trafficking, with two of the counts alleging that the victim was a minor.

      On March 18, 2015, after a thoughtful and extensive plea colloquy with the

District Court, Jackson pleaded guilty to the five-count second superseding

indictment. Early on in the proceeding, the District Court asked Jackson why he was

pleading guilty. Jackson responded by saying: “I’m pleading guilty because I am

guilty.” JA123. Once the District Judge carefully reviewed the rights that Jackson

would waive if he pleaded guilty, he asked Jackson: “[D]o you still want to give up

your right to a trial and enter a plea of guilty?” JA137. Jackson responded

affirmatively. The judge followed this question by inquiring if Jackson was “sure,”

and Jackson affirmed that he was. Then the judge asked if Jackson had “[a]ny

question in your mind about this?” JA138. Jackson confirmed he did not. The

government then made a detailed proffer of the factual basis for the plea. In response

to the Court’s inquiry, Jackson confirmed that he wanted to enter a guilty plea and
                                          2
that he was making that decision of his own free will because he was guilty. JA144-

45. The Court asked Jackson how he wished to plead. Jackson answered: “Guilty.”

JA146. Then, the District Court asked Jackson how he was pleading as to each of

the five counts. Jackson responded “Guilty” five times. JA146-47. The Court

proceeded to enter its findings on the record, which included that Jackson’s plea was

knowing and voluntary. It accepted Jackson’s plea and adjudged him guilty of the

five counts. JA147.

      In November of 2015, Jackson requested the appointment of new counsel.

The District Court conducted a hearing on the request. JA153. During that hearing,

Jackson advised the court that he “wasn’t trying to withdraw a guilty plea at all. . . .

That’s not what I’m trying to do. . . . [A]ll I ask for is what you just did, is just give

me counsel so I can consult . . . and see if that’s what I should . . . do.” JA176.

      More than a year after pleading guilty, on May 16, 2016, and before

sentencing, Jackson filed a motion to withdraw his guilty plea. Jackson asserted he

was innocent of all charges filed against him and always wanted to proceed to trial

and have his innocence established. JA52. The District Court denied the motion.

Thereafter, the Court sentenced Jackson to 30 years’ imprisonment and 5 years’

supervised released. This timely appeal followed.1



1
  The District Court exercised jurisdiction under 18 U.S.C. § 3231. We exercise
appellate jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
                                            3
       On appeal, Jackson argues that: (1) counsel was ineffective for permitting

him to enter a guilty plea; (2) the District Court abused its discretion by denying the

motion to withdraw his guilty plea; and (3) his sentence was improperly calculated.

For the reasons set forth below, we will affirm Jackson’s convictions, but vacate his

sentence and remand for resentencing.

      At the outset, we decline Jackson’s invitation to review his ineffective

assistance of counsel claim. “It has long been the practice of this court to defer the

issue of ineffectiveness of trial counsel to a collateral attack.” United States v.

Thornton, 327 F.3d 268, 271 (3d Cir. 2003). Indeed, the Supreme Court has

endorsed this approach. Massaro v. United States, 538 U.S. 500, 504-06 (2003).

      Jackson contends that his counsel was ineffective because they failed to move

for the dismissal of the allegedly deficient indictment. According to Jackson, this

presents a legal question that may be addressed in a direct appeal. United States v.

Headley, 923 F.2d 1079, 1083 (3d Cir. 1991). We appreciate this argument, but we

do not agree that this is strictly a legal question. If there is legal error, “[t]he court

must then determine whether, in light of all the circumstances, the identified acts or

omissions were outside the wide range of professionally competent assistance.”

Strickland v. Washington, 466 U.S. 668, 690 (1984). Because there were three

attorneys who represented Jackson in the trial court, we believe that the record




                                            4
should be further developed in order to resolve the deficient performance prong and

that the District Court should address this ineffectiveness claim in the first instance.

      Jackson also argues on appeal that the District Court erred in denying his

motion to withdraw his guilty plea. In determining whether to grant Jackson’s

motion, the District Court appropriately considered “(1) whether [Jackson] asserts

his innocence; (2) the strength of [Jackson's] reasons for withdrawing the plea; and

(3) whether the government would be prejudiced by the withdrawal.” United States

v. Jones, 336 F.3d 245, 252 (3d Cir. 2003). The Court found that Jackson’s

“subsequent proclamations of innocence are not credible.”             JA11.    It further

concluded that Jackson’s “bases for the withdrawal request are lacking in factual and

legal merit; and a tremendous potential for prejudice will likely result if the

government is required to litigate this case at this time.” Id.

      We are highly deferential to the District Court’s credibility determinations and

reverse only upon a showing of clear error. Covertech Fabricating, Inc. v. TVM

Bldg. Prods., Inc., 855 F.3d 163, 173 (3d Cir. 2017). We review for abuse of

discretion a District Court’s decision to deny such a motion. Jones, 336 F.3d at 252.

In light of the record before us, we conclude that the District Court did not err, clearly

or otherwise, in making its adverse credibility finding regarding Jackson’s

proclaimed innocence. Because “[b]ald assertions of innocence . . . are insufficient

to permit a defendant to withdraw [his] guilty plea,” we will not disturb the District


                                            5
Court’s order denying the motion.2 United States v. Brown, 250 F.3d 811, 818 (3d

Cir. 2001).

      Finally, Jackson points out that his sentencing range was erroneously

calculated in applying U.S.S.G. § 3D1.4 to obtain the combined offense level. Here,

although the District Court correctly determined that five units were present, it

incorrectly increased the combined level offense adjustment to five levels rather than

the proper four levels. JA206. The government concedes that Jackson’s guideline

range was erroneously calculated and that this miscalculation affected his substantial

rights. Accordingly, we will vacate the sentence and will remand the case to the

District Court for resentencing. See United States v. Mateo-Medina, 845 F.3d 546,

550 (3d Cir. 2017) (acknowledging that we generally vacate a procedurally deficient

sentence and remand for resentencing).




2
 In addition, our review of the record reveals that the District Court’s credibility
assessment also has support from statements Jackson made at sentencing. He
acknowledged that, contrary to his family’s belief that he was entirely innocent, he
was guilty of some of the things or some of the counts that I’m being charged with.
But I can assure you that I never once in my life forced a woman to do anything
sexual . . . .” JA226. He also confirmed that he “wanted to withdraw [my guilty
plea] . . . even though I know for a fact that I am guilty of certain things that I did.”
JA233.
                                           6
