                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5147




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                                                            NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No.: 05-5147

                          UNITED STATES OF AMERICA

                                             v.

                               KENDALL JACKSON,
                                              Appellant
                               ____________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           District Court No.: 01-cr-00401-6
                    District Judge: The Honorable Edwin M. Kosik
                                ____________________

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 14, 2006

                      Before: SMITH and ROTH, Circuit Judges,
                              and YOHN, District Judge*

                              (Filed:   February 7, 2007)

                               ____________________

                                     OPINION
                               ____________________



_____________________

      *The Honorable William H. Yohn Jr., Senior District Judge for the Eastern District
of Pennsylvania, sitting by designation.
YOHN, District Judge.

       On February 10, 2003, a jury found Kendall Jackson guilty of four counts of

distribution and possession with the intent to distribute crack cocaine in violation of 21

U.S.C. § 841(a)(1). The amount of crack cocaine involved in these counts totaled 0.94

grams. Three days prior to his conviction, the District Court granted Jackson’s motion for

judgment of acquittal, filed pursuant to Federal Rule of Criminal Procedure 29 (“Rule

29”), with respect to the count of conspiracy to distribute and possess with intent to

distribute in excess of fifty grams of crack cocaine in violation of 21 U.S.C. § 846.1

       Jackson’s presentence report and its addendum concluded that Jackson was

accountable for at least 150 but less than 500 grams of crack cocaine associated with the

conspiracy. At Jackson’s sentencing hearing, FBI Agent Kevin Wevodau testified that

Jackson admitted to him in a February 27, 2002 interview that he bought and sold at least

168 grams of crack cocaine.2 Jackson denies making this statement. The District Court

credited the testimony of Agent Wevodau and found under the preponderance of the

evidence standard that the government had established that Jackson was responsible for

168 grams of crack cocaine as relevant conduct. The District Court sentenced Jackson to

235 months of imprisonment. Jackson appealed.



1
 Jackson’s co-defendants, Kevin Dowdy, Bernard Jones, and Sherrod Young, were charged and
convicted of the conspiracy count. A jury found that, with respect to the conspiracy, fifty grams
or more of crack cocaine were attributable to each co-defendant.
2
 This statement was not used by the government at Jackson’s trial due to the constitutional
principles established by Bruton v. United States, 391 U.S. 123 (1968).

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       We affirmed his conviction, but vacated his sentence and remanded for

resentencing in accordance with the Supreme Court’s intervening decision in United

States v. Booker, 543 U.S. 220 (2005). See United States v. Jackson, 149 Fed. Appx. 69

(3d Cir. 2005) (unpublished). On remand, the District Court imposed a sentence of 155

months of imprisonment. This timely appeal followed.

       The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We exercise

jurisdiction over this appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). See

United States v. Cooper, 437 F.3d 324, 327-28 (3d Cir. 2006).3

       Jackson contends that his sentence is unreasonable for two reasons. First, he

asserts that the District Court improperly considered as relevant conduct the drug

quantities involved in the conspiracy, even though it had granted a motion for acquittal on

the conspiracy count. Jackson believes that, under Booker, he should be sentenced based

on the 0.94 grams of crack cocaine found beyond a reasonable doubt by a jury, rather than

the 168 grams found by the District Court under a preponderance of the evidence

standard.4 In addition, Jackson argues that the District Court failed to impose a sentence


3
 In its brief which predates our decision in Cooper, the government argues Jackson’s appeal is
not properly before this court under 18 U.S.C. § 3742(a). We decided otherwise in Cooper. 437
F.3d at 327-28.
4
 Jackson’s position is that if the District Court had considered only 0.94 grams as relevant
conduct, the amount for which he was convicted, his base offense level would have been 16
which would have yielded an advisory sentence range of 41 to 51 months, rather than the range
of 235 to 293 months recommended by the presentence report and adhered to by the District
Court. We note, however, that Jackson’s current sentence of 155 months represents a significant
downward departure from the latter range.
        Further, to the extent that Jackson is arguing that the determination of the amount of

                                               3
in parity with his co-defendants in violation of 18 U.S.C. § 3553(a)(6). Jackson urges

that because the District Court reduced the sentences of co-defendants Bernard Jones,

Sherrod Young and Kevin Dowdy by nine-and-a-half to ten years,5 he is entitled to the

same reduction. He argues that the District Court unreasonably subtracted only 6.6 years

from his original sentence.

       Jackson’s argument that the District Court erred in considering the 168 grams of

crack cocaine as relevant conduct is contrary to legal and statutory authority and to the

sentencing guidelines. In United States v. Watts, 519 U.S. 148 (1997), the Supreme Court

held that an acquittal on a charge does not prevent the District Court from considering at

sentencing the underlying conduct, so long as it has been proven by a preponderance of

the evidence. 519 U.S. at 157. The majority opinion of Justice Stevens in Booker, after

discussing Watts,6 declared that “none of our prior cases is inconsistent with today’s

decision.” Booker, 543 U.S. at 241. Thus, Watts remains good law after Booker. While




crack cocaine must be made by a jury beyond a reasonable doubt, he is foreclosed by our
decision in Cooper. 437 F.3d at 330 (“As before Booker, the standard of proof under the
guidelines for sentencing facts continues to be preponderance of the evidence.”); see also United
States v. Gibbs, 190 F.3d 188, 203 (3d Cir. 1999) (stating that a preponderance of the evidence
must support the District Court’s determination of drug quantity (citing United States v. Miele,
989 F.2d 659, 663 (3d Cir. 1993)).
5
 The District Court reduced Jones’ sentence by ten years (from 360 months to 240 months),
Young’s sentence by nine-and-a-half years (from 324 to 210 months); and Dowdy’s sentence by
nine-and-a-half years (from 324 months to 210 months).
6
 The majority opinion of Justice Stevens also discussed United States v. Dunnigan, 507 U.S. 87
(1993), Witte v. United States, 515 U.S. 389 (1995), and Edwards v. United States, 523 U.S. 511
(1998).

                                                4
Jackson seeks to distinguish Watts because he was acquitted by a judge rather than by a

jury, he offers no authority for this proposition. Indeed, pursuant to 18 U.S.C. § 3661,

which was not invalidated by Booker,7 “[n]o limitation shall be placed on the information

concerning the background, character, and conduct of a person convicted of an offense

which a Court of the United States may receive and consider for the purpose of imposing

an appropriate sentence.” § 3661. The sentencing guidelines also do not limit the

information a sentencing court may consider in imposing a sentence. See U.S. Sentencing

Guidelines Manual § 1B1.4 (2006). Moreover, they clearly permit the District Court to

consider all other related conduct. See id. at § 1B1.3. The commentary to § 1B1.3 states:

“Conduct that is not formally charged or is not an element of the offense of conviction

may enter into the determination of the applicable guideline sentencing range.” § 1B1.3

cmt. background (emphasis added). Thus, we find no error by the District Court in

considering the 168 grams as relevant conduct.

       Jackson’s second argument that his sentence is unreasonable because the District

Court failed to achieve parity among his co-defendants is also not persuasive. Section

3553(a)(6) provides that the District Court shall consider “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found guilty of

similar conduct.” § 3553(a)(6). Congress’ intent in passing § 3553(a)(6) was to promote

national uniformity in sentencing rather than uniformity among defendants in the same


7
 See Booker, 543 U.S. at 259 (stating that “[w]ith [18 U.S.C. §§ 3553(b)(1) and 3742(e)] excised,
. . . the remainder of the Act satisfies the Court’s constitutional requirements”).

                                               5
case. United States v. Seligsohn, 981 F.2d 1418, 1428 (3d Cir. 1992) (citing United

States v. Higgins, 967 F.2d 841, 845 (3d Cir. 1992)). After Booker, we concluded that a

defendant cannot rely upon § 3553(a)(6) to argue for a reduced sentence to create parity

among his or her co-defendants. United States v. Parker, 462 F.3d 273, 277 (3d Cir.

2006). However, “although § 3553(a) does not require district courts to consider

sentencing disparities among co-defendants, it also does not prohibit them from doing

so.” Parker, 462 F.3d at 277. Such a consideration is certainly within the court’s “broad

discretion in imposing a sentence within a statutory range.” Id. (quoting Booker, 543

U.S. at 233). In this case, the District Judge made a discretionary reduction of Jackson’s

sentence by roughly the same percentage (one-third) that he reduced the sentences of

Jackson’s co-defendants, establishing what he considered “appropriate parity.” Jackson’s

proposition that “parity by percentage” is unreasonable not only lacks legal support, but

his proposed alternative of subtracting the same number of years for all defendants defies

all logic. As the government illustrates, this would mean that if one defendant were

facing a twenty-year sentence and another a ten-year sentence, and the first defendant’s

sentence were reduced by ten years, the second would receive no jail time–an untenable

result even in the post-Booker discretionary regime. Accordingly, we will affirm the

District Court’s judgment of sentence.




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