                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0172n.06
                                                                                          FILED
                                             10-4254
                                                                                     Feb 13, 2012
                          UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                               )         ON APPEAL FROM THE
                                                        )         UNITED STATES DISTRICT
       Plaintiff Appellee,                              )         COURT     FOR     THE
                                                        )         SOUTHERN DISTRICT OF
                                                        )         OHIO
v.                                                      )
                                                        )
NIGEL L. JACKSON,                                       )                 OPINION
                                                        )
       Defendant-Appellant.                             )



BEFORE:        DAUGHTREY, MOORE and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge. Defendant-Appellant Nigel Jackson appeals his conviction

for one count of conspiracy to distribute and possession with intent to distribute marijuana.

Specifically, Jackson claims for the first time on appeal that the government breached the terms of

his plea agreement, and he requests that this court vacate his sentence and remand his case back to

the district court to determine the extent and the effect of the alleged breach. We have considered

the parties’ arguments and the record of the proceedings below, and we find no error.

       Under the terms of the plea agreement, Jackson agreed to plead guilty and to truthfully

provide a “complete statement” concerning all matters relating to the superceding indictment against

Jackson and twenty-eight others. In return, the government dismissed two additional counts against

Jackson and promised to refrain from using “any self-incriminating information so provided . . . in
No. 10-4254
United States v. Jackson

determining the applicable guideline range for sentencing, or as a basis for upward departure from

the advisory guideline range” against Jackson. R. 565, Plea Agreement.

       Prior to Jackson’s sentencing hearing, the Government submitted a sentencing memorandum

and a copy of a book Jackson co-authored, Brittany Hills Conspiracy: Papa Joe’s 177 Days on the

Run (the “book”). R. 1105, Sentencing Memorandum. The Government’s sentencing memorandum

urged the court to consider the book “for a possible enhancement in sentence, in that it subjects those

labeled by the defendant as ‘snitches’ to harassment and threats to their personal safety within the

federal prison system.” Id. at 12-13.

       At sentencing, the district court first considered Jackson’s multiple objections to his

Presentence Report (“PSR”). Jackson’s objections all pertained to sentencing enhancements for both

his leadership role in the instant case and his prior criminal history. See R. 1340, Sentencing Tr.

at 40. While the PSR recommended Jackson be assigned 11 criminal history points with a criminal

history category of V, the district lowered Jackson’s criminal history by one point and reduced his

criminal history category to IV after finding that Jackson’s criminal history was “at best, slightly

overstated.”   R.   1340 at 31, 38.      Consequently, the district court arrived at a guidelines

imprisonment range of 151-188 months. Id. at 39.

       The district court then heard arguments from both parties regarding the book. The

Government argued that Jackson’s book “should be considered” because of “the impact it has had

on other people who have cooperated and how they have been labeled within the prison system . .

. as a snitch,” which is “very difficult no matter what jail you go to.” R. 1340, Sentencing Tr. at

28. Jackson’s lawyer responded by noting that Jackson “did his best to be cathartic in this book,”

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No. 10-4254
United States v. Jackson

but acknowledged that “I guess you can take this different ways.” Id. at 42. Jackson spoke on his

own behalf and expressed “no regrets as far as anything I said in the book.” Id. at 47. At no point

during Jackson’s sentencing hearing, however, did either Jackson or his lawyer contend that the

Government’s decision to make the book an issue at sentencing violated his plea agreement.

        The district court sentenced Jackson to 140 months in prison, noting that while the court

“considered the book . . . I don’t believe . . . it plays into the sentence in any direct way.” Id. at 58.

The district court also explicitly stated that it was not considering whether Jackson cooperated. Id.

at 53-54. The district court made clear the 18 U.S.C. § 3553(a) factors that it considered. Id. at 58.

The district court then closed the hearing by asking the parties: “Are there any other matters that I

have not addressed?” Id. at 60. Neither party raised an objection in response to the district court’s

invitation. Id.; see also United States v. Bostic, 371 F.3d 865, 872 (6th Cir. 2004) (requiring district

courts, after pronouncing the defendant’s sentence but before adjourning the sentencing hearing, “to

ask the parties whether they have any objections to the sentence just pronounced that have not

previously been raised”).

        On appeal, Jackson argues for the first time that the Government breached its plea agreement

by submitting the book to the district court and by arguing that the book should play a role in the

district court’s decision calculus. Specifically, Jackson contends that the Government breached the

plea agreement “when it argued, without any evidentiary support, that Jackson failed to provide his

information it wanted and mislead [sic] the government.” Appellant Br. at 5. Jackson also alleges

that the “[G]overnment committed a plain error” when it argued “without any evidentiary support,

that the book he published made it difficult to obtain cooperation from his co-defendants.” Id.

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No. 10-4254
United States v. Jackson

        Because Jackson raises this issue for the first time on appeal, this Court reviews Jackson’s

claim for plain error. Bostic, 371 F.3d at 872-3. (“If a party does not clearly articulate any objection

and the grounds upon which the objection is based, when given this final opportunity to speak, then

that party will have forfeited its opportunity to make any objections not previously raised and thus

will face plain error review on appeal.”). In order for Jackson to prevail under a plain error standard,

he must establish: (1) “an error”; (2) the “legal error must be clear or obvious”; (3) “the error must

have affected the appellant’s substantial rights”; and (4) if the above three prongs are satisfied, the

court of appeals has the discretion to remedy the error – discretion which ought to be exercised only

if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.”

Puckett v. United States, 129 S. Ct. 1423, 1429 (2009).

        Jackson fails to satisfy any of the Puckett prongs, let alone all of them. First, there was no

legal error. Jackson offers no cognizable reason why the discussion of the book even implicates the

plea agreement. The fact that the Government raised the book as a possible sentencing consideration

does not amount to a breach of Jackson’s plea agreement. The plea agreement only required the

government to refrain from using self incriminating information that Jackson provided in the course

of cooperating with the Government. R. 565, Plea Agreement, ¶ 4. Moreover, this Court’s review

of the Plea Agreement also uncovers no evidence of Government breach. Indeed, because Jackson

did not produce the book as a part of his required “complete statement” or “debriefing,” the book

simply does not fall within the scope of the government’s promise “that any self-incriminating

information [provided while cooperating with the government] will not be used against the defendant



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No. 10-4254
United States v. Jackson

in determining the applicable guideline range for sentencing, or as a basis for upward departure from

the advisory guideline range.” Id. at ¶ 4. As such, there was no legal error on the merits.

       Because there was no legal error, Jackson’s appeal automatically fails the second Puckett

prong. Jackson’s appeal fails the third Puckett prong because the district court expressly stated that

the book did not directly affect Jackson’s below-Guidelines sentence. As such, the fourth prong of

Puckett denies this Court the discretion to offer Jackson any relief. Accordingly, Jackson’s

conviction is AFFIRMED.




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