                                                                          FILED
                           NOT FOR PUBLICATION                            NOV 14 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                       No. 12-10629

              Plaintiff - Appellee,             D.C. No. 3:11-cr-00142-RCJ-
                                                VPC-1
 v.

CLIFTON JAMES JACKSON,                          MEMORANDUM*

             Defendant - Appellant.


                  Appeal from the United States District Court
                            for the District of Nevada
                Robert Clive Jones, Chief District Judge, Presiding

                          Submitted October 16, 2013.**
                            San Francisco, California

Before: THOMAS and MCKEOWN, Circuit Judges, and BENNETT, District

Judge.***




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The panel unanimously concludes that this case should be submitted
without oral arguments pursuant to Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for the Northern District of Iowa, sitting by designation.
      A jury convicted appellant Clifton James Jackson of being a felon in

possession of a firearm, in violation of 18 U.S.C. §§ 922(b)(1) and 924(a)(2).

Casino employees had found a bag containing a firearm stuck between two slot

machines near where Jackson had been playing slots in a Reno casino. The bag

and firearm were traced to Jackson with evidence including a library card and keys

attached to the bag and surveillance videos. The district court denied Jackson’s

pro se motion for new trial, based on alleged ineffective assistance of trial counsel,

and sentenced Jackson to a mandatory minimum of 180 months of imprisonment

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On this direct

appeal, Jackson asserts that we should grant him a new trial, because his trial

counsel was ineffective in failing to call a witness; that, without the testimony of

the missing witness, the evidence was insufficient to convict him; and that the

district judge improperly counted a 1991 Virginia conviction as a predicate

“serious drug offense” for the ACCA enhancement of his mandatory minimum

sentence. We have jurisdiction over Jackson’s appeal of the denial of his motion

for new trial and the sufficiency of the evidence pursuant to 28 U.S.C. § 1291, and

over Jackson’s appeal of his sentence pursuant to 18 U.S.C. § 3742(a). We affirm.

      1.a. Rule 33 provides for a new trial in the “interest of justice.” See Fed. R.

Crim. P. 33(a); United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992). We


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review the denial of a motion for new trial for abuse of discretion. United States v.

Steel, 759 F.2d 706, 713 (9th Cir. 1985). The district court did not abuse its

discretion in denying Jackson’s Rule 33 motion, because the basis for the motion

was ineffective assistance of counsel, which was not apparent on the record. See

United States v. McGowan, 668 F.3d 601, 605 (9th Cir. 2012). Jackson’s

“ineffective assistance” claim can be brought pursuant to the “customary procedure

for challenging the effectiveness of defense counsel in a federal criminal trial . . .

under 28 U.S.C. § 2255.” United States v. Pirro, 104 F.3d 297, 299 (9th Cir. 1997)

(internal quotation marks and citations omitted). We will not consider an

“ineffective assistance” claim on direct appeal, unless the record is “sufficiently

developed” or the legal representation was “obviously” inadequate. McGowan,

668 F.3d at 605. The record here was not “sufficiently developed” simply because

trial counsel’s challenged decision was purportedly “tactical.” That

characterization is not enough for us to determine “what counsel did, why it was

done, and what, if any, prejudice resulted.” McGowan, 668 F.3d at 605 (emphasis

added).

      b. We reject Jackson’s argument that there was insufficient evidence to

convict him, where the jurors did not hear the testimony of a casino employee who

would have provided a different version of the finding of the bag with the firearm


                                            3
in it, whether that argument goes to the “prejudice” prong of his “ineffective

assistance” claim or is a stand-alone challenge to the sufficiency of the evidence.

Viewing the evidence that was presented in the light most favorable to the

prosecution, a rational trier of fact certainly could have found the essential

elements of the crime charged against Jackson beyond a reasonable doubt, where

there was overwhelming evidence linking Jackson to the firearm, independent of

the question of who, exactly, found the bag containing the firearm. United States

v. Stargell, 725 F.3d 1015, 1019 (9th Cir. 2013).

      2. We also reject Jackson’s contention that his 1991 Virginia conviction for

distributing cocaine was not a predicate “serious drug offense” for an ACCA

enhancement to his mandatory minimum sentence. Descamps v. United States,

___ U.S. ___, ___, 133 S. Ct. 2276, 2282 (2013) (citing 18 U.S.C. § 924(e)(1)).

Jackson’s Virginia indictment identified the basis for the charge as Va. Code Ann.

§ 18.2-248 (1991), which has the necessary “‘maximum term of imprisonment of

ten years or more.’” McNeill v. United States, ___ U.S. ___, ___, 131 S. Ct. 2218,

2220 (2011) (quoting § 924(e)(2)(A)(ii)). His plea agreement in the Virginia case

also expressly stated that he was pleading guilty to an offense with a minimum

sentence of five years and a maximum sentence of forty years.




                                           4
      Jackson contends that he was not sentenced for an offense under § 18.2-248

(1991), because his actual sentence of 6 years, with 18 months suspended, was less

than the 5-year minimum under that statute, and Virginia courts are not permitted

to suspend sentences below a statutory minimum. Pursuant to Va. Code Ann.

§ 19.2-303 (1991), however, Virginia courts are authorized to suspend all or part of

a statutory sentence. See Peyton v. Commonwealth, 604 S.E.2d 17, 19 (Va. 2004).

Mouberry v. Commonwealth, 575 S.E.2d 567 (Va. Ct. App. 2003), on which

Jackson relies, is distinguishable, because that case involved Va. Code Ann.

§ 18.2-308.2(A), which expressly prohibited suspending sentences below the

statutory minimum. Id. at 580 (quoting Va. Code Ann. § 18.2-308.2).

      Also, United States v. Alvarez-Hernandez, 478 F.3d 1060, 1064 (9th Cir.

2007), and the definition of “sentence of imprisonment” as “the maximum sentence

imposed” under U.S.S.G. § 4A1.2, are inapplicable. Application Note 1 to

U.S.S.G. § 4B1.4, the “Armed Career Criminal” guideline, makes clear that the

definitions of “violent felony” and “serious drug offense” in 18 U.S.C. § 924(e)(2)

are not identical to the definitions of “crime of violence” and “controlled substance

offense” used in § 4B1.1, the career offender guideline, and that the method for

determining prior sentences under § 4A1.2 is inapplicable to the ACCA

enhancement. Moreover, the plain language of § 924(e)(2)(A)(ii) defines a


                                          5
“serious drug offense” on the basis of the “maximum term of imprisonment . . .

prescribed by law,” not on the basis of the actual sentence. 18 U.S.C.

§ 924(e)(2)(A)(ii); McNeill, ___ U.S. at ___, 131 S. Ct. at 2220.

      Finally, although § 18.2-248 does not, itself, define or cross-reference any

definition of “controlled substance,” or define or cross-reference any definition of

“cocaine” as a “controlled substance,” another Virginia statute, § 54.1-3448, does

define “cocaine” as a “Schedule II controlled substance.” See Va. Code Ann.

§ 54.1-3448(1). Section 18.2-248(A) refers to “controlled substances” and

“Schedule II controlled substances,” and both §§ 18.2-248 and 54.1-3448 are part

of the Virginia Drug Control Act, see Hylton v. Commonwealth, 723 S.E.2d 628,

632 (Va. Ct. App. 2012); Lane v. Commonwealth, 659 S.E.2d 553, 557 & 559 n.6

(Va. Ct. App. 2008); Shears v. Commonwealth, 477 S.E.2d 309, 401 & n.4 (Va. Ct.

App. 1996). Thus, § 18.2-248(A) defines a “serious drug offense,” because it

involves “cocaine,” which is specifically defined as a “controlled substance” under

state law, as it is under federal law. See 21 U.S.C. § 802(6), (17)(D); 21 U.S.C.

§ 812, Schedule II, (a)(4).

      We reject Jackson’s challenges to both his conviction and his sentence.

      AFFIRMED.




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