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


11-9-2006

USA v. Jackson
Precedential or Non-Precedential: Precedential

Docket No. 05-4091




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                                  PRECEDENTIAL

 UNITED STATES COURT OF APPEALS
      FOR THE THIRD CIRCUIT


               No. 05-4091



    UNITED STATES OF AMERICA

                     v.

    JOHNATHAN RYAN JACKSON,

                          Appellant



Appeal from the United States District Court
 for the Eastern District of Pennsylvania
 (D.C. Criminal Action No. 05-cr-00004)
District Judge: Honorable Paul S. Diamond



Submitted Under Third Circuit LAR 34.1(a)
           September 28, 2006



Before: McKEE and AMBRO, Circuit Judges
    RESTANI,* Chief Judge, Court of International Trade

             (Opinion filed: November 9, 2006)

Elizabeth T. Hey
   Assistant Federal Defender
Brett G. Sweitzer
   Assistant Federal Defender
David L. McColgin
   Assistant Federal Defender
   Supervising Appellate Attorney
Maureen Kearney Rowley
   Chief Federal Defender
Federal Community Defender Office
for the Eastern District of Pennsylvania
Suite 540 West - Curtis Center
601 Walnut Street
Philadelphia, PA 19106

       Counsel for Appellant

Patrick L. Meehan
  United States Attorney
Robert A. Zauzmer
  Assistant United States Attorney
  Chief of Appeals
Sarah L. Grieb
  Assistant United States Attorney

       *
       Honorable Jane A. Restani, Chief Judge, United States
Court of International Trade, sitting by designation.

                               2
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee



                OPINION OF THE COURT


AMBRO, Circuit Judge

       We address in this case further aspects of the sentencing
process for our Circuit in the wake of the Supreme Court’s
decision in United States v. Booker, 

(2005). In so
doing, we affirm the sentence imposed by the District Court.

           I. Factual and Procedural Background

       Johnathan Ryan Jackson was arrested in 2004 after an
investigation into reports of counterfeit $20 bills circulating in
Pottstown, Pennsylvania. As a result of this investigation, local
police officers and U.S. Secret Service agents obtained a search
warrant for an apartment unit in Pottstown. Upon executing the
search warrant, the police found Jackson inside the apartment
with a color photocopier, a paper cutter and utility knife, white
résumé paper, two individual counterfeit $20 bills, 24 other
counterfeit $20 bills yet to be cut from printed sheets of the
résumé paper, and $287 in legitimate U.S. currency (including
two $20 bills that had served as patterns for the counterfeits).

                                3
Officers also found what appeared to be a line of powdered
cocaine.

        Jackson quickly admitted his crimes and, after
indictment, notified the Government of his intent to plead guilty
to the charges—one count each of counterfeiting obligations of
the United States, 18 U.S.C. § 471, uttering counterfeit
obligations, 

and dealing in counterfeit obligations, 

Jackson admitted to having produced approximately
$50,000 in counterfeit currency over six months, selling much
of it for about 30 cents on the dollar, and using the rest at flea
markets and bars or with drug dealers. The full extent of
Jackson’s criminal behavior likely would not have been known
but for his cooperation.

       At Jackson’s sentencing hearing, the District Court
calculated the advisory Sentencing Guidelines range to be 37–46
months of imprisonment, followed by between two and three
years of supervised release. The recommended range stemmed
principally from the amount of counterfeit currency to which
Jackson had admitted producing (adding six levels to the base
offense level of nine) and by Jackson’s criminal history category
of VI (the highest possible). He also received a three-level
reduction in the base offense level for his early guilty plea, thus
sparing the Government the expense of preparing for and
conducting a trial.

       Jackson made two principal arguments to the District


                                4
Court in favor of a sentence below the advisory Guidelines
range. First, he asserted that his “extraordinary acceptance of
responsibility” warranted a downward departure pursuant to the
Guidelines themselves. Second, Jackson noted many mitigating
factors for the Court to consider in the exercise of its sentencing
discretion, including an upbringing in which drugs were
commonplace and contributed to his own addiction. Jackson’s
drug problems, in addition to providing the impetus for his
counterfeiting activities, also led to a particularly acute eight-
month period in which he committed all of the crimes
accounting for his high Guidelines criminal history score. These
mitigating factors, argued Jackson, warranted a sentence below
the advisory Guidelines range.

      After adopting the presentence report (with minor
changes), the Judge began Jackson’s sentencing hearing as
follows:

       Under the Supreme Court’s decision in Booker,
       the guidelines are advisory, not mandatory.
       Accordingly, in reviewing the revised presentence
       investigation report, I have considered the
       guideline range in the report as just one of many
       factors, including the nature and circumstances of
       the offense, and the history and characteristics of
       the defendant, the pertinent sentencing
       commission policy statements, such as the need to
       avoid unwarranted sentencing disparities and the


                                5
      need to provide restitution to victims, the need for
      the sentence to provide for just punishment for the
      offenses charged, the need to provide adequate
      deterrence to criminal conduct, the need to
      promote respect for the law, and the need to
      protect the public from further crimes of the
      defendant.

Next, Jackson’s attorney presented the arguments noted above,
followed by a response from the attorney for the United States.
The Judge then imposed Jackson’s sentence of 37 months (the
bottom of the advisory Guidelines range), followed by three
years of supervised release, and the mandatory special
assessment of $300. (No fine was imposed due to Jackson’s
inability to pay.) The Judge also recommended to the Bureau of
Prisons that Jackson participate in drug and psychological
treatment programs. Explaining Jackson’s sentence, the Judge
said:

             Mr. Jackson, you’ve committed very
      serious crimes, as I’ve described above. You’ve
      pled guilty to three counts of counterfeit currency-
      related crimes.

             I considered the following factors as
      significant in determining the sentence that I will
      impose: your seven prior adult convictions [and]
      that, in 2000, you were twice convicted of


                               6
       aggravated assault, and these crimes involved
       violence.

              I have also considered the very persuasive
       comments made by your very capable counsel. I
       have considered the circumstances of your
       upbringing, including your parents’ drug
       addiction, and your financial circumstances.

       Jackson makes two claims on appeal: (1) that the District
Court erred by failing explicitly to rule on his motion for a
downward departure from the initial Guidelines range, and (2)
that the Court did not adequately consider all of the relevant
factors of 18 U.S.C. § 3553(a) in refusing to vary his sentence
from that range.1

                        II. Discussion

       In United States v. Gunter, 

(3d Cir. 2006),
we made explicit the three-step process that District Courts in
this Circuit should follow after the Supreme Court’s ruling in
Booker:


       1
       The District Court had subject matter jurisdiction
pursuant to 18 U.S.C. § 3231. We have appellate jurisdiction
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). See
United States v. Cooper, 

, 327–28 & n.4 (3d Cir.
2006).

                               7
             (1) Courts must continue to calculate a
       defendant’s Guidelines sentence precisely as they
       would have before Booker.

              (2) In doing so, they must formally rule on
       the motions of both parties and state on the record
       whether they are granting a departure and how
       that departure affects the Guidelines calculation,
       and take into account our Circuit’s pre-Booker
       case law, which continues to have advisory force.

              (3) Finally, they are to exercise their
       discretion by considering the relevant § 3553(a)
       factors in setting the sentence they impose
       regardless whether it varies from the sentence
       calculated under the Guidelines.

(quotation marks, brackets, and citations omitted)
(citing United States v. King, 

, 194, 196 (3d Cir.
2006); 

, 330).

        The two points of error that Jackson presses in this appeal
fall into the second and third steps set out in Gunter. The first
alleged error relates to a Guidelines “departure,” and the second
to a Guidelines “variance.”2 We address each in turn.


       2
       It has been our practice to refer to sentences outside the
Guidelines range that are given for reasons contemplated by the

                                8
       A. Gunter’s Step Two: Guidelines Departures

        Pre-Booker, district courts had the (limited) authority to
depart from the mandatory Guidelines range if they found “that
there exist[ed] an aggravating or mitigating circumstance . . . of
a kind, or to a degree, not adequately taken into consideration by
the Sentencing Commission in formulating the guidelines that
. . . should result in a sentence different from that described.”
U.S.S.G. § 5K2.0(a)(1).3 Our Court’s jurisdiction to review the
denial of such departures depended on a district court’s reason
for denial. If the judge believed s/he could not legally depart on


Guidelines themselves (under U.S.S.G. § 4A1.3 and Ch. 5, Pt.
K) as “departures,” and sentences outside the Guidelines range
that are given in the exercise of a district court’s discretion
pursuant to Booker (which may not have been supported by our
departure jurisprudence) as “variances.” See United States v.
Vampire Nation, 

, 195 n.2 (3d Cir. 2006); see also

n.10; 

n.5. It
would aid our review of criminal sentences if district courts and
counsel employed this terminology as well.
       3
         Courts were expected “rarely” to give a Guidelines
departure. See U.S.S.G. § 5K2.0, comment. And so it was. See
United States Sentencing Commission, “Federal Sentencing
Statistics by State, District & Court,” Fiscal Year 2003, at 11
(showing that non-Government-initiated downward departures
were granted in only 7.5% of cases nationally and in 7.4% of
c a s e s       i n      o u r      C i r c u i t ) ,       a t
http://www.ussc.gov/JUDPACK/2003/3c03.pdf.

                                9
the ground asserted, we had jurisdiction to review for legal
error; if, instead, the judge recognized her/his authority to depart
but chose not to do so, we lacked jurisdiction to review that
decision. United States v. Denardi, 

, 271–72 (3d
Cir. 1989) (citing 18 U.S.C. § 3742); see also United States v.
D’Angelico, 

, 141 (3d Cir. 2004); United States v.
Allen, 

, 247 (3d Cir. 2000); United States v.
Mummert, 

, 205 (3d Cir. 1994). Not surprisingly,
we needed district judges to “state expressly whether [their]
denial of [a] defendant’s departure request was based on legal or
discretionary grounds.” 

; see

–42. If we were unable to discern
the basis for a court’s denial of a departure motion, remand was
the remedy. United States v. Evans, 

, 112 (3d Cir.
1995); 

.

        Again, our rule mandating an unambiguous record for
rulings on departure motions derived from the need to determine
whether we had jurisdiction to review a sentence within the
Guidelines range. After Booker, however, we have jurisdiction
to review all criminal sentences for reasonableness, even those
that result from the exercise of a district court’s discretion to set
a sentence within the Guidelines range. See 

–28. Still, the clear intent of the remedial opinion in
Booker was for the process of calculating the Guidelines to
continue operating as before. See 

–62
(“The remainder of the [Sentencing Reform] Act functions
independently.” (internal quotation marks omitted)); Gunter,


                                 

(“Courts must continue to calculate a
defendant’s Guidelines sentence precisely as they would have
before Booker. In doing so, they must formally rule on the
[departure] motions of both parties . . . .” (citations and internal
quotation marks omitted)).4

      Not for jurisdictional reasons, but rather because the
Guidelines still play an integral role in criminal sentencing, see
18 U.S.C. § 3553(a)(4); 

–65; 

–31, we require that the entirety of the
Guidelines calculation be done correctly, including rulings on
Guidelines departures.5 Put another way, district courts must

       4
        This does not mean, of course, that nothing about the
sentencing process has changed.         The significance of
Booker—what resuscitated the Guidelines from
unconstitutionality—is that once the Guidelines range has been
calculated, a sentencing court now has discretion to vary from
that range. This critical aspect of Booker is embodied in step
three of Gunter. See infra Part II.B.
       5
        For these reasons, we disagree with the Courts of
Appeals for the Seventh and Ninth Circuits, which have ruled
Guidelines departures obsolete in the wake of Booker. See
United States v. Mohamed, 

, 985–87 (9th Cir.
2006); United States v. Arnaout, 

, 1003–04 (7th
Cir. 2005).
       At least six other circuits essentially employ the same
approach to departures as we do, and one other has fashioned a
modified (but continuing) role for Guidelines departures. See

                                11
still calculate what the proper Guidelines sentencing range is,
otherwise the Guidelines cannot be considered properly at
Gunter’s third step. See 18 U.S.C. § 3553(a)(4); United States
v. Zeigler, 

, 819 (8th Cir. 2006) (Hansen, J.,
concurring) (“Generally, if the district court errs in applying the
Guidelines at step one or fails to consider a requested departure
at step two, we cannot conduct a reasonableness review because
the district court’s critical starting point, a correctly determined
advisory Guidelines range, may be flawed.”); 

–79; Hawk 

(“When a court
of appeals reviews a district court’s sentencing determination for
reasonableness, the correct guidelines range is still the critical
starting point for the imposition of a sentence.” (internal
quotation marks omitted)). The scenario is simple: error
entering this sentencing step may presage the sentence
ultimately set. Pre-Booker law regarding Guidelines departures,


United States v. Wallace, 

, 32 (1st Cir. 2006) (citing
United States v. Dixon, 

, 203–04 (1st Cir. 2006));
United States v. McBride, 

, 474–77 (6th Cir. 2006);
United States v. Hawk Wing, 

, 631 (8th Cir. 2006);
United States v. Selioutsky, 

, 118–19 (2d Cir.
2005); United States v. Crawford, 

, 1178 (11th
Cir. 2005); United States v. Villegas, 

, 361–62 (5th
Cir. 2005); see also United States v. Moreland, 

,
432–33 (4th Cir. 2006) (describing a process in which
Guidelines departures are considered only after a district court
determines that the initial Guidelines calculation does not serve
the § 3553(a) factors).

                                12
therefore, necessarily informs the sentencing process—for
district courts and for us. 

; 

.

        Jackson argues that the District Court here erred by never
ruling on his motion for a downward departure based on his
“extraordinary acceptance of responsibility.” See U.S.S.G.
§ 5K2.0; 

–15; United States v. Lieberman,

, 994–96 (3d Cir. 1992). We agree that the record
reveals no such ruling. Failure to rule on a Guidelines departure
motion indeed would seem opposed to our pre-Booker
precedent; moreover, it would seem contrary to step two in
Gunter. Our pre-Booker jurisprudence, however, also provided
that we would not remand for re-sentencing when the
Government’s arguments to the district court “concede[d] the
plausibility of the downward departure.” 

. In those cases “it seem[ed] quite likely that the district
court’s refusal to depart . . . was discretionary,” and thus we
would infer that the departure motion had been denied by the
court in recognition of its ability to depart had it chosen to do so.

; see 

.
This is still true post-Booker for purposes of Gunter’s second
step.

       The Eighth and Eleventh Circuits (at least) have ruled
that, as it was pre-Booker, courts of appeals still have no
authority to review discretionary denials of departure motions in
calculating sentencing ranges. See United States v. Morell, 429


                                 

, 1164 (8th Cir. 2005) (“The decision not to depart is
not reviewable under 18 U.S.C. § 3742.” (citing United States
v. Frokjer, 

, 875 (8th Cir. 2005), which observed
that §§ 3742(a) and (b) were not disturbed by the Supreme
Court’s ruling in Booker)); see also 

.
We express no opinion on that specific question. But because
it is our purpose to have Gunter’s first two steps track pre-
Booker practice, we shall continue not to disturb a district
court’s discretionary denial of a departure motion.6


       6
         This applies post-Booker only to the calculation of the
Guidelines range at step two, however. The process is not
complete there, as step three requires our review of the sentence
against the several § 3553(a) factors, only one of which is the
Guidelines range. See infra Part II.B.
        As for how we now review non-discretionary denials
(i.e., where a sentencing court believes that the Guidelines do
not contemplate a departure at step two) or grants of departure
motions, the issue is not presented in this case. For
completeness, though, we note that, pre-Booker, these district
court decisions had always been subject to some form of review.
See 18 U.S.C. § 3742(e) (providing for de novo review of
Guidelines departures); Koon v. United States, 

,
96–100 (1996) (providing for review of departures under an
abuse of discretion standard, prior to the amendment of
§ 3742(e) in 2003). Given what we have said about the
significance of a correct Guidelines calculation as a starting
point in the determination of a criminal sentence, these
determinations likely should continue to be reviewed so as to
ensure the proper Guidelines range calculation.

                               14
        In this case, the Government argued to the District Court
as follows:

       I don’t know if the defendant is pushing for the
       extraordinary acceptance of responsibility. I
       didn’t hear any argument on that today. But we
       would oppose it, your Honor, because the cases
       that he cites do not rise -- are a much higher level
       of acceptance of responsibility than the defendant
       making an admission at the time of this arrest[, as
       in Jackson’s case].


         We could, of course, eventually rule that some errors at
this second step can be harmless, as the sentence imposed after
a district court exercises its discretion in step three (regardless
of its decision at step two) is subject to our reasonableness
review. See, e.g., United States v. Robinson, 

, 35
(1st Cir. 2005); United States v. Long Soldier, 

,
1122 (8th Cir. 2005); cf. Williams v. United States, 

, 202 (1992) (holding, pre-Booker, that “once the court of
appeals has decided that the district court misapplied the
Guidelines, a remand is appropriate unless the reviewing court
concludes, on the record as a whole, that the error was harmless,
i.e., that the error did not affect the district court’s selection of
the sentence imposed”). But see United States v. Hillyer, 

, 351–53 (4th Cir. 2006) (remanding for resentencing
without a harmless error analysis); United States v. Fuller, 

, 562 (2d Cir. 2005) (rejecting harmless error review for
erroneous grant of Guidelines departure). As noted above, this
issue is not presented here; consequently, we do not decide it.

                                 15
Though one might contend that the Government intended its
argument to speak to the District Court’s legal ability to grant a
Guidelines departure at step two, we think not. We believe
rather that the Government was arguing that Jackson’s
acceptance of responsibility was not extraordinary enough to
deserve a departure. This was enough for the Judge to have
recognized the possibility of a departure in calculating the
Guidelines range on the basis of Jackson’s acceptance of
responsibility. Cf. 

(“Since . . . the
government apparently acknowledged at the time of
sentencing[] that a downward departure for ‘diminished
capacity’ is permissible under some circumstances, it seems
quite likely that the district court’s refusal to depart on this
ground was discretionary.”).

        Given the continued importance of a correct Guidelines
calculation (including rulings on departure motions), it may be,
as before Booker, that remand would have been appropriate
here. Even post-Booker, having to infer the District Court’s
thinking is “not our preferred course.” See 

to ensure that the record is not ambiguous in order to
facilitate appellate review). Yet pre-Booker law regarding
Guidelines departures enables us to infer meaning from the
District Court’s actions in this circumstance. Consequently,
there was no error at step two.

       B. Gunter’s Step Three: Guidelines Variances



                               16
       In Cooper, we set out the standard by which we will
review the reasonableness of a district court’s post-Booker
exercise of discretion when imposing a criminal sentence:

      The record must demonstrate the trial court gave
      meaningful consideration to the § 3553(a)
      factors.[7] The court need not discuss every


      7
       The factors set out in 18 U.S.C. § 3553(a) are:
      (1) the nature and circumstances of the offense
      and the characteristics of the defendant;
      (2) the need for the sentence imposed—
              (A) to reflect the seriousness of the
              offense, to promote respect for the law,
              and to provide just punishment for the
              offense;
              (B) to afford adequate deterrence;
              (C) to protect the public from further
              crimes of the defendant; and
              (D) to provide the defendant with needed
              educational or vocational training, medical
              care, or other correctional treatment in the
              most effective manner;
      (3) the kinds of sentences available;
      (4) the kinds of sentence and sentencing range
      established for—
              (A) the applicable category of offense
              committed by the applicable category of
              defendant as set forth in the guidelines
              ...;

                              17
argument made by a litigant if an argument is
clearly without merit. Nor must a court discuss
and make findings as to each of the § 3553(a)
factors if the record makes clear the court took the
factors into account in sentencing. Nor will we
require district judges to routinely state by rote
that they have read the Booker decision or that
they know the sentencing guidelines are now
advisory.

        On the other hand, a rote statement of the
§ 3553(a) factors should not suffice if at
sentencing either the defendant or the prosecution
properly raises “a ground of recognized legal
merit (provided it has a factual basis)” and the
court fails to address it. As the Court of Appeals
for the Seventh Circuit explained, “we have to
satisfy ourselves, before we can conclude that the
judge did not abuse his discretion, that he


(5) any pertinent policy statement . . . issued by
the Sentencing Commission . . . that . . . is in
effect on the date the defendant is sentenced[;]
(6) the need to avoid unwarranted sentence
disparities among defendants with similar records
who have been found guilty of similar conduct;
and
(7) the need to provide restitution to any victims
of the offense.

                        18
       exercised his discretion, that is, that he considered
       the factors relevant to that 

(citations omitted) (quoting United States v.
Cunningham, 

, 379 (7th Cir. 2005)). In a footnote
immediately following this discussion, we said: “On this issue,
we disagree with the decision of the Court of Appeals for the
Eleventh Circuit in United States v. Scott, [

,
1329–30 (11th Cir. 2005),] where the court held [that] a district
court’s statement that it considered both the defendant’s
arguments and the § 3553(a) factors at sentencing is by itself
sufficient for Booker purposes.” 

n.6.
Instead, the record must show a true, considered exercise of
discretion on the part of a district court, including a recognition
of, and response to, the parties’ non-frivolous arguments. See
United States v. Charles, No. 05-5326, slip op. at 8–12 (3d Cir.
Nov. 9, 2006).

       Jackson argues that the District Court here failed to
consider adequately the § 3553(a) factors and to explain how it
determined Jackson’s sentence in light of those factors and his
counsel’s arguments relating to them. He claims that had the
Court properly done so, it would have chosen to vary from the
recommended Guidelines range when imposing his sentence.
The rote recitation of the § 3553(a) factors at the outset of the
sentencing hearing, claims Jackson, does not show that the
Court truly weighed his arguments in light of those factors. This
point of error implicates Gunter’s third step.


                                19
       If the record revealed only what Jackson contends, he
would be correct. Merely reciting the § 3553(a) factors, saying
that counsel’s arguments have been considered, and then
declaring a sentence, are insufficient to withstand our
reasonableness review. See 

& n.6. In Jackson’s case,
however, the District Court in fact addressed both of the
arguments his counsel raised in support of a variance from the
Guidelines: their over-representation of his criminal history and
Jackson’s difficult childhood and resultant drug addiction.
Immediately prior to sentencing Jackson to 37 months’
imprisonment, the Judge said as to the first argument, “I
considered the following factors as significant in determining
the sentence that I will impose: your seven prior adult
convictions [and] that, in 2000, you were twice convicted of
aggravated assault, and these crimes involved violence.” As to
the second, the Court said, “I have considered the circumstances
of your upbringing, including your parents’ drug addiction, and
your financial circumstances.”

        The reference to Jackson’s “seven prior adult
convictions,” two of which “involved violence,” indicates that
the Judge did not believe Jackson’s criminal history to be over-
represented in the Guidelines calculation. Likewise, the Judge’s
reference at the moment of sentencing to Jackson’s individual
mitigating circumstances belies any contention that they were
ignored. Though the Court’s remarks were quite brief, brevity
is not error per se. What matters is that the Court specifically
addressed Jackson’s non-frivolous arguments and that it did so


                               20
in a way that allows us to review the sentence for
reasonableness.8

                        III. Conclusion

       Because we are satisfied that the District Court
“touch[ed] all the bases required,” 

, and
exhibited sufficient consideration of Jackson’s arguments to
allow our review of its actions, we affirm the sentence imposed.




       8
         Though the District Court never addressed Jackson’s
“extraordinary acceptance of responsibility” in terms of a
Guidelines variance (Gunter’s step three), neither did his
attorney address it in that context; Jackson only pressed that
argument in terms of a Guidelines departure (Gunter’s step
two). 

Part II.A. Had it been otherwise, however, the
District Court would not have been precluded from considering
Jackson’s early cooperation when deciding whether to exercise
its discretion to vary from the advisory Guidelines range. See

–49; 

(“[M]any
of the very factors that used to be grounds for a departure under
the Guidelines are now considered by the district court—with
greater latitude—under section 3553(a).”).

                               21