UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4071
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHN FITZGERALD JACKSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Harrisonburg. James C. Turk, Senior
District Judge. (5:04-cr-30015-jct)
Submitted: July 18, 2007 Decided: August 3, 2007
Before KING, SHEDD, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Helen E. Phillips, Stanardsville, Virginia, for Appellant. Bruce
A. Pagel, OFFICE OF THE UNITED STATES ATTORNEY, Charlottesville,
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Fitzgerald Jackson pleaded guilty in the Western
District of Virginia to one count of conspiracy to distribute and
possess with intent to distribute 500 grams or more of cocaine,
fifty grams or more of crack cocaine, and an unspecified quantity
of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 846 (2000).
Jackson was also indicted on one count of possession of a firearm
after having been convicted of a felony, in violation of 18 U.S.C.
§ 922(g) (2000), by the grand jury in the Western District of
Pennsylvania. This indictment was transferred to the Western
District of Virginia pursuant to Fed. R. Crim. P. 20. Jackson was
ultimately sentenced by the district court for the Western District
of Virginia to 262 months of imprisonment on the drug conspiracy
count, and a concurrent term of 180 months of imprisonment on the
felon-in-possession count. Because the district court had not
conducted a plea hearing pursuant to Fed. R. Crim. P. 11 on the
felon-in-possession charge, we affirmed Jackson’s conviction on the
drug conspiracy, but vacated the conviction on the felon-in-
possession charge, vacated the sentence, and remanded for further
proceedings. United States v. Jackson, 200 F. App’x 191 (4th Cir.
2006). On remand, Jackson pleaded guilty to the felon-in-
possession charge in a Rule 11 proceeding, and the district court
again sentenced him to 180 months of imprisonment to run
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concurrently to the previously imposed 262-month sentence on the
drug conspiracy. Jackson timely appealed.
On appeal counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967). In the Anders brief, counsel
states that there are no meritorious issues for appeal but suggests
that the district court erred in applying the Guidelines,1 and
particularly the career offender provisions, in a mandatory fashion
in sentencing Jackson. In his pro se supplemental brief, Jackson
raises three allegations of error in the determination of his
sentence. In a second supplemental brief, Jackson asserts that a
pending forfeiture proceeding violates the plea agreement. We
affirm.
Because Jackson did not object to the presentence report
(PSR) that was adopted by the district court, this court’s review
of the district court’s sentence is for plain error. United
States v. Olano, 507 U.S. 725, 732 (1993); United States v. Hughes,
401 F.3d 540, 547 (4th Cir. 2005). Under the plain error standard,
Jackson must show: (1) there was error; (2) the error was plain;
and (3) the error affected his substantial rights. Olano, 507 U.S.
at 732-34. Even when these conditions are satisfied, this court
may exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public reputation
1
U.S. Sentencing Guidelines Manual (USSG) (2002).
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of judicial proceedings.” Id. at 736 (internal quotation marks
omitted).
Jackson’s sentence on the drug conspiracy count was
driven by his designation as a career offender. Neither counsel
nor Jackson assert any factual challenge to this determination, but
argue that application of the career offender enhancement violated
United States v. Booker, 543 U.S. 220 (2005). Counsel asserts that
the district court erred in applying the career offender
enhancement and the Guidelines generally in a mandatory fashion
without considering Jackson’s history and other personal
characteristics. In United States v. White, 405 F.3d 208 (4th
Cir.), cert. denied, 126 S. Ct. 668 (2005), this court determined
that, “even in the absence of a Sixth Amendment violation, the
imposition of a sentence under the former mandatory guidelines
regime rather than under the advisory regime outlined in Booker is
error” that is plain. Id. at 216-17. The court also concluded
that, to satisfy the third prong of the plain error test, an
appellant must demonstrate actual prejudice. Id. at 217-24. White
could not satisfy this requirement, however, because he could not
establish that the application of the Guidelines as mandatory had
an effect on “‘the district court’s selection of the sentence
imposed.’” Id. at 223 (quoting Williams v. United States, 503 U.S.
193, 203 (1992)).
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In this case, Jackson asserts that the district court’s
comment at his first sentencing that the court was going to give
him a bit of a break by sentencing him at the bottom of the
Guidelines range is an indication that the court would have imposed
a lesser sentence under an advisory system. This argument does not
entitle Jackson to any relief. The record does not reveal any
nonspeculative basis to indicate that the district court would have
imposed a lesser sentence by treating the Guidelines as advisory,
and Jackson cannot demonstrate that any error in sentencing him
pursuant to a mandatory Guidelines scheme affected his substantial
rights. The district court’s comment at the first sentencing
hearing that he was going to give Jackson a break by sentencing him
at the bottom of the Guidelines range does not suggest that the
court would have varied below that range, but rather reflects the
court’s exercise of discretion within that range. We conclude that
this argument is without merit.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We have
considered the arguments asserted in Jackson’s pro se briefs and
conclude that he is not entitled to relief.2 We therefore affirm
2
We decline to consider Jackson’s assertion in his second
supplemental brief that the forfeiture proceeding violates the plea
agreement. This proceeding remains pending in the district court,
and Jackson may assert this argument in that court. When the
district court issues a final judgment, Jackson may appeal from
that judgment.
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Jackson’s conviction and sentence. We deny counsel’s motion to
withdraw from representation. This court requires that counsel
inform Jackson, in writing, of the right to petition the Supreme
Court of the United States for further review. If Jackson requests
that a petition be filed, but counsel believes that such a petition
would be frivolous, then counsel may move in this court for leave
to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Jackson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials before
the court and argument would not aid the decisional process.
AFFIRMED
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