United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4304
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Sean D. Jackson, *
*
Appellant. *
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Submitted: June 14, 2006
Filed: September 11, 2006
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Before MURPHY, MELLOY, and COLLOTON, Circuit Judges.
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COLLOTON, Circuit Judge.
Sean D. Jackson pled guilty to possession with intent to distribute heroin and
cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). He appeals his sentence
and raises a claim of ineffective assistance of trial counsel. We affirm.
In a plea agreement, the parties made non-binding recommendations to the
court concerning the application of the advisory sentencing guidelines. Based on
Jackson’s acknowledgment of responsibility for 161 grams of cocaine and 13 grams
of heroin, the parties recommended a base offense level of 20. The parties also
recommended a three-level downward adjustment for acceptance of responsibility.
See id. § 3E1.1. The plea agreement further provided that the parties “may not have
addressed or foreseen all the Guidelines provisions applicable in this case,” and that
guideline applications “not expressly addressed by the parties’ recommendations, but
which are addressed by the Presentence Report or the Court, may be presented to the
Court for consideration.”
In a presentence report, the United States Probation Office recommended that
Jackson be sentenced as a career offender, pursuant to USSG § 4B1.1(b)(C). The
district court1 adopted this recommendation and calculated Jackson’s offense level to
be 29, after a three-level adjustment for acceptance of responsibility. As a career
offender, Jackson’s criminal history category was VI, making his guideline range 151-
188 months, but the district court found that category VI overstated Jackson’s criminal
history, and departed downward to category V. The resulting guideline range was
140-175 months, and the court sentenced Jackson to 140 months’ imprisonment.
Jackson first contends that the district court erred by considering him a career
offender, because his criminal history did not include two qualifying prior convictions
as required by USSG § 4B1.1(a)(3). According to Jackson, the government did not
establish that his Missouri conviction in 1995 for unlawful use of a weapon was a
“crime of violence” pursuant to USSG § 4B1.2(a), because the recital in the
presentence report adopted by the district court impermissibly relied on facts derived
from a police report. See Shepard v. United States, 544 U.S. 13, 26 (2005); United
States v. McCall, 439 F.3d 967, 973-74 (8th Cir. 2006) (en banc).
We conclude that Jackson’s 1995 conviction in Missouri was properly counted
as a crime of violence. The statute under which Jackson was convicted states that “[a]
person commits the crime of unlawful use of weapons if he knowingly . . . [e]xhibits,
1
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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in the presence of one or more persons, any weapon readily capable of lethal use in
an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4) (Supp. 1995). The
Missouri Supreme Court has explained that implicit in this statute “is a legislative
determination that such conduct creates a substantial risk of death or physical injury
to those in whose presence such conduct occurs.” State v. Parkhurst, 845 S.W.2d 31,
36 (Mo. 1993) (en banc). Consistent with that understanding, we have held that a
violation of § 571.030.1(4), charged as an exhibition in an “angry or threatening”
manner, presents a “serious potential risk of physical injury to another,” USSG
§ 4B1.2(a)(2), and is therefore a “crime of violence” under § 4B1.2(a). United States
v. Fields, 167 F.3d 1189, 1191 (8th Cir. 1999).
Although Jackson objected to the recitation of facts derived from police reports
in paragraph 44 of the presentence report, (S. Tr. at 3), he did not object to the fact
that he was convicted of unlawful use of a firearm, as reported in paragraph 42.
Because a violation of § 571.030.1(4) constitutes a crime of violence as a categorical
matter, regardless of the specific facts underlying the conviction, see Fields, 167 F.3d
at 1191, the fact of conviction and the statutory definition of the prior offense are
sufficient to establish that Jackson’s 1995 conviction is a crime of violence under the
career offender guideline. See Shepard, 544 U.S. at 17; Taylor v. United States, 495
U.S. 575, 602 (1990). The information derived from police reports concerning the
conviction was unnecessary to a determination of the career offender issue, so the
district court’s adoption of that portion of the presentence report was not material to
its conclusion that Jackson was a career offender.
Jackson also argues that the district court violated his rights under the Sixth
Amendment by finding that his two prior felonies qualified him as a career offender.
Our court has consistently held, however, that “[o]nce the sentencing court determines
that a prior conviction exists, it is a legal question for the court whether the crime
meets the ‘crime of violence’ definition of § 4B1.2.” E.g., United States v. Camp, 410
F.3d 1042, 1047 (8th Cir. 2005) (internal quotation omitted); United States v.
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Marcussen, 403 F.3d 982, 984 (8th Cir.), cert. denied, 126 S. Ct. 457 (2005). The
district court did not err by making the determination that Jackson had a prior
conviction for a crime of violence.
Jackson also contends that the court committed plain error by not informing him
at his plea hearing that the court would not follow the offense level recommendations
in the plea agreement if Jackson qualified as a career offender. We held in United
States v. Thomas, 894 F.2d 996 (8th Cir. 1990), that a district court complied with
Federal Rule of Criminal Procedure 11(c)(1), which then required that a defendant be
advised of the “maximum possible penalty provided by law,” by advising the
defendant of the maximum statutory penalty for his offenses. Id. at 997. We said that
the district court “is not required to inform the defendant of the applicable guideline
range or the actual sentence he will receive.” Id.
Rule 11 still provides that the court must inform the defendant of “any
maximum possible penalty,” Fed. R. Crim. P. 11(b)(1)(H), but the rule also now
requires that the court inform the defendant of “the court’s obligation to apply the
Sentencing Guidelines, and the court’s discretion to depart from those guidelines
under some circumstances.” Fed. R. Crim. P. 11(b)(1)(M). Jackson argues that this
provision required the district court to advise him at the plea hearing that the court
would not follow the recommended guideline computations in the plea agreement if
the court determined that Jackson qualified as a career offender.
We conclude that the district court complied with Rule 11(b)(1)(M) and
committed no error. The court explained to Jackson in some detail that the sentencing
guidelines applied to his case, that the guidelines provided for ranges of
imprisonment, that the guidelines allowed for departures, and that the guidelines were
now advisory. (Plea Tr. at 17). Jackson said he understood, and that he had no
questions for the court. This colloquy satisfied the requirements of Rule 11(b)(1)(M).
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Rule 11(b)(1)(M) does not require the court to discuss the applicability of
specific guideline provisions. The advisory committee’s notes to the 1989 amendment
of Rule 11 concerning the addition of this subsection explain that because “it will be
impracticable, if not impossible, to know which guidelines will be relevant prior to the
formulation of a presentence report and resolution of disputed facts, the amendment
does not require the court to specify which guidelines will be important or which
grounds for departure might prove to be significant.” Fed. R. Crim. P. 11 advisory
committee’s note (discussing 1989 amendment). In this case, moreover, the plea
agreement itself provided that the guideline recommendations of the parties were not
binding on the court, and that the parties “may not have addressed or foreseen all the
Guidelines provisions applicable in this case.” For these reasons, the court was not
required to advise Jackson of the possible applicability of the career offender
guideline.
Jackson also raises a claim that his sentence is unreasonable. Having already
concluded that the district court’s guideline calculation was correct, we review the
ultimate sentence to determine whether it was reasonable in light of the statutory
factors enumerated in 18 U.S.C. § 3553(a). See United States v. Goody, 442 F.3d
1132, 1134 (8th Cir. 2006). Jackson’s 140-month sentence is presumed to be
reasonable because it was within the correctly calculated guideline range. United
States v. Lincoln, 413 F.3d 716, 717 (8th Cir.), cert. denied, 126 S. Ct. 840 (2005).
In arriving at Jackson’s sentence, the court considered Jackson’s history of
violence, his record of unsuccessful completion of probation, his drug addiction, and
the fact that his sentence was going to run concurrently with a term of imprisonment
in state court. (S. Tr. at 24). As the court considered appropriate factors, and Jackson
has not presented sufficient evidence to rebut the presumption of reasonableness, we
conclude that the sentence is not unreasonable.
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Finally, Jackson argues that his trial counsel provided ineffective assistance of
counsel, because counsel admitted that he failed to warn Jackson prior to entering his
guilty plea that he could be classified as a career offender. Ineffective assistance of
counsel claims generally are more appropriately raised in post-conviction proceedings.
United States v. Davis, 452 F.3d 991, 994 (8th Cir. 2006). This is not an instance
“where the record has been fully developed, where counsel’s ineffectiveness is readily
apparent, or where to delay consideration of the claim would lead to a plain
miscarriage of justice,” id., so we decline to address the merits of Jackson’s
ineffective-assistance claim on direct appeal.
The judgment of the district court is affirmed.
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