In the
United States Court of Appeals
For the Seventh Circuit
No. 15‐3693
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
DOUGLAS D. JACKSON,
Defendant‐Appellant.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:15‐CR‐6 — Robert L. Miller, Jr., Judge.
ARGUED OCTOBER 28, 2016 — DECIDED AUGUST 4, 2017
Before RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Douglas Jackson appeals following
a jury trial at which he was convicted of three counts of
transporting a minor in interstate commerce with the intent
that she engage in illegal sexual activity, see 18 U.S.C. § 2423(a),
three counts of sex trafficking of a minor, see 18 U.S.C.
§ 1591(a), and one count of possessing a firearm in furtherance
2 No. 15‐3693
of a crime of violence (sex trafficking of a minor), see 18 U.S.C.
§ 924(c). The district court sentenced Jackson to 295 months’
imprisonment. He appeals, arguing that his conviction under
§ 924(c) is invalid because the portion of that statute applicable
to his crime is unconstitutionally vague. He also challenges the
district court’s conclusion under the United States Sentencing
Guidelines that he was a leader or supervisor of the offense, see
U.S.S.G. § 3B1.1(1)(c), and that he obstructed justice when he
testified on his own behalf, see U.S.S.G. § 3C1.1. For the reasons
discussed below, we vacate Jackson’s conviction under § 924(c)
and vacate and remand for resentencing.
I.
Jackson met the minor victim, J.T., at a party in May of
2014, when J.T. was fifteen years old and Jackson was twenty‐
five. J.T., who was just finishing the 9th grade, told Jackson her
actual age, but he claimed to be only seventeen. He asked her
if she was interested in making some money, and then pro‐
ceeded to buy her clothes and pay to have her hair and nails
done.
Within several weeks, on June 6, 2014, Jackson drove the
two of them in a rented car to Atlanta, Georgia, where J.T. had
some family, including her father and siblings. Jackson paid for
the two of them to stay for two nights in a hotel. He also used
his cell phone and a prepaid credit card to post an ad in the
Atlanta section of the classified advertising website “Backpage‐
.com,” which prior to January 2017 contained an adult section
No. 15‐3693 3
advertising different categories of sex work.1 The title of the ad
said, “Sexy star beautiful mixed puerto rican in town looking
for a great time.” The e‐mail address connected to the ad was
Jackson’s e‐mail, and the listed contact number was for a
prepaid flip phone that Jackson had purchased. Jackson and
J.T. used the prepaid cell phone to text customers, who were
charged $150 for thirty minutes with J.T. or $200 for an hour.
On June 8th, Jackson and J.T. moved on to Louisville,
Kentucky, basically repeating what they had done in Atlanta.
The Backpage.com ad from Atlanta was reposted with only
minor differences, and Jackson again paid for motels and food.
While in Louisville, J.T. stayed with a customer beyond the
allotted time frame, and Jackson began texting her. In response
to Jackson’s query, “Wtf is takin so long” J.T. texted back that
the customer “spent another 15 mins.” The call log reflected
that Jackson attempted to call J.T. on the prepaid phone
approximately fifteen minutes later, after which the following
text exchange took place:
J.T.: I’m tryin to make him cum
Jackson: Bitch its a time limit not that he got to
go now or I’m comin in
1
See Amicus Curiae Brief of The National Center for Missing and Exploited
Children at 2–7, J.S., S.L., & L.C. v. Village Voice Media Holdings, L.L.C.,
184 Wash. 2d 95 (Wash. 2015) (asserting that Backpage enables and
disseminates child sex trafficking content and that its ads facilitate sex with
children).
4 No. 15‐3693
J.T.: Alright
Shortly after that encounter, Jackson’s cell phone was used
to repost the Backpage.com ad.
After their stay in Louiville, Jackson and J.T. returned
briefly to South Bend, Indiana. Next they headed to Grand
Rapids, Michigan with J.T.’s brother. After reserving a hotel in
Grand Rapids, Jackson reposted the original Backpage.com ad,
and J.T. responded to a call shortly before midnight at a local
Super 8 motel. She returned to Jackson’s car shortly after going
into the hotel room and reported that the customer had been
acting weird. While she was sitting with Jackson in the car, two
police officers conducting a routine patrol approached. One of
the officers testified that they frequently patrolled that Super
8 parking lot because it was often the site of drug and
prostitution activity. The officers saw J.T.’s bare leg propped
up in the driver’s side of the car, and as they got closer to
investigate, J.T. hastily exited the vehicle with her shorts
unbuttoned and her underwear exposed. Jackson also sat up
and got out, reaching toward the floorboard as he did so. One
of the police officers shined his flashlight onto the car’s
floorboard, revealing a loaded Hi‐Point .380 firearm, for which
Jackson had an Indiana permit.
Jackson was arrested and J.T. was taken into police custody.
Under initial questioning, J.T. maintained that she was simply
joyriding and hanging out with Jackson and that she had never
had sex with him or anyone else for money. When faced with
the prospect of going into foster care, however, she admitted
that she was in Grand Rapids for prostitution.
No. 15‐3693 5
Based on alleged criminal conduct with J.T. on June 6, 2014,
June 8, 2014, and June 13–14, 2014, Jackson was charged first by
complaint in December 2014 with two counts of sex trafficking
of a minor, see 18 U.S.C. § 1591(a). Then in February 2015,
Jackson was ultimately indicted on three counts of knowingly
transporting a minor in interstate commerce to engage in
criminal sexual activity, see 18 U.S.C. § 2423(a); three counts of
recruiting, enticing, harboring, transporting, providing,
obtaining, and maintaining a minor in interstate commerce in
order to engage in a commercial sex act, see 18 U.S.C. § 1591(a),
and one count of possession of a firearm during a crime of
violence, namely, sex trafficking, see 18 U.S.C. § 924(c).
At trial, both J.T. and Jackson testified, as well as several
government witnesses involved in investigating the case.
Contrary to her initial insistence to officers that she was not
engaging in prostitution, J.T. testified at trial that prostitution
was the intended purpose of the trips to Atlanta, Louisville,
and Grand Rapids, and that she engaged in commercial sex
acts in each city after Jackson posted the Backpage.com ads.
J.T. also explained that she and Jackson split the proceeds
evenly between them.
Jackson also testified, claiming that J.T. had told him when
they met that she was nineteen and that he had truthfully told
her that he was twenty‐five. He also maintained that their trips
were simply to travel and visit family and friends, and denied
posting any advertisements on Backpage.com. Although he
admitted knowing about the ads on Backpage.com, he claimed
that J.T. posted them herself using his phone. He asserted that
he assumed when she responded to the ads she was simply
giving men massages or talking with them. He also denied
6 No. 15‐3693
knowing that there were condoms in his car and insisted that
he had not received any money as a result of J.T.’s responses to
the Backpage.com postings.
After being confronted with the text message exchange
from Louisville, Jackson conceded knowing that J.T. had
engaged in a sex act that time. But he insisted that he was upset
about it and believed it to be a one‐time occurrence.
The jury convicted Jackson on all counts. After trial, he filed
a motion under Federal Rule of Criminal Procedure 29 seeking
a judgment of acquittal on the charge under 18 U.S.C. § 924(c)
of using a firearm in furtherance of a crime of violence, “to wit:
sex trafficking of a minor.” Section 924(c)(3) defines a “crime
of violence” as any felony that (A) “has as an element the use,
attempted use, or threatened use of physical force against the
person or property of another“ (the “elements clause”) or (B)
“by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense” (the “residual clause” or
“risk‐of‐force clause”), id. at § 924(c)(3)(A), (B). Specifically,
Jackson argued that § 924(c)(3)(B) was subject to the same
deficiencies that had led the Supreme Court in Johnson v.
United States, —U.S.—, 135 S. Ct. 2551 (2015) to invalidate as
unconstitutionally vague the similarly worded “residual
clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B).
The district court denied Jackson’s motion after concluding
that § 924(c)(3)(B)’s definition of “crime of violence” was
distinguishable in several critical respects from the ACCA
residual clause. In Johnson, the Court considered the provision
No. 15‐3693 7
in the ACCA mandating more severe penalties for a felon in
possession of a firearm with three or more previous convic‐
tions of a “violent felony,” defined in 18 U.S.C.
§ 924(e)(2)(B)(iii) as a felony that “is burglary, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury
to another.” Johnson concluded the residual clause was uncon‐
stitutionally vague first because of the “grave uncertainty” in
determining the risk posed by the generic “ordinary case” of a
given crime and second, because the clause itself left uncer‐
tainty about how much risk was required for a crime to qualify
as a violent felony. Johnson, 135 S. Ct. at 2257–58. The Court
also noted its own repeated failures to “craft a principled and
objective standard out of the residual clause” demonstrated its
“hopeless indeterminancy.” Id. at 2258.
The district court found Johnson’s rationale inapplicable to
§ 924(c)(3)(B) for several distinct reasons. First, the district
court noted that the Court in Johnson had been particularly
troubled by the list of enumerated crimes in the ACCA, which
added to the confusion in assessing what risk of injury was
required given the wide disparity for potential harm between
crimes on the list such as arson and extortion. See Johnson, 135
S. Ct. at 2558, 2559, 2561. The district court reasoned that the
lack of such a confusing enumerated list in § 924(c)(3)(B) made
the task of assessing whether a crime carried a substantial risk
that physical force would be used much less difficult.
The district court also found the language around the risk
itself much narrower in § 924(c) than in the ACCA, which
refers broadly to the unqualified risk of “physical injury to
another” as opposed to the more specific risk in § 924(c) that
8 No. 15‐3693
“physical force” would be used “in the course of committing the
offense” (emphasis added)—a scope temporally limited to
specific conduct by the offender at the time of the offense. See
Johnson, 135 S. Ct. at 2259 (noting that the ACCA gives no
indication of “how remote is too remote”). And unlike the
ACCA’s residual clause, which the Court noted had caused
multiple splits in the lower federal courts and defied the
Court’s own “repeated attempts … to craft a principled and
objective standard,” id. at 2258, § 924(c)(3)(B) has not proven
difficult for courts to consistently apply. The district court
acknowledged that the Ninth Circuit in Dimaya v. Lynch, 803
F.3d 1110 (9th Cir. 2015), cert granted, 137 S. Ct. 31 (2016), had
extended Johnson’s rationale to the residual clause of 18 U.S.C.
§ 16(b), which is worded identically to § 924(c)(3)(B), but it
found Dimaya neither binding nor persuasive. The court thus
denied Jackson’s motion for judgment of acquittal.
Over Jackson’s objections at sentencing, the district court
agreed with the recommendation in the presentence report that
Jackson’s offense level should be increased by two levels
because he was a manager or supervisor in the offense, see
U.S.S.G. § 3B1.1(c), and another two levels for obstructing
justice because his testimony claiming ignorance of J.T.’s
prostitution was false, see U.S.S.G. § 3C1.1. These adjustments,
taken together with the sex trafficking counts, produced an
advisory guideline range of 235 to 293 months’ imprisonment,
plus a mandatory 60‐month sentence to run consecutively on
the Section 924(c) count. The district court sentenced Jackson
to 295 months’ imprisonment, the minimum sentence under
the advisory guideline range.
No. 15‐3693 9
II.
On appeal, Jackson renews his contention that his convic‐
tion for possessing a firearm during a crime of violence, see 18
U.S.C. § 924(c)—i.e., sex trafficking of a minor, see 18 U.S.C.
§ 1591(a), must be vacated because § 924(c)(3)(B) is unconstitu‐
tionally vague. The Fifth Amendment’s proscription against
depriving an individual of life, liberty, or property without due
process of law supplies the rationale for the void‐for‐vague‐
ness doctrine. Under it, the government may not impose
sanctions “under a criminal law so vague that it fails to give
ordinary people fair notice of the conduct it punishes, or so
standardless that it invites arbitrary enforcement.” Welch v.
United States, — U.S.—, 136 S. Ct. 1257, 1262 (2016) (quoting
Johnson, 135 S. Ct. at 2556).
In determining whether an offense is a “crime of violence”
under § 924(c), we employ the categorical approach, asking
whether the minimum criminal conduct necessary for convic‐
tion under the applicable statute—as opposed to the specific
underlying conduct at issue—amounts to a crime of violence
as defined in subsection (A) or (B). See, e.g., Taylor v. United
States, 495 U.S. 575, 600 (1990); see also Mathis v. United States,
—U.S.—, 136 S. Ct. 2243, 2248 (2016) (outlining categorical
approach as applied to prior conviction under ACCA).
Here the government concedes that under the categorical
approach, Jackson’s underlying conviction for sex trafficking
of a minor, see 18 U.S.C. § 1591(a), does not “have as an
element” the use or attempted use of force, and therefore may
not be upheld under § 924(c)(3)(A)—the elements clause.
Specifically, sex trafficking of a minor may be proven without
10 No. 15‐3693
a finding that the defendant used or threatened his victim with
force—for instance by luring an individual into sex trafficking
by fraud, money, clothing, or other non‐violent enticements.
See United States v. McMillian, 777 F.3d 444, 447 (7th Cir.
2015)(minors enticed into prostitution primarily “by false
promises of love and money”); see also United States v. Booker,
No. 11‐1241, 447 Fed. Appx. 726 (7th Cir. Nov. 16, 2011) (victim
was already a sex worker when defendant recruited her).
Given this, Jackson’s conviction stands or falls under the
residual or risk‐of‐force clause, which, recall, applies when the
underlying crime “by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.” Jackson’s task
of persuading us on appeal that § 924(c)(3)(B) is unconstitu‐
tional in the wake of Johnson is now a fait accompli: as outlined
below, in the time since the district court rejected Jackson’s
argument, we have extended Johnson to conclude that
§ 924(c)(3)(B) is unconstitutionally vague. See United States v.
Cardena, 842 F.3d 959, 996 (7th Cir. 2016) (holding that “the
residual clause in 18 U.S.C. § 924(c)(3)(B) is … unconstitutio‐
nally vague”).
In the wake of Johnson (and after the district court rejected
Jackson’s constitutional challenge to § 924(c)), we took up a
challenge to the similarly worded residual clause in 18 U.S.C.
§ 16(b). See United States v. Vivas‐Ceja, 808 F.3d 719 (2015),
(rehear’g en banc denied March 14, 2016). In Vivas‐Ceja, the
defendant’s maximum sentence for illegally reentering the
United States, see 8 U.S.C. § 1326, was increased because he had
a prior conviction for an “aggravated felony,” defined as
relevant here as a “crime of violence” under § 16(b), which is
No. 15‐3693 11
worded identically to § 924(c)(3)(B) to include any felony
offense that “by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.” 18 U.S.C.
§ 16(b). Deeming the residual clause in § 16(b) “materially
indistinguishable” from the ACCA’s residual clause, we
concluded in United States v. Vivas‐Ceja that the reasoning of
Johnson likewise rendered the residual clause of § 16(b)
unconstitutionally vague. 808 F.3d at 720. In so doing, we
noted the Ninth Circuit’s identical conclusion about § 16(b) (in
the civil removal context). See Vivas‐Ceja, 808 F.3d at 722 (citing
Dimaya 803 F.3d at 1111 (holding that § 16(b) “suffers from the
same indeterminancy” as the ACCA’s residual clause)). In
Vivas‐Ceja, we also considered and rejected the potential
grounds for distinguishing the residual clause in § 16(b) from
the ACCA. Specifically, we rejected the government’s claim
that the confusion created by the ACCA’s enumerated list of
crimes as well as the difficulty lower courts and the Supreme
Court itself had encountered applying the ACCA were critical
factors to the Court’s determination that the ACCA was
unconstitutionally vague. See Vivas‐Ceja, 808 F.3d at 723
(concluding that neither the confusing list of enumerated
crimes in the ACCA nor the “pervasive disagreement” it
created among lower courts were “necessary condition[s]” to
the Court’s vagueness determination in Johnson).
Although § 16(b) and § 924(c)(3)(B) are worded identically,
the government maintains in its brief that the latter is distin‐
guishable from § 16(b), which applies as a recidivist statute to
prior convictions as opposed to a contemporaneous underlying
federal crime. It also argues that Vivas‐Ceja is wrong because
12 No. 15‐3693
§ 16(b) (and, by extension § 924(c)(3)(B)) are materially
distinguishable from the residual clause of the ACCA for
largely the same reasons cited by the district court.
As for the government’s suggestion that we reconsider our
holding in Vivas‐Ceja, “[w]e require a compelling reason to
overturn circuit precedent.” Santos v. United States, 461 F.3d
886, 891 (7th Cir. 2006) (quoting McClain v. Retail Food Emp’rs
Joint Pension Plan, 413 F.3d 582, 586 (7th Cir. 2005)). Stare
decisis principles dictate that we give our prior decisions
“considerable weight” unless and until other developments
such as a decision of a higher court or a statutory overruling
undermine them. See id.; Bethesda Lutheran Homes & Servs., Inc.
v. Born, 238 F.3d 853, 858–59 (7th Cir. 2001) (“For the sake of
law’s stability, a court will not reexamine a recent decision …
unless given a compelling reason to do so.”). In the case of
Vivas‐Ceja, such a development is not entirely unlikely. Before
oral argument, the Supreme Court granted certiorari in Dimaya
to consider the continued viability of § 16(b) in the wake of
Johnson. 137 S. Ct. 31 (U.S. Sept. 29, 2016) (granting cert in
Lynch v. Dimaya, 803 F.3d 1110 (9th Cir. 2015)). Given the
obvious parallels between § 16(b) and § 924(c)(3)(B), if the
Court overruled Dimaya, our holding in Vivas‐Ceja would
likewise be undermined and its rationale inapplicable to
§ 924(c)(3)(B). Given that uncertainty, we held off issuing our
opinion in anticipation of the Supreme Court’s ruling in
Dimaya. Recently, however, the Court restored Dimaya to the
calendar for reargument in the fall term. See Supreme Court of
the United States docket for Sessions v. Dimaya, No. 15‐1498,
available at https://www.supremecourt.gov/search.aspx?
filename=/docketfiles/15‐1498.htm (last visited July 27, 2017).
No. 15‐3693 13
And in the interim, we concluded in Cardena that our holding
in Vivas‐Ceja compelled the conclusion that section 924(c) too
was unconstitutionally vague. Cardena, 842 F.3d at 996.
Although Cardena reached its conclusion with little discus‐
sion, as discussed above, we had in Vivas‐Ceja already rejected
the arguments other courts have found persuasive in conclud‐
ing that Johnson’s rationale does not extend to either § 16(b) or
§ 924(c)(3)(B).
Given our recent holdings in Cardena and Vivas‐Ceja, we
reject the government’s argument that the residual clause of
§ 924(c)(3) is sufficiently distinguishable from either the
ACCA’s residual clause held unconstitutional in Johnson or the
identically worded clause in § 16(b). In so doing, we recognize
that with the exception of the Ninth Circuit in Dimaya, most
circuits to have considered the issue since have declined to
extend Johnson’s holding to invalidate either § 16(b) or
§ 924(c)(3)(B). For instance, the Second, Sixth, Eighth, and
Eleventh Circuits have all concluded that the “crime of
violence” defined in § 924(c)(3)(B) is not unconstitutionally
vague because the text and application are sufficiently distin‐
guishable from the “violent felony” defined in § § 924(e)(2)(B)
of the ACCA. See Ovalles v. United States, 861 F.3d 1257 (11th
Cir. 2017) (rejecting United States v. Cardena, collecting and
analyzing cases and also noting that because ACCA’s § 924(c)
applies as a recidivist sentencing enhancement it has a “very
different function” than § 924(c)(3)(B) and its offense of use of
a firearm during commission of a contemporaneous underly‐
ing crime); United States v. Prickett, 839 F.3d 697, 699–700 (8th
Cir. 2016) (stressing that “the ACCA residual clause is linked
to a confusing set of examples that plagued the Supreme Court
14 No. 15‐3693
in coming up with a coherent way to apply the clause, whereas
there is no such weakness in § 924(c)(3)(B)”); United States v.
Hill, 832 F.3d 135, 145–49 (2d Cir. 2016) (relying on fact that
language in § 924(c)(3)(B) is narrower than the ACCA, is not
linked to the confusing list of examples in the ACCA, and is
temporally limited to a contemporaneous federal predicate
crime); United States v. Taylor, 814 F.3d 340, 376–79 (6th Cir.
2016) (cataloguing “significant differences making the defini‐
tion of ‘crime of violence’ in § 924(c)(3)(B) narrower than the
definition of ‘violent felony’ in the ACCA residual clause”). We
acknowledge that the case for distinguishing § 924(c)(3)(B) is
not altogether unconvincing, but conclude that, unless we hear
differently from the Supreme Court in Dimaya, stare decisis
and our recent precedents compel the conclusion that
§ 924(c)(3)(B) is unconstitutionally vague. See Joy v. Penn‐
Harris‐Madison Sch. Corp., 212 F.3d 1052, 1066–67 (7th Cir. 2000)
(Under doctrine of stare decisis, panel is bound by recent
precedent with substantially similar facts when governing
Supreme Court precedent has yet to address the matter).
Accordingly, Jackson’s § 924(c) conviction for possessing a
firearm in relation to a crime of violence must be vacated.
Jackson also challenges the district court’s sentencing
findings. We evaluate the district court’s factual findings under
the Guidelines for clear error and its ultimate legal conclusions
de novo. E.g., United States v. Cherry, 855 F.3d 813, 815–16 (7th
Cir. 2017).
The district court added two levels to Jackson’s guidelines
range under U.S.S.G. § 3B1.1(c). As relevant here, that section
applies to any defendant who is “an organizer, leader, man‐
ager, or supervisor in any criminal activity.” Here Jackson’s
No. 15‐3693 15
objection to § 3B1.1 in the district court was limited to his
frivolous claim that he neither supervised nor managed J.T. On
appeal, however, he argues that § 3B1.1 is inapplicable because
it applies to offenses committed by multiple participants and
as a victim, J.T. could not be a “participant” in her own sex
trafficking. Raised as it is for the first time on appeal, we
review this argument only for plain error. Jackson must thus
show (1) an error; (2) that was plain; (3) that affected his
“substantial rights”; and (4) the court should exercise discre‐
tion to correct the error because it seriously affected the
fairness or integrity of the judicial proceedings. See, e.g., United
States v. Armand, 856 F.3d 1142, 1144 (7th Cir. 2017) (citation
omitted).
The application notes to § 3B1.1(c) explain that a defendant
must organize or supervise at least “one or more other partici‐
pants” to qualify for the adjustment, see U.S.S.G. § 3B1.1(c) cmt.
n. 2. Under the guidelines, a participant is defined as someone
“criminally responsible for the commission of the offense,”
whether or not convicted.” Id. cmt. n.1. The application notes
further clarify that a “person who is not criminally responsible
for the commission of the offense (e.g., an undercover law
enforcement officer) is not a participant.” Id.
This clarification makes clear that the district court erred by
applying § 3B1.1 to Jackson. Although it is apparent that he
supervised and managed J.T.’s prostitution, Jackson maintains,
and the government concedes, that a minor victim cannot be
considered a “participant” in her own trafficking. In United
States v. Jarrett, the Eighth Circuit considered a scenario
indistinguishable from Jackson’s and concluded that the
district court erred by applying § 3B1.1 because sex trafficking
16 No. 15‐3693
victims cannot be both victims and participants in their own
trafficking, 956 F.2d 864 (8th Cir. 1992). As the court in Jarrett
observed, “the fact that [victims] were transported does not
make them participants. Neither does the fact that their
conduct was a violation of some other law, for example, a state
law against prostitution.” Id. at 868. Other courts to consider
the issue have approved, at least in dicta, of Jarrett’s holding,
concluding that a victim may only be considered a “partici‐
pant” if she coerces or transports or otherwise oversees other
victims. See United States v. Smith, 719 F.3d 1120, 1126 (9th Cir.
2013); United States v. Scott, 529 F.3d 1290, 1303 (10th Cir. 2008)
(applying § 3B1.1 when victim had “done far more than
undertake her own prostitution activities under [defendant’s]
supervision”); see also United States v. Britton, No. 11‐2083, 567
Fed. Appx. 158, 161 (3d Cir. May 29, 2014).
The government concedes that as a victim of Jackson’s sex
trafficking, J.T. cannot be considered a “participant” such that
the manager or supervisor adjustment under § 3B1.1 is
applicable. We too conclude that the district court erred in
applying § 3B1.1. Moreover, the error was plain and affected
Jackson’s substantial rights. The two level increase in Jackson’s
guideline range affected his sentence, and the government
concedes that nothing in the record reveals whether the district
court, which imposed the minimum sentence available under
Jackson’s incorrectly calculated guidelines’ range, would
impose the same sentence without the adjustment under
§ 3B1.1.
Finally, Jackson challenges the district court’s conclusion
that his trial testimony amounted to obstruction of justice
under § 3C1.1. That section applies when a defendant perjures
No. 15‐3693 17
himself at trial. See United States v. Dunnigan, 507 U.S. 87, 96
(1993). Although a bare denial of guilt is insufficient to sustain
the obstruction of justice adjustment, it is appropriate when a
defendant takes the stand and tells the jury a false story on
material matters. United States v. Stenson, 741 F.3d 827, 831 (7th
Cir. 2014).
Jackson attempts to characterize his trial testimony as
merely a general denial of guilt, but we have no difficulty
concluding that the district court’s careful factual findings to
the contrary were not clearly erroneous. Id. (Noting that we
review factual findings supporting application of § 3C1.1 for
clear error). The district court noted that Jackson testified
falsely about a “central issue” in the case by denying that the
road trips to Atlanta, Louisville and Grand Rapids were to
allow J.T. to engage in prostitution. It also characterized
Jackson’s insistence that he had no knowledge about J.T.’s
provision of sexual services as false and material. Finally, the
district court disbelieved Jackson’s claim that he did not place
any of the Backpage.com ads, finding J.T.’s contrary testimony
that Jackson did place the ads more credible. None of these
factual findings were clearly erroneous, and in light of these
findings the district court certainly did not err by concluding
that Jackson obstructed justice under § 3C1.1.
III.
In light of our holding that § 924(c)(3)(B) is unconstitutiona‐
lly vague, we VACATE Jackson’s conviction under § 924(c) for
possessing a firearm in furtherance of a crime of violence. We
also VACATE and REMAND for resentencing without the
organizer or supervisor adjustment under § 3B1.1.