REVISED October 30, 2008
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 06-11241 FILED
Summary Calendar October 21, 2008
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee
v.
ZODERICK DROSSON JACKSON, also known as Z
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:05-CR-76-1
Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Zoderick Drosson Jackson pleaded guilty to conspiracy to possess with the
intent to distribute 50 grams or more of a substance or mixture containing a
detectable amount of cocaine base. The district court imposed a below-guideline
sentence of 25 years in prison.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-11241
Jackson contends that because the record clearly reflects that the district
court believed that it had no discretion to consider his alleged cooperation in the
absence of a U.S.S.G. § 5K1.1 motion, the district court effectively rendered the
Guidelines mandatory, in violation of United States v. Booker, 543 U.S. 220
(2005). He also argues that the district court violated Booker because it
sentenced him in a regime that limited its ability to vary from the Guidelines on
the basis of sentencing disparities between codefendants.
When reviewing the reasonableness of a sentence, we must first ensure
that the district court committed no significant procedural error, such as failing
to calculate or properly calculate the Guidelines range, treating the Guidelines
as mandatory, failing to consider the 18 U.S.C. § 3553(a) sentencing factors,
basing a sentence on clearly erroneous facts, or failing to adequately explain the
chosen sentence. Gall v. United States, 128 S. Ct. 586, 597 (2007). If the
sentence is procedurally sound, we must then consider the substantive
reasonableness of the sentence under an abuse-of-discretion standard. Id. A
district court’s interpretation or application of the Guidelines is reviewed de
novo, and its factual findings are reviewed for clear error. United States v.
Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
Contrary to Jackson’s assertions, the record reflects that the district court
considered the Guidelines to be advisory and considered Jackson’s cooperation
with the Government and the sentences of his codefendants in determining an
appropriate sentence. Thus, there were no Booker violations.
Jackson avers that the district court clearly erred in finding that he
possessed a firearm for purposes of U.S.S.G. § 2D1.1. Given that the firearms
were found in close proximity to the drugs and drug paraphernalia, it was not
clearly improbable that the firearms were connected with the offense. See
United States v. Hooten, 942 F.2d 878, 882 (5th Cir. 1991).
Jackson contends that the district court erred in including in the drug
quantity calculation the 80.4 grams of crack found in his refrigerator. Jackson
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No. 06-11241
avers that there was no finding by the district court that he was engaged in a
conspiracy or jointly undertaken distribution activity with Thomas Gus Wright,
who he contended was the owner of the drugs, or that he (Jackson) possessed the
drugs in pursuit of the goals of the conspiracy.
Because the district court found that the 80.4 grams of crack belonged to
Jackson, the district court held him accountable for the drug with which he was
directly involved and not as drugs attributable to him through the conspiracy.
Thus, the district court was not required to find that Jackson was engaged in a
conspiracy with Wright or that his possession was in furtherance of a jointly
undertaken criminal activity. See United States v. Carreon, 11 F.3d 1225, 1230
(5th Cir. 1994). The district court’s drug quantity attribution was not clearly
erroneous. United States v. Davis, 76 F.3d 82, 84 (5th Cir. 1996).
Jackson argues that the district court clearly erred by applying the three-
level enhancement for his role in the offense pursuant to U.S.S.G. § 3B1.1(b).
The record contains sufficient reliable evidence to support the district court’s
finding that Jackson was a manager or supervisor of a criminal activity that
involved five or more participants. See § 3B1.1(b); United States v. Fullword,
342 F.3d 409, 415 (5th Cir. 2003).
We also reject Jackson’s argument that the preponderance of the evidence
standard employed by the district court in resolving disputed sentencing issues
violated his Sixth Amendment rights. See United States v. Mares, 402 F.3d 511,
518-19 (5th Cir. 2005).
Jackson contends that his below-guideline sentence is unreasonable
because it fails to properly account for the § 3553(a) factors. The record shows
that the district court considered the § 3553(a) factors. Jackson’s appellate
argument is, in essence, that this court should reweigh the § 3553(a) factors.
That an appellate court “might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 128 S. Ct. at 597.
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No. 06-11241
We acknowledge that during the pendency of Jackson’s appeal, the
Sentencing Commission enacted Amendment 715 to § 2D1.1, revising the
manner in which combined offense levels are determined in cases involving
cocaine base and one or more other controlled substances. U.S. SENTENCING
GUIDELINES MANUAL, app. C (2008). Our holding in the present case does not
preclude future consideration of this issue in a motion to the district court
pursuant to 18 U.S.C. § 3582(c).
AFFIRMED.
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