United States v. Henry James Jackson

Case: 12-11510 Date Filed: 01/03/2013 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
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No. 12-11510
Non-Argument Calendar
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D.C. Docket No. 4:11-cr-00053-RH-WCS-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

HENRY JAMES JACKSON,

Defendant-Appellant.

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Appeal from the United States District Court
for the Northern District of Florida
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(January 3, 2013)

Before CARNES, HULL, and JORDAN, Circuit Judges.

PER CURIAM:

Henry Jackson pleaded guilty to one count of conspiracy to distribute

cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846; one count of
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distribution of cocaine—aiding and abetting, in violation of 21 U.S.C. §§

841(a)(1), (b)(1)(C), 18 U.S.C. § 2; and one count of distribution of cocaine in

violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C). The district court applied the career

offender enhancement of United States Sentencing Guidelines § 4B1.1 (Nov.

2011) based on Jackson’s prior convictions in Florida for burglary of a dwelling

with assault or battery and possession of marijuana with intent to sell, both felonies

under Florida law. The court’s application of that enhancement together with a

reduction for acceptance of responsibility resulted in a guidelines range of 188 to

235 months imprisonment. The district court sentenced Jackson to 188 months

imprisonment, six years of supervised release, and an assessment of $300.

Jackson did not object to the district court’s application of the career

offender enhancement at his sentencing hearing but challenges it now. He

contends that the district court erred by applying the career offender enhancement

because the Florida statute under which he was convicted for possession of

marijuana with intent to sell is unconstitutional.1 Because Jackson did not make

that objection in the district court, we review only for plain error. United States v.

Johnson, 694 F.3d 1192, 1195 (11th Cir. 2012).

1
The United States District Court for the Middle District of Florida held that the Florida
statute under which Jackson was convicted is facially unconstitutional in Shelton v. Sec’y, Dep’t
of Corr. (Shelton I), 802 F. Supp. 2d 1289, 1308 (M.D. Fla. 2011). We reversed on other
grounds without deciding the constitutionality of that statute. Shelton v. Sec’y, Dep’t of Corr.
(Shelton II), 691 F.3d 1348, 1355 (11th Cir. 2012). After the district court’s decision in Shelton
I, but before our decision in Shelton II, the Florida Supreme Court held that the statute under
which Jackson was convicted is constitutional. State v. Adkins, 96 So. 3d 412 (Fla. 2012).

2
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A defendant may not collaterally attack at sentencing a state court conviction

used to apply a career offender enhancement except when that conviction was

obtained in violation of his right to counsel. United States v. Phillips, 120 F.3d

227, 231 (11th Cir. 1997) (“Collateral attacks on prior convictions are allowed in

federal sentencing proceedings in one narrow circumstance only: when the

conviction was obtained in violation of the defendant’s right to counsel.”).

Jackson does not allege that his conviction for possession of marijuana with intent

to sell was obtained in violation of his right to counsel; he contends only that the

statute under which he was convicted is unconstitutional.

Accordingly, the district court did not plainly err by applying the career

offender enhancement to Jackson’s sentence. However, the judgment entered in

this case does not list a violation of 21 U.S.C. § 846, which is necessary for the

conspiracy offense in Count 1, or a violation of 18 U.S.C. § 2, which is necessary

for aiding or abetting liability in Count 2. We remand for the sole purpose of

correcting the judgment to accurately reflect Jackson’s convictions on Count 1,

conspiracy to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

846 and Count 2, distribution of cocaine—aiding and abetting, in violation of 21

U.S.C. §§ 841(a)(1), (b)(1)(C), 18 U.S.C. § 2.

3
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Jackson’s sentence is AFFIRMED. The case is REMANDED solely for

the purpose of correcting the judgment to reflect the crimes for which Jackson was

actually convicted and sentenced.