UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60070
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHN D. JACKSON, JR.,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(1:93-CR-60-BrR)
_________________________________________________________________
March 7, 1996
Before BARKSDALE, DeMOSS, and PARKER, Circuit Judges.
PER CURIAM:*
John D. Jackson, Jr., challenges his sentence on two grounds,
both of which are being raised for the first time on appeal. Not
finding plain error, we AFFIRM.
I.
In November 1993, Jackson was indicted for conspiracy to
possess with intent to distribute cocaine base and possession with
intent to distribute cocaine base. He pleaded guilty to the
conspiracy count in August 1994. The plea agreement provided,
inter alia, that the Government would recommend that the court
impose a sentence within the bottom half of the applicable
*
Pursuant to Local Rule 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.
guideline range, inform it of the extent of Jackson's cooperation,
and request that it consider that cooperation in determining his
sentence.1 The agreement provided further that the Government
reserved the right to move for downward departure pursuant to
U.S.S.G. § 5K1.1. After conducting a hearing in accordance with
FED. R. CRIM. P. 11, the district court accepted Jackson's plea.
Prior to sentencing, and represented by new counsel, Jackson
moved to withdraw his plea or, in the alternative, for specific
performance. He asserted in the motion that the Government had
informed him that it intended to recommend a downward departure to
120 months imprisonment, in violation of its alleged promise in the
plea agreement to recommend that he receive a maximum sentence of
10 years and "then by application of the guidelines ... be given
credit for certain downward departures from the 120 months,
depending upon his cooperation, acceptance of responsibility,
relevant conduct, criminal history background, and other matters
under said guidelines".
The district court conducted an evidentiary hearing on the
motion immediately preceding sentencing. It asked Jackson whether
he would prefer to withdraw his guilty plea or to receive a
1
The agreement provided also that "the maximum possible penalty
that may be imposed is 10 years mandatory minimum imprisonment and
a $4,000,000 fine and a term of supervised release of 5 years
minimum". At the sentencing hearing, the district court indicated
that this statement was "probably a typographical error", because
10 years was the mandatory minimum; the Government agreed.
Moreover, when testifying in support of his motion to withdraw the
plea or for specific performance, Jackson acknowledged that, when
he entered the plea, he understood that the maximum possible
penalty was life imprisonment.
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sentence which would be "capped at 10 years", and Jackson responded
that he would prefer to receive "the cap at 10 years with the
downward departure". After testimony by Jackson and his wife, the
court sustained Jackson's motion "insofar as [Jackson's]
interpretation of [the plea agreement] is concerned ... [that
Jackson] be sentenced to 10 years". The court determined that
Jackson's base offense level was 35, which included a three-level
upward adjustment for his role in the offense and a two-level
downward adjustment for acceptance of responsibility, with a
guideline imprisonment range of 168 to 210 months.
The Government moved for a downward departure, pursuant to §
5K1.1, and the district court sentenced Jackson to 120 months
imprisonment. Jackson did not object after the court imposed
sentence.
II.
Contending that his sentence should be vacated and the case
remanded for resentencing, Jackson presents two bases in support:
the district court erred by allegedly determining that it had no
authority to depart below the mandatory minimum sentence; and it
violated due process by not allowing him to present argument and
evidence to refute the presentence report (PSR). But, he did not
raise either issue in the district court; accordingly, the plain
error standard of review applies.
Under that standard, we have discretion to correct errors that
are plain ("clear" or "obvious") and affect substantial rights.
United States v. Olano, 507 U.S. 725, ___, 113 S. Ct. 1770, 1777-79
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(1993); United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir.)
(en banc), cert. denied, ___ U.S. ___, 115 S. Ct. 1266 (1995).
And, in exercising that discretion, we "should correct a plain
forfeited error affecting substantial rights if the error seriously
affects the fairness, integrity or public reputation of judicial
proceedings". Olano, 507 U.S. at ___, 113 S. Ct. at 1779 (internal
quotation marks, brackets, and citation omitted).
A.
When the Government moves for a § 5K1.1 downward departure,
the court is not bound to impose the sentence recommended by the
Government, and it has the discretion to depart below the statutory
mandatory minimum sentence. See United States v. Alvarez, 51 F.3d
36, 41 (5th Cir. 1995) ("although the Guidelines and the Sentencing
Reform Act determine the validity of a district court's decision
whether to depart, the decision as to the extent of the departure
is committed to the almost complete discretion of the district
court"); United States v. Beckett, 996 F.2d 70, 75 (5th Cir. 1993)
(when prosecution moves for § 5K1.1 downward departure, based on
defendant's substantial assistance, district court is authorized to
depart below mandatory minimum sentence).
Jackson contends that the court misapplied § 5K1.1 because it
erroneously considered itself bound by the statutory mandatory
minimum sentence, as requested by the Government. See United
States v. Johnson, 33 F.3d 8, 9-10 (5th Cir. 1994) (vacating
sentences and remanding for resentencing where record left open the
question whether the sentencing court, as a matter of policy, bound
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itself to accept the Government's recommendation on downward
departure).
On the other hand, the sentencing hearing transcript does not
support this claim. After Jackson's counsel disputed Jackson's
accountability for 24 kilograms of cocaine, the court stated,
"[b]ut if he's sentenced for 10 years ... then it would become a
moot issue"; Jackson's counsel agreed. The court then stated:
I'm inclined to sentence him to 10 years. Now
having told you that, do you wish to make an
issue of the amount of the supervisory role
that he played because I don't see that that
would have any bearing on the issue at that
point because there's a 10 year mandatory
minimum in this case.
Jackson's counsel agreed: "I do concede and I concur with the
Court that if that's the Court's position, 10 years, then yes, that
would not be an issue". These comments were made before the
Government moved for a downward departure. They do not reflect a
misunderstanding about the court's discretion to depart below the
mandatory minimum; instead, they reflect its belief, in which
Jackson concurred, that adjustments to the sentencing range, which
far exceeded 10 years, would be irrelevant if the court departed
downward to a sentence of 10 years.
Jackson's counsel then requested a downward departure below 10
years, based on Jackson's diminished capacity, his health, and his
substantial assistance to the Government. The following colloquy
occurred:
THE COURT: That would be something,
Counselor, as I understand the memorandum of
understanding, that may come later.
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[JACKSON'S COUNSEL]: Yes, sir, I understand.
THE COURT: In the form of some motion.
[JACKSON'S COUNSEL]: Yes, sir, Judge.
THE COURT: Would not impact my sentence
today.
[JACKSON'S COUNSEL]: I understand, Your
Honor.
These comments reflect the court's understanding that, if a 10-year
sentence were imposed, it could be reduced further, as the result
of a motion pursuant to FED. R. CRIM. P. 35. Jackson's counsel
appears to have agreed with that understanding; in any event, there
was neither an objection nor an attempt to clarify any
misunderstanding.
None of the district court's comments at sentencing can be
construed as indicating that it felt it lacked discretion to depart
below the statutory mandatory minimum sentence requested by the
Government. Although the court did not state expressly that it had
such authority, we will not infer otherwise from its silence.
Accordingly, this issue fails the very first step of plain error
analysis -- that there be an error.
B.
Jackson maintains also that the court violated his right to
due process at sentencing when it suggested to counsel that any
objections to the PSR would be irrelevant, and then later made
specific fact findings without giving him an opportunity to rebut
the PSR. There is no plain error; the court did not prevent
Jackson from presenting arguments or testimony in support of his
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objections to the PSR. Prior to ruling on Jackson's motion to
withdraw his plea or for specific performance, the court asked
Jackson if he wished to bring to its attention other matters
pertaining to the PSR or that would impact sentencing. Jackson's
counsel responded:
Judge, we stand by our notice of factual
disputes with the PS[R] investigation. We
will stick on that and our memorandum that
goes with it, Your Honor.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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