United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE
the Court is George Jackson's 28 U.S.C. § 2255
motion to vacate, set aside, or correct a sentence. For the
following reasons, the motion is DENIED.
George Jackson was one of many involved in the Hankton
Group-a criminal racketeering enterprise
involved in murder, bribery, money laundering, and drug
trafficking. Jackson pled guilty before this Court to Counts
1 and 2 of his third superseding indictment on June 1, 2016.
Count 1 charges that Jackson conspired with others in the
Hankton Group to commit racketeering activities in violation
of the Racketeer Influenced and Corrupt Organization
(“RICO”) Act. 18 U.S.C. § 1962(d). Count 2
charges that Jackson, along with other members of the Hankton
Group, knowingly and intentionally conspired to distribute
280 grams or more of crack cocaine and five kilograms or more
of powder cocaine, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(A)-(D). This Court sentenced Jackson to
168 months in prison and five years of supervised released
for both Counts 1 and 2, to be served concurrently. Jackson
did not move to amend his sentence or file any appeal to the
Fifth Circuit Court of Appeals within the allotted time.
Accordingly, his sentence and judgment became final.
exchange for a plea deal, the Government dismissed Count 3 of
the superseding indictment, which charged Jackson with a
conspiracy to possess firearms in violation of 18 U.S.C.
§ 924(o). It also dismissed the Bill of Information
filed against the defendant, pursuant to 21 USC § 851,
stating that the Jackson had a prior felony drug conviction.
The Bill of Information would have increased his mandatory
minimum sentence of imprisonment from 10 years to 20 years.
To fulfill his side of the bargain, Jackson agreed to
“[w]aiv[e] and giv[e] up any right to challenge his
sentence collaterally, including . . . all rights which arise
under Title 28, United States Code, Sections 2255 and
2241.” However, he did not waive “the right to
raise a claim of ineffective assistance of counsel in an
appropriate proceeding.” On March 6, 2017, Jackson
filed this 28 U.S.C. § 2255 motion to vacate, set aside,
or correct a sentence.
challenge on his sentence centers on a sentence enhancement
included in Jackson's Presentence Investigation Report
(PSR). He had a criminal history category of II and a base
offense level of 32, and the United States Probation Office
subtracted three levels for accepting
responsibility, which produces a guideline
imprisonment range of 97-121 months. But the Probation Office
applied two specific offense characteristics, U.S.S.G.
2D1.1(b)(1) and (b)(2), which increased his offense level by
four to 36. U.S.S.G. 2D1.1(b)(1) provides that “[i]f a
dangerous weapon (including a firearm) was possessed,
increase by 2 levels.” U.S.S.G. 2D1.1(b)(2) provides
that “[i]f a defendant used violence, made a credible
threat to use violence, or directed the use of violence,
increase by 2 levels.” Offense level 36 (with a
criminal history category of II) has a guideline imprisonment
range of 151 to 188 months. Jackson contends that the PSR
does not provide any information as to why it applied these
specific offense characteristics.
asserts four grounds of relief: (1) The PSR did not establish
the sentencing enhancement by a preponderance of the evidence
and should not have applied to Jackson's sentence. (2)
Jackson's counsel at sentencing was ineffective because
counsel failed to object to the four-level sentencing
enhancement which resulted in a 47-month sentence increase.
(3) He seeks leave for the United States Probation Office and
the government to produce any evidence justifying his two
specific offense characteristics enhancements. (4) Jackson
requests an evidentiary hearing based on the previous three
grounds raised in his motion. The Court finds that he is not
entitled to relief on any of these grounds.
review of the briefings and the record of the case, the Court
finds that Jackson's claims can be decided on the
pleadings; there is no need for an evidentiary hearing.
See 28 U.S.C. § 2255; United States v.
Smith, 915 F.2d 959, 964 (5th Cir. 1990) (where the
court finds the record “clearly adequate to dispose
fairly of the allegations, the court need inquire no
further”); Franklin v. United States, 589 F.2d
192, 193 (5th Cir. 1979).
contends that the Court should not have applied the PSR
sentencing enhancement because it was not supported by a
preponderance of evidence or credible information. But
Jackson is barred from appealing the application of the PSR
because he waived his right to collaterally attack sentencing
under 28 U.S.C. § 2255. The Fifth Circuit held in
United States v.Wilkes that a defendant can waive
his right to appeal his sentence under 28 U.S.C. § 2255
in a plea agreement, as long as the waiver is informed and
voluntary. 20 F.3d 651, 653 (5th Cir. 1994). For a waiver to
be informed and voluntary, the defendant must understand the
consequences of the waiver. United States v. Baty,
980 F.2d 977, 979 (5th Cir. 1992). Namely, “that
[defendant] had a right to appeal his sentence and that he
was giving up that right.” United States v.
Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (quoting
United States v. Melancon, 972 F.2d 566, 568 (5th
Cir. 1992)). A defendant's statement at his guilty-plea
hearing that he understood and voluntarily approved of his
plea is persuasive because “[s]olemn declarations in
open court carry a strong presumption of verity.”
Wilkes, 20 F.3d at 653 (quoting Blackledge v.
Allison, 431 U.S. 63, 74 (1977)); United States v.
Cantu, 273 F.3d 393, at *1 (5th Cir. 2001). In
determining whether the waiver was informed and voluntary,
the reviewing court will consider whether the court addressed
the waiver provision in the hearing and if the defendant
asked any questions about it. See Cantu, 273 F.3d at
*1. But if the defendant read and understood the plea
agreement and did not ask about the waiver, the defendant
“will be held to the bargain to which he agreed,
regardless of whether the court specifically admonished him
concerning the waiver of appeal.”
the Court specifically addressed the waiver, and explained to
Jackson that he has waived his right nearly all
post-conviction relief. Transcript George Jackson
Re-Arraignment, Doc. 1983 at 9-10 (6/6/17). Jackson stated
that he understood the charges against him and the waiver,
and was pleading guilty voluntarily. Id. at 9-10,
21-22. He did not then and has since not alleged or provided
any evidence to suggest that he did not understand the terms
of the plea agreement or the consequences of accepting it.
Jackson made an informed and voluntary waiver ...