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United States v. Jackson

United States District Court, E.D. Louisiana

November 9, 2017

UNITED STATES OF AMERICA
v.
GEORGE JACKSON

         SECTION "F"

          ORDER AND REASONS

          MARTIN L. C. FELDMAN UNITED STATES DISTRICT JUDGE

         Before 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.

         Background

         Defendant George Jackson was one of many involved in the Hankton Group[1]-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.

         In 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.

         I. Discussion

         Jackson's 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.

         Jackson 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.

         A.

         Upon 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).

         B.

         Jackson 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.[2] 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.”

         Here, 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).[3] 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 ...


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