JOSEPH A. JACKSON, Petitioner,
UNITED STATES OF AMERICA, Respondent.
RICHARD MILLS, District Judge.
Petitioner Joseph A. Jackson has two motions pending: A Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [d/e 1] and a Motion to Amend 28 U.S.C. § 2255 Motion or in the Alternative Motion Pursuant to 18 U.S.C. § 3582(c) [d/e 7].
Both motions are denied.
Between August and October 2006, Jackson sold a total of 23.7 grams of cocaine base to an undercover agent over the course of two transactions. See Presentence Investigation Report (PSR) [d/e 10], in Case No. 06-cr-30079, ¶¶ 10, 15. He also sold 5 grams of cocaine and 6.6 grams of cocaine base to a confidential source. See id. at ¶¶ 6-7. When he was arrested on October 16, 2006, he dropped a bag of 14 grams of cocaine, and an additional 249 grams were found on his person. See id. at ¶ 18. On November 2, 2006, Jackson was charged with distributing 5 or more grams of crack cocaine. See Indictment [d/e 5], in Case No. 06-cr-30079. On December 28, 2006, the Petitioner entered an open plea of guilty to the one-count indictment before U.S. District Judge Jeanne E. Scott. See Minute Entry of Dec. 28, 2006, in Case No. 06-cr-30079.
In preparation for his sentencing hearing, a probation officer prepared the PSR. See PSR [d/e 10], in Case No. 06-cr-30079. In the PSR, Jackson was held accountable for 1, 883.95 grams of cocaine and 30.3 grams of cocaine base. See id. at ¶ 22.
The probation officer determined that, before enhancements, Jackson faced a Total Offense Level of 27. See id. at ¶ 36. However, due to having at least two prior felonies for controlled substances offenses, Jackson was subjected to career offender enhancements, resulting in a Total Offense Level After Enhancements of 34. See id. at ¶ 39.
The PSR set out Jackson's extensive criminal history. See id. at ¶¶ 40-77. Jackson was assessed 48 Criminal History Points by the probation officer-more than three times the Points required to be assigned Criminal History Category VI.
Jackson, who was 47 at the time of sentencing, had been convicted of the following offenses:
Unlawful Use of a Weapon;
Unlawful Delivery of a Controlled Substance (2 times);
Possession of a Controlled Substance (7 times);
Possession of Drug Paraphernalia;
Burglary (2 times);
Retail Theft (6 times);
Fleeing from the Police;
Obstructing a Peace Officer;
Criminal Trespass to Land (2 times); and
Multiple Traffic Violations.
See id. at ¶¶ 41-72. The information on those convictions reflect that supervision was revoked on numerous occasions, Jackson had absconded from supervision, and he had escaped from the Illinois Department of Corrections. See id. The PSR also reflected that Jackson had many other contacts with law enforcement and the criminal justice system that did not result in conviction. See id. at ¶¶ 78-99.
In the end, the probation officer calculated that the Guideline Range was 262 to 327 months.
The sentencing hearing was held on April 30, 2007. The Court adopted the PSR with only one slight modification that did not affect the sentencing range. See Sentencing Transcript [d/e 16], in Case No. 06-cr-30079, page 4-6.
The Government made a motion for a downward departure pursuant to U.S.S.G. § 5K1.1 on the basis of substantial assistance. See id. at pages 8-10. The Government stated the following:
And, although, you know, he gave historic information, what he could, there wasn't anything that the Government could really use from what he could tell us.
But we were able to utilize information that his girlfriend - I think it's his girlfriend - did provide. And in fact, a case was indicted in federal court because of - at least in part because of her efforts. So we give him credit not only for the historic information that was of value, it just wasn't of use, and also for the covert and active participation of the girlfriend.
Id. at 8-9. The Government recommended a sentence twenty percent below the low end of the Guideline Range: 209 months.
The Assistant Federal Public Defender (AFPD) representing Jackson argued in favor of an even lower sentence, requesting a term of 199 months. See id. at 10-12. The AFPD argued that Jackson was not being held accountable for a tremendous amount of drugs, that he was a middle-aged man, that the career offender enhancements were not designed for an individual like Jackson, and that the crack/powder disparity resulted in sentencing inequities. See id. at 6, 10-12. Jackson stated the following in his allocution:
I don't really know how to explain it, but most of my life I been a drug abuser. And the little time or the things I did recently was just, I don't know, I guess you could that say I was trying to get retribution for all the times I had abused drugs over 30 years.
And I know that it was wrong and I know that I could have done something else, you know, to support my family and to help my family out. And I just ask that the Court be lenient and assist me in some way, because I am up in age and I don't understand, you know, how something that I did 22 years ago that I paid my time for, it doubles my time again, you know.
I didn't know all the laws or crack cocaine against powder cocaine. And - I mean if I really had just stop and took a look at it I don't think I would have sold drugs and I don't think I would have used drugs no more. But I didn't, I made the mistake, and I ask the Court for leniency....
Id. at 12-13.
Judge Scott stated the following upon imposing sentence:
Well, I've reviewed the Pre-Sentence Report and file and certainly considered the evidence of counsel and your statement as well.
There's a mix here, as the [Government] noted, of good and bad. Once you were caught in this case you did agree to cooperate, which is a benefit that you'll receive here today. And the fact that your girlfriend was able to give even more information is of benefit, is going to benefit you as well.
I'm going to allow the motion for what we use[d] to call a downward departure that the Government made.
In terms of the argument that I should give a sentence reduction greater than the Government recommended, here's the problem with that as I see it.
Yes, you may have had a 30 year problem with drugs, but you've got a 30 year problem with committing criminal actions. I don't recall ever seeing a Criminal History any worse than the one you've got. And that's a fairly significant statement.
I'm sorry if you have struggled with drugs, but chances to address them have come. Remarkably, as I recall the Pre-Sentence, you did well in all the drug programs, isn't that right? Passed them all. And then went right back out and did drugs.
So you're good at getting through the programs but you haven't been good in committing to change. And the history that we all make follows us. And the reason it comes back to haunt you now is that it's so bad that Congress has directed that we bump your sentencing up when you're a career offender.
Even if we disregard all of that, the number of Criminal History points that you have is over three times the number that are even charted. [Your attorney] says, well, if we treated this more like powder cocaine your guideline would be lower. All right. But if we extended the Criminal History points for somebody like you, you'd be looking at a Criminal History Category of at least 20, and it stops at VI.
So, you've created quite a mess for yourself. I'm sorry that you have. But I think the Government's recommendation is generous under all of the circumstances and appropriate, and I'm going to accept that. I've weighed all the statutory factors, but the fact that you've been given help with drug programs, you slide right through those programs and then return to drugs repeatedly. You have the worst ...