United States of America v. Mulunas Nomost Jackson

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0609n.06
Filed: October 10, 2008
No. 07-3121
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MULUNAS NOMOST JACKSON,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF
OHIO
Before: SILER, BATCHELDER, and ROGERS, Circuit Judges.
PER CURIAM. Defendant Mulunas Nomost Jackson appeals the sentence imposed by the
district court following his guilty plea to the charge of being a felon in possession of a firearm. He
argues: (1) the district court erred in using parole documentation to determine the nature of a prior
conviction; (2) the district court erred in finding that the prior conviction was a “controlled substance
offense”; and (3) the government breached its plea agreement with him. Because the government
failed to satisfy its obligation under the plea agreement, we VACATE the sentence and REMAND
for re-sentencing before a different district judge.
BACKGROUND
In 2005, Jackson was indicted on one count of being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g). A plea agreement was filed, and Jackson pled guilty to the charged

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offense. If Jackson continued to accept responsibility through the time of sentencing, the
government agreed to the following:
[T]he United States will notify the District Court pursuant to U.S.S.G. §3E1.1(b)
stating to that [sic] the defendant has timely notified authorities of his intention to
plead guilty; and (2) pursuant to U.S.S.G. §2K2.1(a)(4)(A) the defendant committed
the instant offense subsequent to sustaining one felony conviction for a crime of
violence resulting in a base offense level of 20.
(emphasis added). The plea agreement then cautioned that “these agreements are not binding on the
Court and the final determination of the applicable guideline range for Defendant’s sentence rests
solely with the Court.”
A probation officer prepared a presentence investigation report (PSR) and discovered a prior
drug offense that the plea agreement did not take into account. As a result of this offense, the PSR
stated that Jackson’s base offense level was 24, minus three levels for acceptance of responsibility.
Based on the offense level in the PSR, Jackson’s Sentencing Guidelines range was 77 to 96 months
of imprisonment. Jackson objected to the PSR and argued that his base offense level should be 20.
The district court ruled that the PSR correctly calculated the Guidelines range and sentenced Jackson
to 96 months of imprisonment and three years of supervised release.
DISCUSSION
A. Prior Controlled Substance Offense
The district court properly found that Jackson was subject to a sentencing enhancement
because he had a prior controlled substance offense. Under the Sentencing Guidelines, a controlled
substance offense is defined as:

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an offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that prohibits the manufacture, import, export, distribution, or
dispensing of a controlled substance . . . or the possession of a controlled substance
. . . with intent to manufacture, import, export, distribute, or dispense.
USSG § 4B1.2(b). Mere possession without proof of intent to “manufacture, import, export,
distribute, or dispense” is not a controlled substance offense. United States v. Montanez, 442 F.3d
485, 488 (6th Cir. 2006).
The offense at issue here is a 1992 conviction for “aggravated trafficking” under Ohio Rev.
Code § 2925.03(A). The version of § 2925.03 in effect at the time of Jackson’s conviction contained
multiple subsections that criminalized several different activities, including mere possession of drugs
in excess of a certain “bulk amount.” Ohio Rev. Code Ann. § 2925.03(A)(4), (6), (9) (West 1993).
In Montanez, this court applied a “categorical approach” and held that a defendant’s convictions
under §§ 2925.03(A)(6) and (9) did not qualify as controlled substance offenses under the Sentencing
Guidelines. 442 F.3d at 489, 494. “Generally speaking, only the fact of the prior conviction and the
statutory definition of the predicate offense are used to determine whether a prior conviction is a
controlled substance offense.” Id. at 489 (quoting United States v. Galloway, 439 F.3d 320, 322 (6th
Cir. 2006)). If a statute criminalizes both conduct that qualifies as a controlled substance offense
and conduct that does not, then the categorical approach is not determinative. See id. at 493
(discussing United States v. Wright, 43 F. App’x 848 (6th Cir. 2002)).
In this case, we know only that Jackson was convicted under § 2925.03(A), which
criminalizes both qualifying and non-qualifying conduct. When the categorical approach fails to
resolve the inquiry, “ a sentencing court may look to the ‘charging document, written plea agreement,

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transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant
assented’ in order to determine whether the prior crime qualifies as a controlled substance offense.”
Id. at 489 (quoting Shepard v. United States, 544 U.S. 13, 15 (2005)) (internal citation omitted). In
Shepard, the Supreme Court limited sentencing courts to examining the aforementioned documents
or “some comparable judicial record of this information” in evaluating whether a prior offense
satisfies the requirements to be an aggravating factor. See 544 U.S. at 26.
At the sentencing hearing, the prosecutor mistakenly referred to parole documentation in
support of the PSR’s finding that Jackson had committed a controlled substance violation. However,
the district court made clear that its decision was based on official court documents, not the parole
records. Specifically, the district court relied on the indictment that charged Jackson “with
knowingly selling, or offering to sell, a controlled substance.” Under Shepard and Montanez, it is
appropriate for a sentencing court to consider the charging document to evaluate the nature of a prior
conviction when the categorical approach is not determinative. Therefore, the district court properly
determined that Jackson had been convicted of a controlled substance offense.
B. Breach of the Plea Agreement
“[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262 (1971). In this case, the government agreed that if
Jackson continued to accept responsibility through the time of sentencing, it would notify the district
court that “the defendant committed the instant offense subsequent to sustaining one felony
conviction for a crime of violence resulting in a base offense level of 20.” We review de novo the

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district court’s interpretation of a plea agreement. United States v. Fitch, 282 F.3d 364, 366 (6th Cir.
2002). We also review de novo whether the government violated the plea agreement. United States
v. Barnes, 278 F.3d 644, 646 (6th Cir. 2002).
At Jackson’s sentencing, the prosecutor never stated that Jackson had “committed the instant
offense subsequent to sustaining one felony conviction for a crime of violence resulting in a base
offense level of 20.” The government argues that it did not breach the plea agreement because when
asked to respond to defense counsel’s arguments, the prosecutor merely agreed with the probation
officer’s findings. It also stresses that the plea agreement made clear that it was not binding on the
sentencing court. This argument ignores the fact that the plea agreement created an affirmative
obligation upon the government to “notify” the district court of certain information. Whether
Jackson understood that he could receive up to the statutory maximum sentence is not relevant to
whether the government upheld its end of the plea agreement. The propriety of the district court’s
sentencing decision is also a separate issue from whether the government violated the plea
agreement. A district court’s statements about how it reached a sentencing decision do not negate
the government’s obligations under a plea agreement. See Barnes, 278 F.3d at 648.
The plea agreement in this case did not require the government to recommend or advocate
a specific sentence or offense level. It simply required the government to notify the court that
Jackson had a specific base offense level. If the prosecutor had simply acknowledged and restated
what the government agreed to in the plea agreement, the requirement to notify would have been
satisfied. If the district court then wanted to impose a higher sentence, the prosecutor would have
been free to provide facts to support the reasonableness of that sentence. The government does not

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breach a plea agreement merely because a prosecutor “recite[s] many of the damning facts” to
support the district court’s sentencing decision. See United States v. Fouse, 250 F. App’x 704, 711-
12 (6th Cir. 2007) (unpublished opinion) (“A neutral recitation of facts does not breach a plea
agreement.”).
When the government breaches a plea agreement, “the fundamental fairness and integrity of
the judicial proceeding [are] compromised.” Barnes, 278 F.3d at 648. Further, “[t]he harmless error
rule does not apply to the law of contractual plea agreements.” Id. (quoting United States v. Myers,
32 F.3d 411, 413 (9th Cir. 1994)). Therefore, when the government breaches a plea agreement, we
must vacate the district court’s sentencing decision and remand for re-sentencing before a different
district judge. See id. at 649 (citing Santobello, 404 U.S. at 263); see also United States v.
Mondragon, 228 F.3d 978, 981 (9th Cir. 2000) (“[W]e remand to a different judge for re-sentencing
because the case law requires us to do so. We intend no criticism of the district judge by this action,
and none should be inferred.”).
VACATED and REMANDED.

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