United States of America v. Melvin D. Jackson

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 19, 2008
Decided December 1, 2008
Before
DANIEL A. MANION, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
TERENCE T. EVANS, Circuit Judge
No. 07‐2269
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
MELVIN D. JACKSON,
Defendant‐Appellant.
Appeal from the United States District
Court for the Western District of
Wisconsin.
No. 06‐CR‐174‐C‐01
Barbara B. Crabb,
Chief Judge.
O R D E R
Melvin Jackson pleaded guilty to distributing crack, see 21 U.S.C. § 841(a)(1), and the
district court sentenced him as a career offender to 188 months’ imprisonment. On appeal
Jackson asks that we vacate his sentence and order a remand so that the district court can
reconsider his sentence in light of Kimbrough v. United States, 128 S. Ct. 558, 574 (2007).
Because Jackson was sentenced as a career offender, however, Kimbrough has no effect on
his sentence. We therefore affirm Jackson’s sentence.
Jackson, using the alias “Shane,” arranged to sell two ounces of crack to an
undercover police officer for $1,800. Jackson and his friend Gregory Burks met the officer at
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07‐2269 Page 2
the agreed location and told him to follow them to an IHOP. At the IHOP, Burks handed
Jackson a package, which Jackson passed along to the officer. Testing confirmed that the
package contained roughly 47 grams of crack.
That quantity triggered a statutory maximum of 40 years’ imprisonment. See 21
U.S.C. § 841(b)(1)(B)(iii). At sentencing in May 2007, the district court concluded—and
defense counsel conceded—that Jackson qualified as a career offender because he was 22
when he committed this drug crime and had prior felony convictions for forcible robbery
and substantial battery. The court thus applied a base offense level of 34 under U.S.S.G. §
4B1.1(B). With a three‐level reduction for acceptance of responsibility, see U.S.S.G. § 3E1.1,
Jackson’s total offense level of 31 combined with his criminal history category of VI yielded
an imprisonment range of 188 to 235 months. Jackson argued that an even lower sentence
would be appropriate and asked the court to depart below the career offender range, but the
court disagreed:
You’re young and impulsive and very dangerous and I really can’t agree with
[defense counsel], as eloquently as he presented his argument, but I can’t
agree with him that you’re somebody that should have the benefit of lower
guidelines. I think you’re a career offender and you very much deserve that
characterization.
The court therefore imposed a term at the low end of that range after considering Jackson’s
offense, history, and characteristics. See 18 U.S.C. § 3553(a).
On appeal Jackson makes a “Kimbrough‐like” argument: he argues that the Supreme
Court’s reasoning in Kimbrough should be extended beyond the guidelines to statutory
penalties that turn on whether the cocaine at issue is powder or crack. Jackson
acknowledges that he did not raise this argument in the district court, so our review is for
plain error. See United States v. Taylor, 520 F.3d 746, 748‐49 (7th Cir. 2008). Jackson correctly
notes that if he had sold powder cocaine instead of crack, the statutory maximum sentence,
and therefore his base offense level and sentencing range, would have been lower. So,
Jackson proposes, the “intermediate step” of determining the appropriate statutory
maximum should also be subject to the same discretion that a sentencing court has under
Kimbrough to reject the default ratio of powder to crack.
However, as Jackson’s attorney conceded at oral argument, this is just new
packaging for a recycled argument. In a typical case requiring remand after Kimbrough, the
defendant’s base offense level is set by U.S.S.G. § 2D1.1, and so the sentencing disparity
between crack and powder cocaine offenses arises from the drug‐quantity table contained in
the guidelines. See, e.g., United States v. Hearn, 534 F.3d 706, 714‐15 (7th Cir. 2008)

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No. 07‐2269 Page 3
(remanding and observing that “the 100:1 ratio is not a statutory dictate” but rather “a
judgment of the Sentencing Commission.”). In contrast, Jackson was sentenced under
U.S.S.G. § 4B1.1, which in turn relies on statutory maximums to establish a defendant’s base
offense level. Thus, although Jackson’s sentencing range was higher than if he had been
caught with an identical amount of powder cocaine, the disparity in his case stems not
“from the guideline itself but from the statutory maximum that the guideline referenced.”
United States v. Liddell, No. 07‐3373, 2008 WL 4149750, at *4 (7th Cir. Sept. 10, 2008). And
“[w]hile the sentencing guidelines may be only advisory for district judges, congressional
legislation is not.” United States v. Harris, 536 F.3d 798, 803 (7th Cir. 2008). Kimbrough
therefore has no effect on Jackson’s statutory maximum or his guidelines range. See Harris,
536 F.3d at 813 (7th Cir. 2008); see also United States v. Clanton, 538 F.3d 652, 660 (7th Cir.
2008); United States v. Clay, 524 F.3d 877, 878‐79 (8th Cir. 2008); United States v. Crawford, 520
F.3d 1072, 1075 (9th Cir. 2008); United States v. Jimenez, 512 F.3d 1, 8‐9 (1st Cir. 2007).
There is one caveat. We have also recently considered whether sentencing courts
may use their discretion under Kimbrough not to disregard the career‐offender guideline, but
to issue a below‐guidelines sentence after correctly applying the career‐offender penalty.
See Liddell, No. 07‐3373, at *4. In Liddell, we concluded that they can. Id. at *6 (observing
that career‐offender guidelines are advisory and that after Kimbrough district courts may
consider crack/powder disparity when resentencing career offenders). In the district court,
Jackson anticipated Liddell by asking the court to apply § 4B1.1 “on paper” and then exercise
its discretion under Booker to go below the career‐offender range and sentence him as if he
was not a career offender. Jackson has not pursued this argument on appeal, however, and
in any event the district court concluded that a below‐guidelines sentence would be
inappropriate. Even after Liddell that conclusion is not unreasonable. See United States v.
Otero, 495 F.3d 393, 401‐02 (holding that a sentence within a properly calculated guidelines
range is presumptively reasonable).
AFFIRMED.

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