United States of America v. Jeffrey Lee Jackson

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0172P (6th Cir.)
File Name: 00a0172p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED S TATES OF AMERICA ,
Plaintiff-Appellee,
v.
J EFFREY LEE J ACKSON ,
Defendant-Appellant.
;>

1
No. 98-4205
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 98-00090—James L. Graham, District Judge.
Argued: May 2, 2000
Decided and Filed: May 23, 2000
Before: MERRITT, JONES, and CLAY, Circuit Judges.
_________________
COUNSEL
ARGUED: Gordon Hobson, FEDERAL PUBLIC
DEFENDER’S OFFICE, Columbus, Ohio, for Appellant.
David J. Bosley, ASSISTANT UNITED STATES
ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF:
Gordon Hobson, FEDERAL PUBLIC DEFENDER’S
OFFICE, Columbus, Ohio, for Appellant. David J. Bosley,
ASSISTANT UNITED STATES ATTORNEY, Columbus,
Ohio, for Appellee.

-- 1 of 4 --

2 United States v. Jackson No. 98-4205
_________________
OPINION
_________________
MERRITT, Circuit Judge. Eighteen U.S.C. § 2119, the
federal carjacking statute, states, as amended and in relevant
part:
Whoever, with the intent to cause death or serious bodily
harm takes a motor vehicle that has been transported,
shipped, or received in interstate or foreign commerce
from the person or presence of another by force and
violence or by intimidation, or attempts to do so, shall -
(1) be fined under this title or imprisoned not more
than 15 years, or both,
(2) if serious bodily injury . . . results, be fined under
this title or imprisoned not more than 25 years, or both,
and
(3) if death results, be fined under this title or
imprisoned for any number of years up to life, or both,
or sentenced to death.
(Emphasis added.)
A federal grand jury returned a one count indictment
against defendant Jeffrey Lee Jackson that charged intent to
injure without charging bodily injury under § 2119(2):
On or about the 25th day of February 1998, in the
Southern District of Ohio, Jeffrey Lee Jackson, by force,
violence or intimidation, with the intent to cause death or
serious bodily injury, did take from Charles Chope, a
1988 Chevrolet Corvette, which had been transported,
shipped or received in interstate commerce. In violation
of 18 U.S.C. § 2119.
(Emphasis added.)

-- 2 of 4 --

6 United States v. Jackson No. 98-4205
jury that asked whether serious bodily injury resulted from the
carjacking, Jackson’s counsel timely objected to the district
court’s actions, arguing that the indictment made no reference
to § 2119(2) and directed the court to the then pending Jones
case. Finally, as in the instant case, the Jones district court
adopted the presentence report’s 25-year sentence
recommendation because one of the victims had in fact
suffered serious bodily injury. The Jones defendant objected
to his sentence and, on appeal, the Supreme Court held that
the three paragraphs of § 2119 are to be construed as
“establishing three separate offenses by the specification of
distinct elements, each of which must be charged by
indictment, proven beyond a reasonable doubt, and submitted
to a jury for its verdict.” Jones, 119 S.Ct. at 1228.
In this case, as in Jones, the indictment charging Jackson
did not make direct reference to § 2119(2), and the district
court incorrectly construed the statute’s paragraphs as
sentencing enhancements. The wording of Jackson’s
indictment, alleging a carjacking with intent to cause serious
bodily injury, varies from the conviction Jackson received,
which was of committing a carjacking which resulted in
serious bodily injury. The variation between the conviction
and sentence and the indictment is essentially the same as in
Jones. Although Jackson’s conduct was outrageous and
deserving of the 25-year sentence, we are constrained by the
Supreme Court’s opinion in Jones to instruct the district court
to reduce the sentence to 15 years. Despite evidence in the
record that may indicate that Jackson was sufficiently on
notice that he potentially faced a 25-year sentence under
§ 2119(2), the government has not raised any question of
harmless error. Government counsel did not seek to advance
a constitutional harmless error analysis, even after we asked
about it at oral argument, and we therefore do not address, but
rather pretermit, any harmless error analysis that could be
advanced.
Accordingly, we vacate the sentence issued by the district
court and remand for resentencing in accordance with this
opinion.
No. 98-4205 United States v. Jackson 3
Defendant was convicted by a jury of violating the federal
carjacking statute, 18 U.S.C. § 2119; and he now argues that,
in light of the recent Supreme Court decision handed down in
Jones v. United States, 526 U.S. 227, --, 119 S. Ct. 1215
(1999) (holding that the three subsections of § 2119 are
elements of the crime to be charged and proved, not merely
sentence enhancements as courts of appeals had previously
held), the district court erred in sentencing him to 25 years
imprisonment because his indictment merely alleged that
Jackson had the intent to cause “serious bodily injury,” but
failed to allege that he had in fact caused such an injury under
§ 2119(2). In the absence of any constitutional harmless error
analysis offered by the government, we must reverse and
remand because of the intervening Jones case.
I.
The facts of this case are undisputed. On February 25,
1998, Charles Chope, the victim, drove his 1988 Corvette a
block and a half from his home in Upper Arlington, Ohio, to
a nearby supermarket to buy a few items. Upon leaving the
market, Chope discovered his battery had died. While he was
waiting for AAA to arrive and help him start his car, Chope
was approached by Defendant who stated that he, too, was
having car trouble. After speaking only very briefly with
Jackson, Chope got into his car, which had been jump-started
by the AAA serviceman, and returned home. Chope parked
his car in a detached garage and began walking toward his
apartment when he noticed Jackson run around the corner
with what appeared to be a semiautomatic handgun. Jackson
pointed his weapon at Chope and told them that he wanted
some money. Jackson then struck Chope in the face with the
weapon and ordered him to get into the passenger seat of the
Corvette.
Jackson drove into the drive-through teller at Chope’s bank.
Under threat of death, Chope withdrew $150.00 from his
account and gave the money to Jackson. Jackson then drove
the car to a local recreation area, Hayden Run Falls, and, after
parking, ordered Chope to get out and walk along a trail that

-- 3 of 4 --

4 United States v. Jackson No. 98-4205
winds down to the bottom of the falls. Jackson closely
followed Chope and, soon after they had begun walking along
the trail, Jackson suddenly pushed Chope off of a nearby cliff.
Chope fell approximately 50 feet into a rocky ravine and
landed on his back in a few inches of water. Fortunately, it
was an unseasonably warm February day and two hikers
discovered the seriously injured Chope, who was conscious,
but in a lot of pain and unable to move. Chope explained to
the hikers what had happened and one tended to him while the
other called 911. Chope was rescued by emergency service
personnel and taken to the hospital.
Chope had sustained life-threatening injuries, with the most
serious injury being two broken vertebrae in his back.
Although it was unclear at first if Chope would live, he was
ultimately stabilized. Despite undergoing several surgeries,
today Chope remains permanently paralyzed from the waist
down with what doctors deem a zero chance of ever again
walking unassisted.
At trial, Jackson objected when the prosecution sought to
introduce medical testimony establishing the extent of the
injuries suffered by Chope, arguing that the indictment only
alleged the intent to cause serious bodily injury and that any
actual serious bodily injury that resulted from Jackson’s
actions went to a separate element of the offense not alleged
in the indictment. Defense counsel admitted that there was no
case law on point in support of this argument, but he referred
the district court to the Supreme Court’s decision to grant
certiorari in Jones v. United States, 118 S. Ct. 1405 (1998),
on the question of, first, whether paragraphs (1) through (3)
of 18 U.S.C. § 2119 describe sentencing factors or elements
of the offense and, second, if the paragraphs were deemed
sentencing enhancements, whether the statute was
constitutional. The district court overruled the objection,
concluding that current case law supported the view that the
paragraphs were sentencing enhancements, and the court then
admitted the medical testimony because it was relevant to
several facets of the government’s case against Jackson and
No. 98-4205 United States v. Jackson 5
because it would be obvious to the jury that Chope had been
seriously injured once he entered the courtroom.
Jackson again raised the same issue at the close of trial
when he objected to a portion of the special verdict form that
asked if serious bodily injury did or did not result from the
commission of the offense. The district court again overruled
the objection. After deliberation, the jury returned with a
verdict, finding Jackson guilty of the charge in the indictment
and that serious bodily injury did result.
At the sentencing hearing, Jackson objected to the
presentence investigation report’s determination that the
statutory penalty was 25 years instead of 15 years, again
raising the argument that serious bodily injury was not alleged
in the indictment. The court overruled the objection,
concluding that it was not necessary for the language at issue
to be included in the indictment because it went only to
sentencing. The court also noted that through a special
interrogatory the jury had found beyond a reasonable doubt
that serious bodily injury was sustained as a result of this
offense. The court then sentenced Jackson to 25 years in
prison, a five-year term of supervised release, and $309,546
in restitution.
II.
The issue in this case is whether the Supreme Court’s ruling
in Jones v. United States issued subsequent to Jackson’s
conviction, but while his appeal was pending, compels us to
vacate his 25-year sentence and remand for resentencing. In
Jones, the defendant was charged with violating the federal
carjacking statute, but the indictment failed to “reference the
statute’s numbered subsections and charged none of the facts
mentioned in the latter two.” 119 S. Ct. at 1218. The same
is true in the instant case. Also in Jones, the subsequent jury
instructions issued by the district court “defined the elements
subject to the Government’s burden of proof by reference
solely to the first paragraph of § 2119, with no mention of
serious bodily injury” having actually occurred. Id. Although
the district court here transmitted a special verdict form to the

-- 4 of 4 --