United States of America v. Harold Jackson

In the
United States Court of Appeals
For the Seventh Circuit
No. 98-2696
United States of America,
Plaintiff-Appellee,
v.
Harold Jackson,
Defendant-Appellant.
On Remand from the
Supreme Court of the United States
Submitted December 22, 2000--Decided January 10, 2001
Before Posner, Diane P. Wood, and Evans, Circuit
Judges.
Per Curiam. In our opinion reported at 207 F.3d
910 (7th Cir. 2000), we affirmed the conviction
of Jackson and his codefendants (who are not
involved in the current proceeding) but remanded
with instructions to the district court to
resentence Jackson because the court had erred in
applying a sentencing guideline to his role in
the overall offense. Before he could be
resentenced, the Supreme Court granted his
petition for certiorari, vacated our decision,
and remanded the case to us (121 S. Ct. 376
(2000)) for reconsideration in light of Apprendi
v. New Jersey, 120 S. Ct. 2348 (2000). Decided
after our decision, Apprendi holds that any fact
other than the fact of a prior conviction that
increases the penalty for an offense beyond the
statutory maximum penalty for that offense is an
element of the crime and so must be submitted to
the jury and proved beyond a reasonable doubt.
Id. at 2362-63. Jackson received a sentence of 30
years on the basis of the sentencing judge’s
determination that his offense had involved at
least 5 grams of crack cocaine. 21 U.S.C. sec.
841(b)(1)(B). The maximum would have been 20
years had no determination of quantity been made,
sec. 841(b)(1)(C), and since the jury had not
been asked to determine quantity, the higher
sentence violated the rule declared in Apprendi.
But since Jackson had not raised in the district

-- 1 of 2 --

court the issue later decided by Apprendi, he can
obtain the benefit of that decision only if the
sentencing of him in disregard of it was a plain
error. (The applicability of the plain-error
standard to Apprendi errors is established in
this circuit by our recent decision in United
States v. Nance, No. 00-1836, slip op. at 8-9,
2000 WL 1880629, at *4-5 (7th Cir. Dec. 29,
2000).) Plain it was in the sense of clear, as is
apparent now that Apprendi has been decided,
which is the relevant time for appraising
plainness in the sense of clarity. Johnson v.
United States, 520 U.S. 461, 467-68 (1997). But
to prevail under the plain-error standard,
Jackson must also show that the error was
prejudicial, that is, that there is some
likelihood that the judgment would have been
different had the error not been made. Id. at
467; see also Olano v. United States, 507 U.S.
725, 734 (1993). Concretely, if the evidence that
Jackson’s offense involved at least 5 grams of
crack is "overwhelming," he is not entitled to be
resentenced on the basis of Apprendi. Johnson v.
United States, supra, 520 U.S. at 470. (The
ground on which we directed that he be
resentenced is unrelated.)
Overwhelming that evidence was. Jackson was an
official of the Gangster Disciples, a very large
Chicago drug gang whose principal commodity was
crack cocaine. On one occasion alone Jackson sold
51.7 grams of crack, more than ten times the
amount required to make a defendant eligible for
a 40-year maximum sentence under 21 U.S.C. sec.
841(b)(1)(B). One of the counts on which he was
convicted charged the conspiracy with trafficking
in 51.7 grams of crack. Other counts on which he
was convicted also charged amounts greatly in
excess of 5 grams. No reasonable jury could have
failed to convict Jackson of being involved in
the sale of hundreds, if not thousands, of grams
of crack. The failure to ask the jury to
determine whether the amount was at least 5 grams
was harmless far beyond a reasonable doubt.
We therefore reinstate our previous judgment.
Judgment Reinstated.

-- 2 of 2 --