United States v. Jackson

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. KENNETH JACKSON JR., Defendant-Appellant.

No. 22-3958

United States Court of Appeals, Sixth Circuit

December 21, 2023

NOT RECOMMENDED FOR PUBLICATION

On Appeal from the United States District Court for the Northern District of Ohio

Before: Batchelder, Moore, and Bush, Circuit Judges.

OPINION

John K. Bush, Circuit Judge

Kenneth Jackson Jr. has appealed his sentence to this court for the third time. In his first appeal, we held that Jackson's convictions for completed carjacking were crimes of violence under 18 U.S.C. § 924(c). However, we remanded his case to the district court after vacating one of his firearms convictions. In his second appeal, we held that the district court erred in applying revised penalties under the First Step Act of 2018 to his § 924(c) convictions because the relevant provision of the Act did not apply retroactively to a defendant who had already been sentenced. Now, Jackson asks us to reconsider the same two questions that we previously addressed: namely, whether carjacking is a crime of violence under § 924(c) and whether the district court should have applied the First Step Act's revised penalties at his second resentencing hearing. Because we see no reason to disturb our prior holdings, we deny Jackson's claims and affirm the judgment of the district court.

I.

In 2017, a jury convicted Jackson of three counts of carjacking under 18 U.S.C. § 2119(2) and three counts of brandishing a firearm during a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii). United States v Jackson, 918 F.3d 467, 471 (6th Cir. 2019) (Jackson I). At the time Jackson was initially sentenced, § 924(c) required a mandatory sentence of twenty-five years for any subsequent violations of the statute, even if those violations occurred in the same case. See § 924(c)(1)(A)(iii); see also United States v. Davis, 139 S.Ct. 2319, 2324 n.1 (2019). Accordingly, the district court imposed a sentence of eighty-seven months' imprisonment for Jackson's three carjacking counts and consecutive sentences of seven, twenty-five, and twenty-five years for the firearms counts. Jackson I, 918 F.3d at 477.

The First Step Act was enacted in December 2018. Section 403(a) of the First Step Act amended § 924(c) so that the twenty-five-year mandatory minimum would not apply unless the defendant had a prior, final conviction under the statute. First Step Act of 2018, § 403(a), Pub. L. No. 115-391, 132 Stat. 5194, 5221-5222 (Dec. 21, 2018). The statute provides that § 403(a) applies to "any offense that was committed before the date of enactment of this Act, if a sentence for the offense has not been imposed as of such date of enactment." Id. § 403(b). Three months later, this court vacated one of Jackson's § 924(c) convictions and remanded his case to the district court for resentencing. Jackson I, 918 F.3d at 471.

On remand, the district court applied § 403(a) and reduced Jackson's sentence to fourteen years for the two § 924(c) offenses. United States v. Jackson, 995 F.3d 522, 524 (6th Cir. 2021) (Jackson II). However, because Jackson was no longer subject to the original 57-year mandatory minimum sentence under § 924(c), the court imposed an enhanced guidelines sentence of 108 months for his carjacking convictions. Id. Jackson challenged his enhanced guidelines sentence, and the government challenged the court's application of the First Step Act to Jackson's § 924(c) offenses. We held that the district court erred in applying the First Step Act at Jackson's resentencing because the plain meaning of § 403(b) provides that the statute's revised penalties do not apply to a defendant who has already been sentenced on the date the statute was enacted. More specifically, Jackson could not benefit from § 924(c)'s revised penalties because he was sentenced in August 2017-over one year before the First Step Act went into effect. The fact that Jackson's sentence was subsequently vacated did not affect our conclusion. We explained that although the vacatur provided the "prospective legal effect" of invalidating Jackson's prior sentence "looking forward," it did not "erase Jackson's prior sentence from history" such that a sentence had never been imposed. Jackson II, 995 F.3d at 525.

Prior to his second resentencing hearing, Jackson filed a sentencing memorandum asking the district court to vacate his remaining § 924(c) convictions because they did not qualify as crimes of violence under the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015 (2022). The district court rejected his argument and, applying penalties under the version of § 924(c) that pre-dates the First Step Act, imposed a sentence of twelve months on the carjacking counts and consecutive seven and twenty-five-year sentences on his remaining § 924(c) offenses. Jackson then filed this appeal.

Jackson now raises two arguments on appeal that he previously raised in his prior appeals. First, Jackson claims that the district court erred in failing to apply the First Step Act at his resentencing hearing. Second, Jackson asserts that his completed carjacking convictions do not qualify as crimes of violence following the Supreme Court's decisions in Taylor, 142 S.Ct. 2015, and Borden v. United States, 141 S.Ct. 1817 (2021).

We addressed both of Jackson's arguments in his prior appeals, and he has not presented any legal or factual change that would disturb our prior conclusions. Accordingly, we adhere to our previous rulings and affirm the judgment of the district court.

II.

A. WHETHER THE DISTRICT COURT ERRED IN NOT APPLYING THE FIRST STEP ACT AT RESENTENCING

Jackson first argues that the district court erred by failing to apply the First Step Act at resentencing, explaining that he should have benefitted from the Act's revised penalties under § 403(b) because his sentence had been vacated after the statute's date of enactment. Jackson claims that the effect of the vacatur made his sentence a legal nullity, such that "a sentence had not been imposed" in his case at the time of his resentencing. First Step Act of 2018, § 403(b). In addition, Jackson argues that the district court could have applied the First Step Act at resentencing because of the Supreme Court's holding in Concepcion v. United States, 142 S.Ct. 2389 (2022). There, the Court held that district courts may consider intervening changes in the law when resentencing a defendant under § 404 of the First Step Act. We review de novo whether Jackson is entitled to relief under the First Step Act.

The United States contends that Jackson's argument is precluded by the law-of-the-case-doctrine, which "promotes judicial efficiency by prohibiting parties from indefinitely relitigating the same issue that a court resolved in an earlier part of the case." Samons v. Nat'l Mines Corp., 25 F.4th 455, 463 (6th Cir. 2022); United States v. Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) ("Under the doctrine of law of the case, findings made at one point in the litigation become the law of the case for subsequent stages of that same litigation."); see also United States v. Clark, 225 Fed.Appx. 376, 378-79 (6th Cir. 2007) ("Because [a prior panel of this Court has already decided this exact issue, it has become law-of-the-case and is binding upon the district court after remand and upon us in this appeal."). But we may reconsider a prior panel's ruling in three contexts: where "(1) substantially different evidence is raised on subsequent trial; (2) where a subsequent contrary view of the law is decided by the controlling authority; or (3) where a decision is clearly erroneous and would work a manifest injustice." United States v. Haynes, 468 F.3d 422, 426 (6th Cir. 2006) (quoting McKenzie v. BellSouth Telecomms, Inc., 219 F.3d 508, 513 n.3 (6th Cir. 2000)).

Jackson has not presented any change in law or facts that would warrant reconsidering our decision in Jackson II. Stated differently, under any of the Haynes prongs, Jackson fails to establish a valid basis for us to reconsider our decision in Jackson II. We take each prong in turn.

As an initial matter, in considering the first prong of Haynes, Jackson did not present any additional evidence indicating that he was entitled to benefit from § 403 of the First Step Act at his resentencing.

As to the second prong, Jackson did not present any controlling authority that would require us to rethink our prior decision. He points to the Supreme Court's decision in Concepcion to support his claim, but that case involves a separate section of the First Step Act and so does not affect our holding in Jackson II. In Concepcion, the defendant was resentenced under § 404(b) of the First Step Act, which authorizes courts to apply reduced penalties under the Fair Sentencing Act of 2010 to defendants sentenced before that Act was enacted. 142 S.Ct. at 2397. However, as this court has recognized, "Concepcion concerned a different and unrelated provision of the First Step Act that explicitly applied retroactively." United States v. McCall, 56 F.4th 1048, 1061 (6th Cir. 2022). The decision did not address whether § 403-the provision at issue in this case- applies to a defendant who has already been sentenced. As such, Concepcion has no bearing on the outcome of Jackson's appeal.

Additionally Jackson has not presented any decisions from our circuit that would require us to reconsider our holding in Jackson II. The United States cites United States v. Carpenter, in which another panel of this court followed Jackson II in declining to apply § 403 of the First Step Act to a defendant who was "under sentence pending appeal" at the time the Act went into effect. No. 22-1198, 2023 WL 3200321, at *2 (6th Cir. May 2, 2023) (cit...