### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 18-3534
U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v.

D ENNIS D. J ACKSON , ALSO KNOWN AS L ITTLE D, Defendant-Appellant

.

____________________ Appeal from the United States District Court for the Southern District of Illinois. No. 4:17-cr-40052 — J. Phil Gilbert, Judge

.

____________________
A RGUED S EPTEMBER 25, 2019

— D ECIDED O CTOBER 8, 2019

____________________

Before F LAUM , S YKES , and S CUDDER , Circuit Judges

. F LAUM , Circuit Judge . Dennis Jackson was convicted ofmultiple drug charges and sentenced to mandatory life imprisonment. He appeals his convictions on the grounds that the district court erred in allo wing certain recordings and testimony into evidence; he also challenges his sentence, seeking a reduction in light of the First Step Act. For the reasons stated below, we a ffi rm the judgment of the district court.2 No. 18-3534

I. BackgroundIn 2017, the Southern Illinois Drug Task Force and the Illinois State Police began investigating Jackson and some of his associates, suspecting their in volvement in a gangland shooting. The investigation led to evidence suggesting that Jackson was dealing drugs in Harrisburg, Illinois. The investigating agents supplied a con fi dential source (“CS”) with funds to make several controlled purchases from Jackson, each of which was recorded via an audiovisual device on the CS’s person. After the CS completed three controlled purchases, agents obtained a warrant and raided Jackson’s residence. The search turned up methamphetamine, other drugs, cash, scales, and multiple loaded fi rearms. Jackson was arrested and several superseding indictmentsfollowed. He proceeded to trial on six counts: (1 & 2) distributing a mixture and substance containing methamphetamine; (3) distributing fi ve grams or more of actual methamphetamine; (4) possessing with intent to distribute 50 grams or more of actual methamphetamine; and (5 & 6) two weapons charges. Before trial, the government fi led an information establishing that Jackson had twice pleaded guilty to felony drug charges. Taking his prior convictions into account, he faced, if convicted, a mandatory minimum sentence of ten years on count 3 and life imprisonment on count 4. As Jackson’s trial approached, the CS escaped from the jail where he was being held on unrelated charges. The CS wasreturned to custody only two days before Jackson’s trial began, and the government determ ined not to call him as a witness. Instead, the government fi led a motion in limine seekingNo. 18-3534 3

a pretrial ruling on the admissibility of the recordings showing the CS purchasing drugs from Jackson. The district court granted the motion, reasoning that:[a]ssuming the Government lays a proper foundation, does not use the CS’s statements for their truth, and satis fi es all other evidentiary requirements, the Court will not exclude the recordings on Confrontation Clause grounds orany of the other ground discussed above. Further, it will give appr opriate limiting instructions to the jury when th e recordings are played and at any other reasonab le time requested by a party. In a pretrial hearing, the district judge noted that were Jackson convicted on count 4, a mandatory life sentence would apply, and he would have no discretion to modify it.Jackson stated that he understood and, contrary to his lawyer’s advice, wished to proceed to trial rather than accept a plea bargain. At trial, two investigators provided relevant testimony. Special Agent Jayson Murbarger and Inspector Glenn Rountree participated in the stings of Jackson; between them, they searched the CS for contraband, cash, or weapons before each controlled sale, provided him with cash to buy the drugs, and

a ffi xed audiovisual recording devices on his person. Murbarger testi fi ed that he watched the CS during each sale andobserved him placing the purchased drugs in the agents’ vehicle. The agents provided si milar testimony discussing the chain of custody of physical ev idence and the integrity of the recordings made by the CS.4 No. 18-3534

The recordings of the drug transactions were played forthe jury over Jackson’s objections. The court provided the following instructions:Ladies and gentlemen of the jury, the government will now present recorded conversations and video recordings. This is proper evidence that you should consider together with and in the same way you consider other evidence in this case. ...The recordings contain statements and questions by the con fi dential source in this case. You may consider statements or questions of the

con fi dential source on the recordings only to help you understand what the defendant said in response to—in response or did in reaction tothose statements or questions. You may not consider the con fi dential source’s statements or questions for the truth of what the con fi dential source said. The con fi dential source’s statements and questions stan ding alone are not evidence of the defendant’s guilt. After the recordings played uninterrupted, Inspector Rountree testi fi ed as to what he saw and heard on the recordings. Following a four-day trial, on July 12, 2018, a federal jury in the Southern District of Illinois found Jackson guilty of counts 1 through 4 but was unable to reach a consensus oncounts 5 and 6. The government subsequently moved to dismiss counts 5 and 6 without prejudice.On November 28, 2018, the district court entered judgment and sentenced Jackson as follows: concurrent terms ofNo. 18-3534 5

360 months for counts 1 and 2, a concurrent term of 480 months on count 3, and a life sentence on count 4. The President signed the First Step Act, Pub. L. 115-391, into law on December 21, 2018. One e ff ect it has (among others) is to reduce the mandatory minimum sentences for various crimes. Section 401 of the Fi rst Step Act reduces the mandatory minimum sentence fo r violations of 21 U.S.C. § 841(b)(1)(A)(viii)––Jackson’s count 4––from life to twentyfi ve years. II. DiscussionJackson argues that the district court should not have admi tt ed the CS’s recordings without the CS present to testify and should not have allowed inve stigators to testify about the recordings. Jackson also argues that his sentence should be reduced because the First Step Act took e ff ect shortly after his sentencing.

A. Admi tt ing the Recordings and Related Testimony

We review de novo whether anevidentiary ruling violates the Confrontation Clause of the Sixth Amendment and review other evidentiary rulings for abuse of discretion. See United States v. Wright, 651 F.3d 764, 773 (7th Cir. 2011); United States v. Prude , 489 F.3d 873, 878 (7th Cir. 2007). Jackson presents three argumen ts against the admission of the recordings during his trial: (1) the government failed tolay the appropriate foundation before the recordings were admi tt ed; (2) the investigators should not have been allowed to “narrate” portions of the record ings to describe their impressions; and (3) the admission of the recordings without the CS’s presence and testimony violated the Confrontation Clause.6 No. 18-3534

1. FoundationJackson contends that the government failed to lay the appropriate foundation for the re cordings and the chain of custody of physical evidence beca use “[the CS] is the only one who could give testimony about the chain of custody of the evidence.” Jackson, however, fails to challenge the extensive eyewitness testimony provided by investigators supportingthe chain of custody and laying the foundation for the admission of both the recordings and physical evidence.

Under Federal Rule of Evidence 901(a), “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence su ffi cient to support a fi nding that the item is what the proponent claims it is.” Jackson has not identi fi ed any meaningful lapse or fl aw in the testimony authenticating the evidence entered in his trial, and he has not rebu tt ed the investigators’ eyewitness recollections. The district court did not abuse its discretion in admi tt ing the recordings or the other evidence challenged.

2. Investigators’ Testimony Jackson brie fl y posits that the investigators’ “narrative” testimony about the CS’s recordings was inappropriate: “even if the district court correctly admi tt ed the videos without [the CS’s] presence at trial, it erred when it allowed O ffi cer Jayson Murbarger and O ffi cer Glen Rountree to narrate signi fi cant portions of the videos when th ere was a less prejudicial means to present the same evidence–n amely the testimony of [the CS].” Jackson does not identify any speci fi c testimony as “prejudicial,” let alone unfairly prejudicial, see Fed. R. Evid. 403, so the argument fails.No. 18-3534 7

3. Confrontation Clause Jackson further asserts that “[t]he district court erred when it allowed the government to introduce videos made by the [CS] as evidence without requiring him to testify,” arguing that this decision violated his Sixth Amendment right of confrontation and is contrary to the Supreme Court’s decision in Crawford v. Washington , 541 U.S. 36 (2004). Generally, “in the context of the admission of testimonialhearsay in criminal trials, the Sixth Amendment’s Confrontation Clause bars the admission of such testimonial statements unless the declarant is unavailable and the defendant had a prior opportunity for cross-examination.” United States v. Foster, 701 F.3d 1142, 1150 (7th Cir. 2012) (citation and internal quotation marks omi tt ed). The Confrontation Clause applies to both in-court and out-of-court statements. Crawford, 541 U.S. at 50–51. According to Jackson, the recordings constituted out-of-court testimonial st atements and should not have been admi tt ed, as the CS was in government custody and Jackson never had the opportunity to cross-examine him. Jackson ignores, however, that not all out-of-court testimonial statements implicate the Confrontation Clause. Crawford reiterated the longstan ding principle that the Confrontation Clause “does not bar the use of testimonial statements for purposes other th an establishing the truth of the ma tt er asserted.” Id. at 59 n.9. Jackson has not identi fi ed any statement made by the CS on the recordings that was being o ff ered for the truth of the ma tt er asserted. Indeed, Jackson fails to challenge any speci fi c statement of the CS; instead, he objects to the admission of the recordings as a whole. The district court allowed the reco rdings into evidence on the ground that the CS’s words were not being o ff ered for the8 No. 18-3534

truth of the ma tt er asserted or any inappropriate purpose and noted that Jackson had not identi fi ed any statement where the CS “put words into Jackson’s mouth.” On appeal, Jackson still has not pointed to any statement admi tt ed for any purpose beyond adding context to Jackson’s own statements. “The admission of recorded conversations between informants and defendants is permissible where an informant’s statements provide context for the defendant’sown admissions. [S]tatements providing context for other admissible statements are not hear say because they are not offered for their truth.” Foster, 701 F.3d at 1150 (citation and internal quotation marks omi tt ed). The district court’s use of a limiting instruction (telling the jury that the CS’s statements co uld not be considered for theirtruth, but only to provide context to Jackson’s own statements), further supports the prop riety of the recordings’ admission. Id. at 1152 (noting that a dist rict court’s limiting instruction was relevant to its determination that the Confrontation Clause was not violated: “[T]he jury was provided with instructions by the court indica ting that the CI’s recordedstatements were not to be considered for the truth of the matter asserted, but instead only to provide context for the defendant ʹ s admissions.”). United States v. Gaytan is instructive. 649 F.3d 573 (7th Cir. 2011). There, we held that “the district court properly admitted [the CS’s] out-of-court stat ements—not for their truth but to contextualize Gaytan’s own statements without pu tt ingwords in his mouth. There was no Confrontation Clause violation.” Id. at 580. The Gaytan district court had provided limiting instructions to the jury: “The con fi dential informant’sNo. 18-3534 9

statements are o ff ered only to provide context for the defendant’s statements, and are not to be considered for the truth of the ma tt ers asserted.” At oral argument, counsel for Jackson a tt empted to distinguish Gaytan from this case, noting that in Jackson’s case the judge instructed the ju ry that “[t]he con fi dential source’s statements and questions standing alone are not evidence of the defendant ʹ s guilt” (emphasis added). Jackson’s counsel argued that the use of the phras e “standing alone” materially di ff ered from the instructions in Gaytan because it implicitly invited the jury to consider th e CS’s statements as evidence when viewed in conjunction with other evidence. 1 This constitutes mere semantics. The trial court’s instruction stated a logical corollary of what we have already determined is an acceptable use of a CS’s out-of-c ourt statements: to provide context to the defendant’s own statements.As Jackson has not singled out any statement of the CS offered for the truth of the ma tt er asserted, and because the district court provided an appropriate limiting instruction to the jury, there are no grounds to ho ld that Jackson’s right to confrontation was violated.

B. First Step Act We review questions of law a ff ecting sentencing de novo, Foster, 701 F.3d at 1156, and review a sentence’s reasonableness for abuse of discretion, United States v. Vizcarra , 668 F.3d 516, 527 (7th Cir. 2012). Jackson challenges his mandatory life sentence on count 4, arguing that the passage of th e First Step Act a mere twenty-

1 Jackson had not made this argument in briefing.10 No. 18-3534

fi ve days after his sentencing retroactively made the life sentence unjust, pointing out that “the trial judge stated on the record ‘my hands as a judge are tied as to what your sentence should be.’” Jackson’s appeal of this issue is unavailing. We recently held that the First Step Act is not retroactive: it only applies to sentences imposed after its execution. In United States v. Pierson , as in this case, the First Step Act followed the defendant’s sentencing while the case was still on appeal. 925 F.3d 913, 927 (7th Ci r. 2019). Pierson, like Jackson, received a mandatory life sentence for violating 21 U.S.C. § 841(b)(1)(A)(viii). Similarly, Pierson argued that the First Step Act’s reduction of the mandatory minimum sentence from life to twenty- fi ve years should apply to him. We disagreed, noting that the First Step Act only applies to sentences “imposed” after its execution, and holding that the imposition of a sentence occu rs on the date of sentencing in the trial court itself (not, as Pierson maintained, after an appeal’s resolution): “Any reductio n in criminal penalties or in a Sentencing Guideline can pose di ffi cult line-drawing in applying the reduction to pending cases. ... In the First Step Act,Congress chose language that points clearly toward [the result that] the date of sentencing in the district court controls application of the new, more lenient terms.” Id. at 927–28. Here, as in Pierson , the sentence was imposed “when the district court sentenced the defendant, regardless of whether he appealed a sentence that was consistent with applicable law at that time it was imposed.” Id. at 928. Therefore, the First Step Act does not apply to Jackson’s sentence, imposed prior to the Act, meaning the Act cannot justify a reduction.No. 18-3534 11

Additionally, the district judg e’s pretrial statement that his hands were tied in relation to a mandatory life sentence on count 4 does not support vacating Jackson’s sentence; in fact, the entire colloquy shows Jackson accepting the risk of such a sentence in proceeding to trial. The colloquy occurred immediately before trial, and in it the judge described to Jackson the e ff ect of the government’s information establishing Jackson’s prior drug convictions: THE COURT: Mr. Sims, have you had a chance to review the second 851 enhancement that ʹ s been fi led and to talk with your client about the impact it would have on Count 4 in the event the jury fi nds Mr. Jackson guilty of Count 4? Did you relay to him, as I did, that he ʹ d be looking at mandatory life imprisonment? DEFENSE COUNSEL: Yes, Your Honor, I did.THE COURT: And no parole in the federal system. You understand that, Mr. Jackson? THE DEFENDANT: Yes, I do. DEFENSE COUNSEL: Yes, Your Honor, and against my advice, my client has elected to go to trial. THE COURT: Is that correct, Mr. Jackson? THE DEFENDANT: Yes, it is, Your Honor. THE COURT: Now, you un derstand that if you go to trial and if you ʹ re found guilty of Count 4, that my hands as a judge are tied as to what your sentence would be? You understand that? THE DEFENDANT: Yes, I do, Your Honor.12 No. 18-3534

Contrary to Jackson’s claims, th e judge’s statement that his “hands as a judge are tied” does not demonstrate that such a sentence was unjust. In contex t, the judge was warning Jackson about the potential conseque nces of proceeding to trial, and explicitly making clear to Jackson that he would have tosentence Jackson to life were he found guilty on count 4. Jackson has provided no authority to support the proposition that a judge describing mandatory sentences in a pretrial hearing indicates an unreasonable punishment.Finally, Jackson’s mandatory life sentence is not unreasonable as it was within the Guide lines range at the time of sentencing. “A sentence within a properly calculated guidelines range is presumed to be reason able; it is the defendant’s burden to overcome the appellate presumption.” Vizcarra , 668 F.3d at 527. Jackson insists that the passage of the First StepAct shows that the government knew the mandatory life sentence on count 4 was unfair. Wh ile the Act demonstrates thatCongress wished to revise certain mandatory minimum sentences, it does not follow that Congress intended to brand sentences carried out under the prior framework as unreasonable.

III. Conclusion For the foregoing reasons, we A FFIRM the judgment of the district court.