United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted August 19, 2019

Decided August 19, 2019

Before

FRANK H. EASTERBROOK, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

No. 17-2727

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ANDRE W. JACKSON,

Defendant-Appellant.

Appeal from the United States District 

Court for the Southern District of Indiana, 

Terre Haute Division.

No. 2:15-cr-00013-WTL-CMM

William T. Lawrence,

Judge.

O R D E R

Police responding to a 9-1-1 call came upon a man who had been shot in the leg,

and they later found shotgun shells in Andre Jackson’s yard. Jackson, a convicted felon, 

admitted that he had fired the weapon. A jury found Jackson guilty of being a felon in 

possession of a firearm, 18 U.S.C. § 922(g)(1), and a district judge sentenced him to 

210 months in prison (the bottom of the applicable Sentencing Guidelines range). 

Jackson appealed, but his appointed counsel asserts that the appeal is frivolous, and she 

moves to withdraw. See Anders v. California, 386 U.S. 738 (1967). Jackson counters that 

there are nonfrivolous grounds for an appeal. See CIR. R. 51(b). Counsel explains the 

nature of the case and the issues that the appeal likely would involve. Her analysis 

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1
No. 17-2727 Page 2

appears thorough, so we limit our review to the topics that she and Jackson discuss. 

See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014).

Counsel first considers arguing that the district judge violated Federal Rule of 

Evidence 404(b)’s prohibition on propensity evidence when he admitted evidence that 

Jackson fired a shotgun. Federal Rule of Evidence 404(b)(1) bars evidence of other acts 

to show the defendant’s tendency to behave in a certain way, but the same evidence 

“may be admissible for another purpose,” FED R. EVID. 404(b)(2). Jackson, however, was 

charged with illegally possessing a “firearm” (defined as “any weapon ... which will or 

is designed to or may readily be converted to expel a projectile by the action of an 

explosive,” 18 U.S.C. § 921(a)(3)), and he never offered to stipulate that the shotgun 

indeed was a firearm, so testimony that he fired the shotgun is “direct evidence” that 

the gun fell within the statutory definition. See United States v. Carson, 870 F.3d 584, 

599–600 (7th Cir. 2017). Counsel thus properly rejects this argument. 

Counsel next considers whether Jackson might raise three arguments relating to 

pretrial matters and properly concludes that, even if not waived, they are frivolous. 

First, counsel asks whether Jackson could challenge the search of his residence on 

grounds that his wife consented to the search under duress (threat of arrest). Yet there is 

no evidence of duress, and a third party with common authority over the space may 

consent to a search. See United States v. Matlock, 415 U.S. 164, 171 (1974); United States v. 

Witzlib, 796 F.3d 799, 801–02 (7th Cir. 2015). Second, counsel discusses whether Jackson 

could argue that his videotaped confession was coerced, as he was intoxicated during 

the police interview. True, “[w]hen the interrogating officers reasonably should have 

known that a suspect is under the influence of drugs or alcohol, a lesser quantum of 

coercion may be sufficient to call into question the voluntariness of the confession.”

United States v. LeShore, 543 F.3d 935, 940–41 (7th Cir. 2008) (quoting United States v. 

Haddon, 927 F.2d 942, 946 (7th Cir.1991)). But one officer testified that Jackson did not 

appear impaired and another opined that Jackson “was more than able to take care of 

himself.” Moreover, intoxication alone does not make a confession involuntary, United 

States v. Walker, 272 F.3d 407, 413 (7th Cir. 2001), and counsel does not point to other 

evidence of coercion. Third, counsel asks whether Jackson could attack his indictment

on grounds that his wife testified before the grand jury, violating his spousal 

testimonial privilege. That privilege, however, belongs only to his wife, as the 

defendant’s spouse, so he cannot assert it. See United States v. Brock, 724 F.3d 817, 823 

(7th Cir. 2013).
No. 17-2727 Page 3

Counsel then turns to Jackson’s conviction and considers three more challenges 

that she correctly decides would be frivolous. First, she (and Jackson) considers whether 

Jackson could challenge the denial of his motion for a mistrial after a government 

witness violated the judge’s in limine ruling by mentioning the shooting victim. But the 

witness’s statement was “inadvertent, isolated, and ambiguous,” United States v. Long, 

748 F.3d 322, 328 (7th Cir. 2014), and the judge offered to provide a curative instruction

that could have reduced the likelihood of prejudice, see United States v. Curry, 538 F.3d 

718, 728 (7th Cir. 2008). Second, counsel considers challenging the relevance of satellite

images of Jackson’s home, which the judge admitted as evidence. But a judge does not 

abuse his discretion when admitting such evidence if, like here, a witness subject to 

cross examination testified that the images accurately depict the scene on the date in 

question. See United States v. Cejas, 761 F.3d 717, 723 (7th Cir. 2014). Third, counsel

considers challenging the competency of a witness who was taking anxiety medication

on the date of his testimony. But counsel rightly rejects this as challenge as frivolous 

because there was no evidence that the medication impaired the witness’s ability to 

testify. See FED. R. EVID. 601; United States v. Terzakis, 854 F.3d 951, 957 (7th Cir. 2017).

Counsel also asks whether Jackson could attack the judge’s denial of his motion 

for a judgment of acquittal, but she correctly determines that the attack would be futile. 

There are four elements to the charged offense: (1) status, (2) possession, (3) jurisdiction 

(“in or affecting commerce”), and (4) a firearm. See 18 U.S.C. § 922(g); Rehaif v. United 

States, 139 S. Ct. 2191, 2195–96 (2019). The government provided ample evidence in 

support of the verdict. See FED. R. CRIM. P. 29; United States v. Cherry, 920 F.3d 1126, 1133 

(7th Cir. 2019). First, Jackson stipulated that he was a felon. Second, he admitted that he 

possessed a shotgun and three witnesses saw him holding something that looked like a 

shotgun. Third, a witness testified that the shotgun came from another state. Fourth, 

Jackson admitted to firing the shotgun and police found a shotgun and shells outside 

his home. 

Both counsel and Jackson next consider arguing that the judge wrongly found 

him to be an armed career criminal based on three prior convictions for violent felonies, 

18 U.S.C. § 924(e). Counsel, however, properly rejects the argument as frivolous because

Jackson has at least three such convictions: Illinois residential burglary in 1990, 

see United States v. Stitt, 139 S. Ct. 399, 406 (2018); Smith v. United States, 877 F.3d 720, 725 

(7th Cir. 2017); Illinois robbery in 1993, see Klikno v. United States, 928 F.3d 539, 548 

(7th Cir. 2019); Illinois aggravated vehicular hijacking in 1998, see United States v. Sykes, 

914 F.3d 615, 619–20 (8th Cir. 2019) (citing People v. Jackson, 2016 IL App (1st) 133823, 

¶ 50 (“[V]ehicular hijacking could be fairly described ... as robbery of ... a motor 
No. 17-2727 Page 4

vehicle.”)); and Indiana robbery in 2010, see United States v. Duncan, 833 F.3d 751, 758 

(7th Cir. 2016).

Counsel next queries whether the judge wrongly assigned him three criminal 

history points based on a reference in the presentence investigation report to an Illinois 

attempted burglary conviction that Jackson denies committing. But counsel aptly 

determines that it would be frivolous to press the matter. The judge reviewed the

indictment and judgment for that offense and observed that someone named Andre 

Jackson who shared Jackson’s birthday committed it, and Jackson’s bare denial that he 

committed a previous offense is not enough to doubt that conclusion. See United States v. 

Heckel, 570 F.3d 791, 796 (7th Cir. 2009).

Counsel also assesses whether she could nonfrivoulously attack the 

reasonableness of the 210-month sentence, and rightly concludes she could not. We 

would presume the sentence to be reasonable because it falls within the calculated 

Guidelines range of 210 to 262 months (based on an offense level of 33 and a criminal 

history category of V, see U.S.S.G. Ch. 5 Pt. A (sentencing table)). See Rita v. United 

States, 551 U.S. 338, 347 (2007); United States v. Mykytiuk, 415 F.3d 606, 608 (7th Cir. 

2005). Moreover, the judge in this case reasonably considered the statutory sentencing 

factors, 18 U.S.C. § 3553(a), emphasizing Jackson’s history and characteristics, including 

his upbringing (he had an abusive adoptive mother, was “raised on the streets” of a 

“crime infested” neighborhood, and left home at age 15), his health (“many” physical 

and mental health challenges), his drug use (alcohol and cocaine dependence), his age 

(57 years old at sentencing), and his criminal history (“excessive and extensive”). 

Finally, counsel considers whether Jackson could argue that his trial attorney 

provided ineffective assistance, but she properly concludes that the challenge should be 

reserved for a collateral action, so that Jackson could develop a fuller record. See 28 

U.S.C. § 2255; Massaro v. United States, 538 U.S. 500, 504 (2003); United States v. Flores, 

739 F.3d 337, 340–41 (7th Cir. 2014).

We GRANT counsel’s motion to withdraw and DISMISS the appeal.