UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 07-5035

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JEROME BRYANT JACKSON,

Defendant - Appellant.

Appeal from the United States District Court for the Middle

District of North Carolina, at Durham. William L. Osteen, Jr.,

District Judge. (1:07-cr-00066-WO)

Submitted: September 29, 2008 Decided: October 8, 2008

Before WILKINSON and MICHAEL, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Christopher R. Clifton, GRACE, TISDALE & CLIFTON, P.A., WinstonSalem, North Carolina, for Appellant. Anna Mills Wagoner, United

States Attorney, Michael A. DeFranco, Assistant United States

Attorney, Greensboro, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Pursuant to a plea agreement, Jerome Bryant Jackson pled

guilty to possession of a firearm by a convicted felon, in

violation of 18 U.S.C. §§ 922(g), 924(e) (2000). He was sentenced

to 185 months’ imprisonment and a five-year term of supervised

release. On appeal, counsel has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), stating that, in his

opinion, there are no meritorious grounds for appeal, but raising

the issue of whether the federal prosecution violated the Double

Jeopardy Clause. The Government has responded, and Jackson has

filed a pro se supplemental brief. We affirm.

Defense counsel argues that Jackson’s federal prosecution

violates the prohibition against double jeopardy because he was

previously charged by the state of North Carolina for the same

conduct that formed the basis for his federal prosecution. The

Double Jeopardy Clause protects a defendant from repeated

prosecution for the same offense, including the right to have guilt

or innocence decided in a proceeding once jeopardy has attached.

Oregon v. Kennedy, 456 U.S. 667, 672-73 (1982). Jeopardy attaches

in a jury trial when the jury is empaneled and sworn. Crist v.

Bretz, 437 U.S. 28, 37-38 (1978); Serfass v. United States, 420

U.S. 377, 388 (1975). 

Although the Double Jeopardy Clause generally protects

against successive prosecutions for the same offense, the dual
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sovereignty exception usually eliminates the double jeopardy bar to

a federal prosecution after a state prosecution. See Heath v.

Alabama, 474 U.S. 82, 89 (1985) (“[T]he Court has uniformly held

that the States are separate sovereigns with respect to the Federal

Government because each State’s power to prosecute is derived from

its own ‘inherent sovereignty,’ not from the Federal Government.”)

(citation omitted); Rinaldi v. United States, 434 U.S. 22, 28

(1977) (“[T]he Constitution does not deny the State and Federal

Governments the power to prosecute for the same act.”). 

The only recognized exception to the dual sovereignty doctrine

is the sham prosecution exception, which applies when federal and

state prosecutors have manipulated the system in order to achieve

the equivalent of a second prosecution. This exception requires

proof that Jackson’s federal prosecution was “a sham and a cover”

for a second state prosecution. Bartkus v. Illinois, 359 U.S. 121,

124 (1959). We find no evidence of a sham prosecution; we

therefore find Jackson’s double jeopardy claim is without merit. 

In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal. We further find Jackson’s claims regarding his armed

career criminal status raised in his pro se supplemental brief

without merit. We therefore affirm Jackson’s conviction and

sentence. This court requires that counsel inform Jackson, in

writing, of his right to petition the Supreme Court of the United
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States for further review. If Jackson requests that a petition be

filed, but counsel believes that such a petition would be

frivolous, then counsel may move in this court for leave to

withdraw from representation. Counsel’s motion must state that a

copy thereof was served on Jackson. We dispense with oral argument

because the facts and legal contentions are adequately presented in

the materials before the court and argument would not aid the

decisional process.

AFFIRMED