FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 11-30147 Plaintiff-Appellee,

D.C. No.

v.  3:09-cr-00170-MO-1

JAMES A. JACKSON,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, District Judge, Presiding

Argued and Submitted

July 12, 2012—Portland, Oregon

Filed October 11, 2012

Before: Betty B. Fletcher and Harry Pregerson,

Circuit Judges, and Consuelo B. Marshall,

Senior District Judge.*

Per Curiam Opinion

*The Honorable Consuelo B. Marshall, Senior District Judge for the

U.S. District Court for the Central District of California, sitting by designation. 

12239
COUNSEL

Robert A. Weppner, Portland, Oregon, for appellant James

Albert Jackson.

Kelly A. Zusman, Assistant United States Attorney, Portland,

Oregon, for appellee United States of America.

OPINION

PER CURIAM:

Defendant-Appellant James Albert Jackson (“Jackson”)

appeals the district court’s denial of his motion to dismiss the

indictment based on the Speedy Trial Act, 18 U.S.C. §§ 3161,

3162, and the use of a two-level sentencing enhancement for

use of a computer. This court has jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

Appellant James Albert Jackson (“Appellant”) met a 14-

year-old minor, referred to as AK, on the streets of Seattle,

UNITED STATES v. JACKSON 12241
Washington, where AK was engaged in prostitution and

cocaine distribution. After giving AK alcohol and having sex

with her multiple times, Appellant convinced AK to move

with him to Portland, Oregon so the two could sell ecstacy.

Once in Portland, Appellant told AK that she would have

to prostitute herself to pay for their motel room. Appellant

beat and choked her during this first night in Portland. For the

next three months, AK earned approximately $400-$600 per

day as a prostitute and gave her earnings to Appellant. Appellant asked co-defendant Donnico Johnson and Johnson’s prostitute, Lisa Miles, to take and post photos of AK on an online

advertisement on the website craigslist.com. 

After AK was arrested twice for prostitution, she told the

authorities about Appellant and co-defendant Johnson, who

were then arrested. Appellant was originally charged on May

6, 2009, and arrested in Texas on May 11, 2009. A superseding indictment was filed on June 24, 2009. Appellant was

charged with “sex trafficking” in violation of 18 U.S.C.

§§ 1591(a), (b)(1). Specifically, Appellant was charged under

these sections with “knowing that force, fraud, and coercion

would be used to cause [a minor] ‘A.K.’ to engage in commercial sex acts . . . [he] did, in and affecting interstate commerce, recruit, entice, harbor, transport, provide and obtain by

any means, ‘A.K.’; and . . . did benefit, financially . . . from

participating in a venture which engaged in commercial sex

acts.” 

Appellant moved to continue the trial date multiple times

in 2009, which the trial court granted each time. On January

20, 2010, Appellant’s attorney filed a motion for a competency hearing as to his client. On January 29, the district court

ordered that Appellant undergo a competency evaluation by

a local psychologist to be agreed upon by counsel for the parties. On March 1, Appellant’s attorney filed an affidavit

regarding Appellant’s competency and the competency hearing convened. The district court found Appellant incompetent

12242 UNITED STATES v. JACKSON
to assist in his own defense on March 4, 2010, and ordered

that “trial proceedings in this matter pertaining to defendant

James Albert Jackson are hereby suspended pending the completion of the § 4241 evaluation . . . .” 

The court ordered that “the Attorney General shall hospitalize [Appellant] in a suitable facility for a reasonable period of

time, not to exceed four months, as is necessary to determine

if there is a substantial probability that in the foreseeable

future Mr. Jackson will attain the capacity to permit trial proceedings . . . .” The order also instructed “that the U.S. Marshal’s Service shall take such reasonable measures to ensure

that the travel and transportation of defendant James Albert

Jackson to the custody of the Attorney General shall be conducted in a reasonable manner and within a reasonable time

period.” 

The parties and the court apparently discussed transport

issues at a May 10, 2010 status conference, but the conference

was not reported. Appellant filed a motion to dismiss on July

15, 2010 after Appellant still had not been transferred to a

federal medical center on the grounds of the Speedy Trial Act,

18 U.S.C. §§ 3161, 3162. The record does not contain evidence as to the reason for the delay in transferring Appellant.

Within six days of filing his motion to dismiss, Appellant was

transported from Oregon to the Bureau of Prison’s medical

facility in Springfield, Missouri. The court denied the motion

on September 17, 2010 without oral argument. 

A competency hearing was held on December 14, 2010, at

which the district court found Appellant competent and set a

new trial date. Appellant requested and was granted another

continuance of the trial on January 4, 2011. Appellant pleaded

guilty unconditionally to the first count without a plea bargain

on March 3, 2011. The government moved to dismiss the

remaining five counts at a June 3, 2011 sentencing hearing.

The district court imposed a 480-month sentence, plus five

UNITED STATES v. JACKSON 12243
years of supervised release, which included a two-level sentence enhancement for use of a computer. 

II. APPELLANT WAIVED HIS RIGHT TO APPEAL

THE DENIAL OF HIS MOTION TO DISMISS

We review de novo issues involving waiver, United States

v. Pacheco-Navarette, 432 F.3d 967, 970 (9th Cir. 2005), and

the district court’s denial of a motion to dismiss for noncompliance with the Speedy Trial Act, United States v. PenaCarrillo, 46 F.3d 879, 882 (9th Cir. 1995). 

[1] An unconditional guilty plea waives all nonjurisdictional, antecedent defects. Tollett v. Henderson, 411

U.S. 258, 267 (1973) (“When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the

offense with which he is charged, he may not thereafter raise

independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

He may only attack the voluntary and intelligent character of

the guilty plea. . . .”); United States v. Lopez-Armenta, 400

F.3d 1173, 1175 (9th Cir. 2005) (“[I]t is well-settled that an

unconditional guilty plea constitutes a waiver of the right to

appeal all nonjurisdictional antecedent rulings and cures all

antecedent constitutional defects.”). This principle applies to

Speedy Trial Act challenges. See, e.g., United States v. Bohn,

956 F.2d 208, 209 (9th Cir. 1992) (“By pleading guilty, Bohn

waived his right to assert a violation of the Speedy Trial Act.

. . . The right to a speedy trial under the Speedy Trial Act is

nonjurisdictional.”). 

This Court maintains jurisdiction to consider the appeal,

but typically will dismiss the appeal when the government

properly and timely raises the waiver. See, e.g., United States

v. Jacobo Castillo, 496 F.3d 947, 953-54 (9th Cir. 2007)

(“We recently reached a similar conclusion in determining

that Federal Rule of Appellate Procedure 4(b) is a forfeitable,

nonjurisdictional claim-processing rule. . . . We ultimately

12244 UNITED STATES v. JACKSON
dismissed the appeal, however, because we found that the

government had properly raised the untimeliness argument,

and under the rules we were required to dismiss.”) (en banc).

[2] Appellant was represented by counsel in the district

court. Because the plea was unconditional despite the availability of a conditional plea pursuant to Federal Rule of Criminal Procedure Rule 11(a)(2), Appellant has waived his right

to appeal non-jurisdictional, antecedent defects including his

right to assert a violation of the Speedy Trial Act. We therefore affirm the district court’s denial of Appellant’s Motion to

Dismiss based on the Speedy Trial Act. 

III. THE TRIAL COURT COMMITTED NO ERROR

IN ENHANCING APPELLANT’S SENTENCE FOR

USE OF A COMPUTER

We review de novo a district court’s interpretation and

application of the Sentencing Guidelines. United States v.

Nielsen, 371 F.3d 574, 582 (9th Cir. 2004); United States v.

Velasco-Medina, 305 F.3d 839, 850 (9th Cir. 2002). When a

defendant raises an issue on appeal that was not raised before

the district court, however, “his claim of error is subject to a

limited appellate review for plain error . . . . Under that

review, relief is not warranted unless there has been (1) error,

(2) that is plain, and (3) affects substantial rights.” Jones v.

United States, 527 U.S. 373, 389 (1999). The Ninth Circuit

will “reverse for plain error only if an error was obvious,

affected substantial rights, and a miscarriage of justice would

otherwise result.” United States v. Doss, 630 F.3d 1181, 1193

(9th Cir. 2011) (as amended).

First, we find that Appellant did not raise this specific argument at the district court. Ninth Circuit precedent requires that

a specific argument clearly be raised in the district court. See,

e.g., United States v. Baker, 63 F.3d 1478, 1500 (9th Cir.

1995) (“A challenge to an adjustment of an offense level must

be raised specifically at sentencing in order to afford the disUNITED STATES v. JACKSON 12245
trict court an opportunity to correct any potential error.”);

United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.

1990) (“Thus, a party fails to preserve an evidentiary issue for

appeal not only by failing to make a specific objection, . . .

but also by making the wrong specific objection.”). 

While Appellant objected to the computer-use enhancement

in his Sentencing Position Paper, he did so on the grounds that

Appellant’s involvement with the use of a computer was incidental and vicarious in nature because it was his co-defendant,

and not Appellant himself, who used the computer.1 Appellant

did not raise the specific Guideline-interpretation argument

that he now raises on appeal. We therefore apply a plain-error

standard. 

[3] The district court enhanced Jackson’s sentence by two

levels because he had allegedly used a computer to facilitate

the commission of the prohibited sex trafficking. The Federal

Sentencing Guidelines state:

If the offense involved the use of a computer or an

interactive computer service to (A) persuade, induce,

entice, coerce, or facilitate the travel of, the minor to

engage in prohibited sexual conduct; or (B) entice,

encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor, increase by 2

levels.

U.S.S.G. § 2G1.3(b)(3). Part (B) of § 2G1.3(b)(3) would

seemingly apply to the facts of this case because it contemplates using a computer to entice or solicit a third party—the

“person”—to engage in prohibited sexual conduct with the

minor. The Commentary to this Guideline indicates, however,

that § 2G1.3(b)(3) would not apply to the facts of this case

1Appellant did not brief before this Court this argument regarding the

incidental and vicarious nature of the use of the computer. 

12246 UNITED STATES v. JACKSON
because the computer was not used to communicate directly

with the minor or her custodian:

Subsection (b)(3) is intended to apply only to the use

of a computer or an interactive computer service to

communicate directly with a minor or with a person

who exercises custody, care, or supervisory control

of the minor. Accordingly, the enhancement in subsection (b)(3) would not apply to the use of a computer or an interactive computer service to obtain

airline tickets for the minor from an airline’s Internet

site.

USSG § 2G1.3 cmt. n. 4. 

This Circuit has not yet ruled on whether the plain language

of subsection (B) of USSG § 2G1.3(b)(3) is inconsistent with

the Application Note that follows the Guideline. We look to

other circuits for guidance. 

The Seventh Circuit considered a similar fact pattern and

found the commentary to be authoritative. In United States v.

Patterson, 576 F.3d 431 (7th Cir. 2009), cert. denied, 130

S.Ct. 1284 (2010), the defendant brought a 14-year-old from

out of state to Illinois so that she could work as a prostitute.

Another female working as a prostitute for the defendant’s

half-brother posted prostitution advertisements for the victim

on internet sites such as craigslist.com. Patterson, 576 F.3d at

434. The Seventh Circuit ruled that the enhancement was

improper because there was no direct computer communication with the minor. Id. 

The government here attempts to distinguish this case from

Patterson by noting that the ads in Patterson were placed on

the computer “by a third party” and that the government in

Patterson conceded on appeal that the use-of-a-computer

enhancement was improper. The Seventh Circuit did not rule

based on these factors, and instead held that despite that lanUNITED STATES v. JACKSON 12247
guage of subsection (B), “[t]he commentary . . . provides that

‘[s]ubsection (b)(3) is intended to apply only to the use of a

computer or an interactive computer service to communicate

directly with a minor or with a person who exercises custody,

care, or supervisory control of the minor.’ ” Patterson, 576

F.3d at 443 (quoting USSG § 2G1.3 cmt. n. 4). “In this case,

no computers were used to ‘communicate directly’ with the

victim or the victim’s custodian, so the enhancement does not

apply.” Id.2

[4] If this Court were to find that the plain language of

subsection (B) of USSG § 2G1.3(b)(3) is inconsistent with the

Application Note that follows the Guideline, the plain language of the Guideline would control. “[C]ommentary in the

Guidelines Manual that interprets or explains a guideline is

authoritative unless it . . . is inconsistent with, or a plainly

erroneous reading of, that guideline.” Stinson v. United States,

508 U.S. 36, 38 (1993). We need not decide whether the plain

language of subsection (B) of USSG § 2G1.3(b)(3) is in fact

inconsistent with the Application Note that follows the Guide2The Eleventh Circuit considered a similar situation in an unpublished

opinion and opted not to make a finding as to the applicability of the sentence enhancement. See United States v. Madkins, 390 F. App’x 849, 852

(11th Cir. 2010). Considering the argument under a plain error standard,

the court found that regardless of the guideline’s applicability, there was

no showing that the district court’s possible error affected the defendant’s

substantial rights: 

Although a persuasive case has been made that the commentary

is at odds with the plain language of this enhancement, we need

not decide whether the commentary is inconsistent with or a

plainly erroneous reading of the guideline, for the case can be

decided on a narrower ground. Madkins has not shown that this

error affected his substantial rights. Nothing in the record suggests that the district court would have imposed a different sentence absent this enhancement. At most, the impact of any

revision to Madkins’s guideline range is speculative, and Madkin

cannot carry his burden to show prejudice or a miscarriage of justice. 

Id. 

12248 UNITED STATES v. JACKSON
line, as this case can be decided on narrower grounds. We

hold that the district court did not commit any obvious or

plain error in this case. In the absence of controlling authority

stating otherwise, a district court could reasonably find that an

inconsistency does exist and interpret the plain language of

subsection (B) of USSG § 2G1.3(b)(3) to apply to the facts of

this case. We leave district courts in this Circuit with the discretion, however, to decide whether this Application Note

creates an inconsistency with the plain language of subsection

(B) of USSG § 2G1.3(b)(3). 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

denial of Jackson’s motion to dismiss the indictment and

AFFIRM Jackson’s conviction. We also AFFIRM the district

court’s sentencing enhancement for use of a computer. The

judgment of the district court is AFFIRMED. 

UNITED STATES v. JACKSON 12249