In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3849

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HARVEY C. JACKSON IV,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06-CR-30136-DRH—David R. Herndon, Chief Judge.

ARGUED JANUARY 12, 2009—DECIDED FEBRUARY 18, 2009

Before EASTERBROOK, Chief Judge, and WILLIAMS and

SYKES, Circuit Judges.

EASTERBROOK, Chief Judge. Harvey Jackson pleaded

guilty to two drug crimes plus possessing firearms in

furtherance of a drug-trafficking offense. 18 U.S.C. §924(c).

Before being sentenced he sought to withdraw the plea

on the weapons count while leaving the guilty pleas on

other counts in place. The district court held a hearing,

concluded that Jackson’s testimony about the nature of

his lawyer’s advice (and the state of his own knowledge)
2 No. 07-3849

was dissimulation, and denied the motion. Jackson was

sentenced to a total of 87 months’ imprisonment—27 on

each drug conviction (to run concurrently), followed by

60 on the firearms charge.

Jackson does not press in this court his contention

that his lawyer misled him about the nature of the charges

and the likely consequences of a guilty plea. Instead he

contends that he is innocent of the charge because he

possessed the guns for his protection—and District of

Columbia v. Heller, 128 S. Ct. 2783 (2008), holds that the

Constitution’s second amendment entitles people to

have handguns in the home for self-protection.

The Court said in Heller that the Constitution entitles

citizens to keep and bear arms for the purpose of lawful

self-protection, not for all self-protection. Jackson was

distributing illegal drugs (cocaine and unlicensed

dextromethorphan hydrobromide tablets) out of his

home. The Constitution does not give anyone the right to

be armed while committing a felony, or even to have

guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer’s stash.

Jackson says that he lived in a dangerous neighborhood

and wanted to protect himself from burglars and other

marauders. That may be so, but his decision to operate

an illegal home business also matters. Suppose a federal

statute said: “Anyone who chooses to possess a firearm

in the home for self-protection is forbidden to keep or

distribute illegal drugs there.” Such a statute would be

valid, as Jackson’s lawyer conceded. And if Congress may

forbid people who possess guns to deal drugs, it may
No. 07-3849 3

forbid people who deal drugs to possess guns. The statements “if you have a gun, you can’t sell cocaine” and “if

you sell cocaine, you can’t have a gun” are identical.

So there is no constitutional problem with separating

guns from drugs, and the right question is whether the

record contains a factual basis for the plea of guilty.

Section 924(c) makes it a crime to possess a firearm “in

furtherance of” a drug-trafficking offense. Jackson

observes that agents found the guns in the bedroom of

his apartment, while the drugs were prepared, kept, and

sold in other rooms. His problem is that he has repeatedly said that he possessed the guns to protect

himself while at home—and it was from his home that he

distributed illegal drugs. The record contains a report by

a federal drug-control agent summarizing Jackson’s

statements and observing that a drug dealer who speaks

of “protection” means protection of the drug business,

for that is where the principal risk lies. (Drug dealers

are much more likely to be robbed by suppliers and

customers than a householder chosen at random is apt

to be the subject of burglary, because the suppliers and

customers know that the drug purveyor can’t turn to the

police for help; this makes dealers especially attractive

targets.) The written plea agreement states that “possession

[of the guns] was in furtherance of the drug crime described in count 2” (distributing cocaine). Jackson represented that he “agrees and admits” this element. In

open court the judge asked Jackson whether he had read

the plea agreement and stood by his representations;

Jackson (who is literate) said yes. That’s an adequate

factual basis for the plea. The judge also ensured that
4 No. 07-3849

Jackson had discussed the facts, the legal standards, and

potential defenses thoroughly with counsel.

At the hearing on his motion to withdraw the plea,

Jackson contradicted these representations. The judge

found that he had told the truth when entering the plea

and was lying in an attempt to get out of it. “[T]he

Court finds the only times that Jackson told the truth as

to this matter are in his Stipulation of Facts [in the plea

agreement] and during the Rule 11 hearing.” Jackson

should count himself lucky that he has not been

prosecuted for perjury, 18 U.S.C. §1621, or making inconsistent declarations under oath, 18 U.S.C. §1623(c).

There would be fewer self-serving and self-contradictory

efforts to avoid one’s commitments if prosecutors held

defendants to their statements when pleading guilty.

AFFIRMED

2-18-09