2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-14-2011

USA v. Anthony Jackson

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2593

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Recommended Citation

"USA v. Anthony Jackson" (2011). 2011 Decisions. Paper 1104.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2593

_____________

UNITED STATES OF AMERICA

v.

ANTHONY J. JACKSON

a/k/a

ANTHONY JACKSON

 Anthony Jackson,

 Appellant

_______________

Appeal from the United States District Court 

for the Western District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00338-1)

District Judge: Honorable Maurice B. Cohill

_______________

Submitted Under Third Circuit LAR 34.1(a)

May 12, 2011

Before: SMITH, CHAGARES AND VANASKIE, Circuit Judges

(Filed: June 14, 2011)

_______________

OPINION

_______________

VANASKIE, Circuit Judge.
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At issue on this appeal is whether the prison sentence imposed by the District 

Court at the bottom of Appellant Anthony Jackson’s advisory guidelines range is 

substantively unreasonable. We answer the question in the negative, and thus will affirm 

the District Court’s judgment.

I.

Because we write solely for the parties, we will only briefly summarize the 

necessary facts. On October 12, 2005, Pittsburgh Police officers noticed Jackson’s black 

Isuzu Rodeo with a Georgia license plate. An officer ran a routine check on the license 

plate and learned that the tag had been reported stolen. The officers pulled Jackson over. 

After asking Jackson to exit the vehicle, an officer explained that, according to his check 

on the license plate, the Georgia tag was stolen. Another officer looked into the vehicle

with his flashlight, where he observed a Bursa, Model 85, .380 caliber pistol, 

manufactured in Argentina, located in plain view on the floor in the front passenger area. 

The firearm had a fully loaded magazine with a round in the gun’s chamber. Jackson was 

subsequently charged as a felon in possession of a firearm in violation of 18 U.S.C. § 

922(g)(1).

On January 13, 2010, Jackson entered a guilty plea for possessing a firearm while 

a convicted felon. At the May 24, 2010 sentencing, the parties agreed that Jackson’s 

offense level was 12 and his criminal history category was V, thus yielding an advisory 

guidelines range of twenty-seven to thirty-three months’ imprisonment. The court denied 

Jackson’s requests to impose a sentence below the advisory guidelines range, and 
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imposed a twenty-seven-month term of imprisonment to be followed by three years of 

supervised release. Jackson timely appealed. 

II.

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have 

appellate jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. 

Jackson attacks only the substantive reasonableness of his sentence. “The party 

challenging the sentence bears the ultimate burden of proving its unreasonableness, and 

we accord great deference to a district court’s choice of final sentence.” United States v. 

Lessner, 498 F.3d 185, 204 (3d Cir. 2007) (citations omitted). As we noted in United 

States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009) (en banc), “if the district court’s 

sentence is procedurally sound, we will affirm it unless no reasonable sentencing court 

would have imposed the same sentence on that particular defendant for the reasons the 

district court provided.” 

The District Court’s responsibility is to “impose a sentence sufficient, but not 

greater than necessary,” 18 U.S.C. § 3553(a), to comply with the factors set forth in § 

3553(a)(2). Jackson makes two arguments concerning the District Court’s application of 

the sentencing factors set forth in 18 U.S.C. § 3553(a). First, Jackson asserts that the 

District Court failed to consider his responsibility to take care of family members. 

Second, Jackson claims that the District Court erred by giving undue weight to his 

criminal history and arrest record. Both of Jackson’s claims are belied by the record.

Jackson first argues that the District Court imposed a sentence greater than 

necessary because it did not adequately consider his family obligations. One of Jackson’s 
4

daughters died on February 16, 2009, leaving behind her daughter—Jackson’s 

granddaughter. Custody of the granddaughter was split between Jackson and his ex-wife, 

with the granddaughter living with each of them for six-month periods. In addition, 

Jackson took care of his seventy-four-year-old mother. 

At sentencing, the court observed that Jackson and his ex-wife “are splitting 

custody” of their granddaughter, and that each would care for her for six months of the

year. (A. 89.) Counsel for Jackson also asked the court to consider that Jackson had 

“agreed to take this responsibility for at least raising his granddaughter.” (Id. at 96.) No 

evidence was presented that Jackson’s ex-wife would be unable to care for the 

granddaughter while Jackson was incarcerated. Nor was there any evidence that 

Jackson’s granddaughter would suffer adverse long-term consequences by reason of his 

absence. Instead, it appears that Jackson pointed to the custody arrangement as showing 

that he was acting responsibly. 

As to Jackson’s mother, who resides in Columbus, Georgia, the District Court 

observed:

And, certainly, his mother wrote a very touching letter about 

the care he gives to her, but I also noted from the presentence 

report that he’s got three brothers who also live in Columbus, 

Georgia. I would hope that those three brothers would be in a 

position to help out with the mother, as well.

(Id. at 100.)

The District Court ultimately concluded, after “considering the various things 

we’ve heard this morning,” (id. at 104), that a twenty-seven-month term of imprisonment

was appropriate given “the history and background of the defendant.” (Id. at 106.) 
5

Although it may have been preferable for the District Court to explicitly mention its 

considerations of the custody arrangement, the failure to do so does not render the 

sentence substantively unreasonable, especially given the absence of any evidence of 

substantial harm to the granddaughter caused by Jackson’s absence. Moreover, the 

District Court adequately responded to Jackson’s argument concerning his mother. 

Jackson’s claim that the District Court did not sufficiently consider his family obligations

is thus without merit.

 Jackson’s other argument for challenging the reasonableness of his sentence 

pertains to the District Court’s comments on Jackson’s conviction and arrest record. The 

District Court stated:

[W]e have to consider [Jackson’s] twenty-four 

convictions. . . . Much higher [number] of convictions than 

we usually see. And there were thirteen other arrests which 

we . . . certainly don’t count. But they do give you some idea 

about the kind of a lifestyle that the gentleman’s living.

Actually, I think there were twelve, thirteen other 

arrests and twenty-five total arrests. Thirteen in the 

presentence report and then twelve mentioned under the 

category, other arrests. So, it’s certainly not a, not a good 

police rap. 

And, after considering the Guidelines and considering 

the statements which [defense counsel] has enumerated as 

reasons to grant a variance under 18 United States Code, 

Section 3553(a), I don’t feel there is anything to warrant such, 

such a variance.

 

(Id. at 100-01.) After announcing the twenty-seven month prison term, the District Court 

stated that the sentence “does adequately address . . . the history and background of the 

defendant,” explaining that it could not “disregard the extensive criminal history he’s 

had.” (Id. at 106.)
6

In imposing sentence, a District Court must, of course, give consideration to the 

defendant’s “history and characteristics.” 18 U.S.C. § 3553(a)(1). Consistent with this 

mandate, presentence investigation reports typically include information pertaining to 

arrests that do not result in convictions. In this case, Jackson did not object to the 

Presentence Report’s enumeration of his lengthy conviction and arrest record. 

It is, of course, true “that a bare arrest record -- without more -- does not justify an 

assumption that a defendant has committed other crimes and it therefore cannot support 

increasing his/her sentence in the absence of adequate proof of criminal activity.” United 

States v. Berry, 553 F.3d 273, 284 (3d Cir. 2009). That is not, however, what occurred in 

this case.

Counsel for Jackson admitted that her client “had a [criminal] history that goes 

way back,” (A. 90), and the District Court explicitly recognized Jackson’s lengthy 

criminal history record. The District Court expressed its “concern[] by what happened 

while [Jackson] was on bond from this Court.” (Id. at 94.) While released on the federal 

case, Jackson was arrested and convicted for unlawful possession of a firearm in the state 

of Georgia. (Presentence Report ¶ 56.) Moreover, while not applying a perjury 

enhancement, the court was troubled by Jackson’s inconsistent statements concerning the 

firearm. Initially, at the time of the stop, as well as during the suppression hearing, 

Jackson denied ownership of the gun. Later, at sentencing, Jackson admitted that he 

owned the firearm. Therefore, the District Court had a substantial basis for imposing a 

within-guidelines range sentence. Stated otherwise, irrespective of Jackson’s arrests, it 

cannot be said that “no reasonable sentencing court would have imposed the same 
7

sentence . . . for the reasons the district court provided.” Tomko, 562 F.3d at 568. 

Consequently, Jackson’s attack on the District Court’s sentence falls short.

III.

For the foregoing reasons, we will affirm the judgment of sentence.