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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

UNITED STATES OF AMERICA )

)

 v. ) CASE NO. 1:00-CR-042

)

JAMMIE T. HAIRSTON )

)

 Defendant. )

OPINION AND ORDER

Before the court is petitioner, Jammie Hairston’s “Motion Seeking to Modify Sentence

Pursuant to Title 18 U.S.C. §3582(c)(2)” filed on June 5, 2003. The Government responded on

July 8, 2005. Hairston did not file a formal reply but, on July 26, 2005, the undersigned received

a letter wherein Hairston referenced his pending motion. For the following reasons, Hairston’s

motion will be DENIED.

DISCUSSION

On August 23, 2000, a federal grand jury returned a two (2) count indictment against

Hairston alleging that he possessed more than fifty (50) grams of cocaine base crack with intent to

distribute in violation of 21 U.S.C. §841 (Count 1) and that he brandished, discharged or used or

carried a firearm during and relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)

(Count 2). Hairston pleaded not guilty to both counts and proceeded to trial. A jury convicted

Hairston on both counts. Subsequently, Hairston appeared at a sentencing hearing and was

sentenced to 330 months imprisonment which included 210 months on Count 1 and a mandatory

consecutive 120 months on Count 2. The undersigned enhanced Hairston’s sentence by two points

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Hairston testified at trial that the cocaine base crack that police seized from his person at the time

of his arrest just “appeared” in his shirt pocket and he did not know how it got there. He also testified

that he did not fire shots from the gun he possessed. Both of these statements were contradicted by

overwhelming evidence at trial. Thus, the undersigned concluded that Hairston had fabricated his

testimony.

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The substance of that opinion is as follows:

Jammie Hairston, caught red-handed with a distribution quantity of cocaine and a

firearm that had recently been discharged, was convicted not only of possessing crack

with intent to distribute but also of using a firearm during and in relation to a drug

transaction. Hairston contends that the evidence does not show that he wanted to

distribute the drug or that the gun was used during his drug business; it was used, he

insists, only for self-defense.

The problem with this argument – beyond the great difficulty that anyone faces

when trying to upset a jury’s resolution of a factual dispute–is that Hairston’s own story

strongly supports the verdict. He admits that he received a distribution quantity of

cocaine from his brother Marcus and set out to make sales. Later, Jammie contends, after

having trouble selling the crack, he tried to return it, but Marcus told him to continue

trying to sell it. When an argument ensued about this, plus money owed from earlier

sales, Jammie fired his gun. This shows two things: first that Jammie possessed cocaine

with intent to distribute, and second that he used the gun during and in relation to a drug

transaction. That shot at a drug dealer (Marcus) during an argument about drugs and

drug proceeds is no defense; it tends rather to show guilt. As for intent to distribute: The

question is not whether Jammie intended to distribute the drugs at the moment of his

arrest (or of the fight with Marcus), but whether Jammie intended to distribute them at

any time (within the period of limitations).

United States v. Hairston, No. 01-2386 (7th Cir. November 16, 2001) (unpublished).

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based upon a finding that he obstructed justice by providing false testimony at trial.1

 Thereafter, on

May 30, 2001, Hairston filed his notice of appeal.

On November 16, 2001, the Seventh Circuit Court of Appeals in a two paragraph

unpublished opinion affirmed Hairston’s conviction.2

 Hairston raised a single issue on appeal, that

is, that the evidence at trial did not show that he wanted to distribute crack or that the gun he

brandished was used during his drug business. 

Hairston then filed a petition pursuant to 28 U.S.C. §2255 wherein he alleged that the district

court erred in enhancing his sentence for obstruction of justice because the enhancement took his

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sentence beyond the statutory maximum for the offense in violation of Apprendi v. New Jersey, 530

U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Hairston also alleged ineffective assistance of

counsel based upon his counsel’s alleged failure to advise him properly with respect to whether he

should have accepted the government’s plea agreement. On February 18, 2003, the undersigned

denied Hairston’s request for §2255 relief.

The present motion is Hairston’s latest attempt to vacate his sentence, this time under 18

U.S.C. §3582(c)(2) which provides that in the case of a criminal defendant who has been sentenced

to a term of imprisonment based on a sentencing range that is subsequently lowered by the United

States Sentencing Commission pursuant to 28 U.S.C. § 994(o), the sentencing court may reduce the

term of imprisonment, after considering the factors set forth in 28 U.S.C. § 3553(a), if such a reduction

is consistent with the policy statements issued by the Sentencing Commission. Hairston argues that

his original sentencing range has been lowered by a retroactive, 2000 amendment to the sentencing

guidelines, namely Amendment 591. In addition, Hairston argues that Amendment 487 has

application to his case as does, he contends, the decision in United States v. Booker, 125 S.Ct. 738

(2005). It is to these contentions that the court now turns.

The plain language of § 3582(c)(2) provides jurisdiction for this Court to reopen, reconsider,

and modify a defendant's sentence of imprisonment only when the sentencing range applicable to the

defendant has been lowered by the Sentencing Commission and the amendment is made retroactive

by the Sentencing Commission. Amendments that are retroactive for purposes of applying 28 U.S.C.

§ 3582(c)(2) are listed in U.S.S.G. § 1B1.10(c). Amendment 487 is not listed in U.S.S.G. § 1B1.10(c)

and has not been made retroactive by the Sentencing Commission. Therefore, Hairston is not entitled

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Had Hairston not previously filed a petition under 28 U.S.C. §2255, this court could consider

Hairston’s argument relating to Amendment 487 under that procedural vehicle. However, in this case, 28

U.S.C. § 2244(b)(3)(A) bars district courts from asserting jurisdiction over successive habeas petitions

until the circuit court has granted the petitioner permission to file one. Thus, the court has no jurisdiction

to entertain Hairston’s claim relating to Amendment 487 under either §3582(c)(2) or §2255.

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It is true that the obstruction of justice enhancement was not considered by the jury. The jury

did, however, consider the amount of crack intended for distribution and specifically concluded that the

amount was “more than 50 grams.” The jury further concluded that the substance intended for

distribution was “cocaine base crack” as set forth in the Verdict Form.

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to any relief under 28 U.S.C. § 3582(c)(2) based on Amendment 487. 3

The same is true of his argument that Booker somehow alters his sentence. The Seventh

Circuit has clarified that the Booker holding is not retroactive on collateral review. See McReynolds

v. United States, 397 F.3d 479, 2005 WL 237642 (7th Cir. Feb.2, 2005); see also Green v. United

States, 397 F.3d 101, 2005 WL 237204, at *1 (2d Cir. Feb.2, 2005) (per curiam); In re Anderson, 396

F.3d 1336, 2005 WL 123923, at *3-4 (11th Cir. Jan.21, 2005). Indeed, the Seventh Circuit expressly

stated in McReynolds: “[w]e conclude, then, that Booker does not apply retroactively to criminal cases

that became final before its release on January 12, 2005.” McReynolds, 397 F.3d at 481. 

This leaves Amendment 591 as the basis for Hairston’s motion which is listed as a retroactive

amendment in U.S.S.G. §1B1.10(c). Hairston argues that Amendment 591 requires that a sentence

be based on factors that are specified in the indictment rather than facts listed in the presentence

report. In other words, he contends that the Court's findings that he obstructed justice and that he

intended to distribute at least 53.8 grams of cocaine base violated Amendment 591 because neither

of these factors were charged in the indictment nor considered by the jury.4

 As explained below, his

arguments misinterpret the amendment. 

The stated reason for the adoption of Amendment 591 was to resolve a conflict among the

circuit courts regarding the process through which a court determines which of the Sentencing

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Guidelines' Chapter Two "Offense Conduct" provisions should apply in a given case. Amendment 591

was intended to clarify that the selection of a Chapter Two provision should, with certain limited

exceptions, be determined solely by reference to the statute of conviction, with relevant conduct

factored in only after this initial selection is made. See, e.g., Watterson v. United States, 219 F.3d 232,

234-35 & n. 6 (3d Cir.2000) (discussing the prior split among the circuits and the effect of

Amendment 591). 

In this case, Hairston was convicted of 21 U.S.C. §841(a)(1), possession of crack with intent

to distribute. As a result, the probation officer properly concluded that Hairston’s offense guideline

for the drug offense should be calculated by reference to U.S.S.G. §2D1.1. Hairston contends,

however, that the court inappropriately calculated his offense level under that guideline because the

court considered relevant conduct. In making this argument, Hairston confuses the term “offense

guideline” with “offense level.” The amendment does not alter the Court's obligation to apply

appropriate cross-references contained in a particular offense guideline section from Chapter Two. See

United States v. Garcia, 204 F.Supp.2d 790, 795 (D.N.J.2002) and Anderson v. United States, 2001

WL 180140, No. 3-90- 0165-H, at *2 (N.D.Tex. Feb. 16, 2001). The amendment also does not alter

the Court's obligation to consider the movant's relevant conduct when determining his base offense

level. See U.S.S.G. § 1B1.2(b). See also U.S.S.G. § 1B1.3, comment. (backg'd.) (Nov.2000) (stating

(both pre- and post-Amendment 591) that "[c]onduct that is not formally charged or is not an element

of the offense of conviction may enter into the determination of the applicable guideline sentencing

range."); United States v. Rivera, 293 F.3d 584, 2002 WL 1162693, at *2 (2nd Cir. June 3, 2002)

("The plain wording of Amendment 591 applies only to the choice of the applicable offense guideline,

not to the subsequent selection of the base offense level.... U.S.S.G. § 1B1.3(a) explicitly allows a

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With regard to count two (the conviction under 18 U.S.C. § 924(c)(1)) the guideline sentence is

the statutory mandatory minimum sentence and must be served consecutively to the imprisonment

sentence imposed on Count 1. See USSG §2K2.4(b) and 18 U.S.C. §924(c)(1)(D).

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sentencing court to consider relevant conduct and specific offense characteristics in choosing the

appropriate base offense level once an offense guideline has been selected.") (emphasis in original)

and United States v. Shipp, 41 Fed. Appx. 884, 2002 WL 1732603, at *2 (7th Cir. July 25, 2002)

("After Amendment 591, a sentencing court may still consider actual conduct in determining relevant

conduct under U.S.S.G. § 1B1.3, but not in selecting the appropriate offense guideline under U.S.S.G.

§ 1B1.1(a) and U.S.S.G. § 1B1.2(a).") (unpublished).

In the instant case, the Court applied the guidelines as they existed at the time of the sentencing

hearing, and the procedures used at that hearing were consistent with the mandate of Amendment 591.

As required by the guidelines, the Court first determined that § 2D1.1 was the most applicable offense

guideline for count one (the 21 U.S.C. § 841(a)(1) conviction). Contrary to Hairston’s assertion, this

determination was not based on the Court's finding that he intended to distribute close to 53 grams of

cocaine base. Instead, this determination was based on the facts that he was convicted of possession

with intend to distribute cocaine base and that none of the other offense guideline sections from

Chapter Two fit within the scope of the first count.5

 

What was determined as a result of the court’s finding that Hairston intended to distribute 53

grams of crack was the offense level under guideline section 2D1.1. Under § 2D1.1(c), the offense

level is the level specified in the Drug Quantity Table and, in this case, with relevant conduct which

the court was entitled to consider, the base offense level was calculated at 32. The court then

specifically concluded that Hairston obstructed justice through perjurious testimony thereby increasing

his offense level by two levels. 

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Given the above scenario, the Court conducted itself in the manner required by Amendment

591. Accordingly, there is no basis for relief under §3582. Hairston’s Motion is therefore DENIED.

CONCLUSION

Based on the foregoing, Hairston’s Motion for Sentence Modification is DENIED.

Entered: August 17, 2005

s/William C. Lee

United States District Court

Northern District of Indiana 

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