1 21

- 2619

- cr United States v. Jackson
UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate

Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a document filed with this Court, a party must cite either the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York

, on the 8 th day of March , two thousand twenty

- t hree

.

PRESENT: J OSÉ A. C ABRANES

, R EENA R AGGI

, J OSEPH F. B IANCO

, Circuit Judge

.

U NITED S TATES OF A MERICA

,

Appellee

, 21

- 2619

- cr

v.

D EJON J ACKSON

, AKA W INGY

,

Defendant

- Appell ant

.

FOR APPELLEE : Daniel C. Richenthal

, Jennifer N. Ong, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

FOR DEFENDANT

- APPELLANT : James M. Branden, Law Office o f James M. Branden, Staten Island, NY.

Appeal from a judgment of the United States District Court for the Southern District of
New York ( Cathy Seibel

, J udge ).2 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of t he District Court entered on October 12

, 2021, be and hereby is AFFIRMED

.

Defendant

- Appellant Dejon Jackson appeals from a judgment of conviction

, in which he

was sentenced principally to a 42

- month t erm of imprisonment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the District Court’s sentence was substantively unreasonable. 1 We assume the par ties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We employ the “deferential abuse

- of

- discretion standard” to review a sentence for substantive reasonableness, United States v. Singh , 877 F.3d 107, 115 (2d Cir. 2017) (quoting Gall v.

United States , 552 U.S. 38, 41 (2007)), and will vacate only in “exceptional cases where the trial court’s decision ‘cannot be located within the range of permissible decisions,’” United States v. Cavera , 550 F.3d 180, 1 89 (2d Cir. 2008) ( en banc ) (quoting United States v. Rigas , 490 F.3d 208, 238 (2d Cir. 2007)) , such as when the sentence is “‘shockingly high, shockingly low, or otherwise [ ’ ]

. . . would ‘damage the administration of justice

, ’” United States v. Broxmeyer

, 699 F.3d 265, 289 (2d Cir. 2012) (quoting Rigas, 583 F.3d at 123).

On appeal, Jackson contends that his 42

- month sentence

— 9 month s above the upper end of the advisory Guidelines range

— i s substantively unreasonable on several grounds: (1) “ t he

. . . offense . . . was garden variety with no exacerbating circumstances

, ” Appellant Br. 12 ; (2) his “ personal history, .

. .among federal offenders, was undistinguished

, ” i d

. ; (3) “ a term of imprisonment above the minimum bu t still within the guidelines could have accommodated ” the District Court’s concern about Jackson’s “ custodial infractions and supervision violations ,” i d. at 13 ; (4) “i t appears that the only reason the court sentenced Mr. Jackson above the guidelines was

because of its mere belief

. . . that the firearm guideline (USSG §2K2.1) itself was too lenient

, ” i d. at
13

– 14.

Upon review of the record, we cannot conclude that Jackson’s sentence is “‘shockingly high

. . . or otherwise [ ’ ]

. . . would ‘damage the administration of justice.’” Broxmeyer , 699 F.3d at 289 (quoting Rigas, 583 F.3d at 123). The District Court appropriately considered the full range of § 3553(a) factors, including circumstances such as Jackson’s difficult childh ood, A pp’x 81

– 82, Jackson’s remorse, id. at 84, and his harder

- than

- usual COVID

- 19 conditions of confinement, id. at 85, as well as the need to avoid unwarranted sentencing disparities, id

. A t the same time, Judge Seibel noted that Jackson’s offense was “ incredibly dangerous to the community

, ” id. at 78, that he

1 Insofar as Jackson seeks to appeal a consecutive 12

- month term of imprisonment imposed at

the same time for violating the terms of his supervised release on a previous § 922(g) conviction based on the same underlying conduct , we lack jurisdiction to review that challenge because Jackson

failed to notice th at judgment for review by this court. See Fed. R. App. P. 3(c)(1)(B) (“The notice of appeal must :

. . . designate the judgment

— or the appealable order

— from which the appeal is taken.”); see also United St ates v. Caltabiano , 871 F.3d 210, 215 (2d Cir. 2017) (“[Fed. R. App. P. 3(c)(1)(B)] is ‘jurisdictional in nature’ and not waivable.” (quoting Smith v. Barry , 502 U.S. 244, 248 (1992))).3 had an “awful record,” id. at 79, and that “[t] he sentences the d efendant ’ s gotten so far have not

deterred him ,” id. at 84 , therefore clearly considering “the need for the sentence imposed to afford adequate deterrence to criminal conduct” and “ to protect the public from further crimes of the

defendant ,” § 3553(a)(2) (B), (C). Because the relative weight afford ed to aggravating and mitigating factors is “firmly committed” to a district court’s discretion and our role is limited to assessing if “a factor ‘can bear the weight assigned it under the totality of the circumstances in the case,’” Broxmeyer

, 699 F.3d at 289 (quoting Cavera , 550 F.3d at 191), we reject Jackson’s argument that his sentenc e was substantively unreasonable.

Moreover, contrary to Jackson’s suggestion on appeal, “a district court may vary from the Guidelines range based solely on a policy disagreement with the Guidelines, even where that disagreement applies to a wide class of offenders or offenses.” Cavera , 550 F.3d at 191 (emphasis added) (citing Kimbrough v. United States , 552 U.S. 85, 108

– 1 0 (2007)). Thus, the D istrict C ourt did not abuse its wide discretion in basing its above

- Guidelines sentence in part on such a disagr eement

, particularly given its careful analysis of the § 3553(a) factors. See Gall , 552 U.S. at 51 (“When conducting [a substantive reasonableness] review, the court will, of course, take into account the totality of the circumstances.”).

C ONCLUSION

We h ave reviewed the remaining arguments raised by Jackson on appeal and find them to be

without merit. For the foregoing reasons, we AFFIRM the judgment of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk