In the

United States Court of Appeals

For the Seventh Circuit

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No. 03-3571

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAMES E. JACKSON,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 01-CR-634—Charles R. Norgle, Sr., Judge.

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ARGUED DECEMBER 9, 2004—DECIDED JUNE 9, 2005

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Before FLAUM, Chief Judge, and BAUER and WILLIAMS,

Circuit Judges.

WILLIAMS, Circuit Judge. James Jackson pled guilty to

conspiracy to distribute and possess with intent to distribute cocaine, and he was sentenced to 121 months’ custody.

Jackson now appeals and brings statutory and constitutional challenges to his sentence. We find that the district

court incorrectly calculated Jackson’s sentence by failing to

cap his offense level at 30, as required by U.S.S.G.

§ 2D1.1(a)(3) (2002), and we remand this case back to the

district court for resentencing. In light of this remand, we
2 No. 03-3571

need not address Jackson’s arguments under United States

v. Booker, 125 S. Ct. 738 (2005).

I. BACKGROUND

On August 9, 2001, a grand jury in the Northern District

of Illinois returned a two-count indictment against Jackson

and several other co-conspirators. Count One of the indictment charged Jackson with conspiracy to distribute and

possess with intent to distribute cocaine, in violation of 21

U.S.C. § 846. Count Two charged Jackson with possession

with intent to distribute cocaine, in violation of 21 U.S.C.

§ 841(a)(1).

When the grand jury indicted Jackson, the district court

allowed him to remain free on an unsecured bond pending

trial. On November 9, 2001, the government filed a Motion

to Revoke Defendant’s Bond. In this motion, the government

alleged that Jackson had threatened one of the government’s

confidential informants, Rendon Hudson. Specifically, the

government argued that the confidential informant heard

“on the street” that Jackson had put a contract on his life

for $200,000. In addition, the government alleged that

Jackson came to Hudson’s house and made a statement to

Hudson’s father and brother that Hudson would experience

some type of violent revenge. During this supposed confrontation between Jackson and Hudson’s relatives, Hudson

himself came home. When Hudson told Jackson to leave,

Jackson allegedly said something to the effect of, “You

gonna get yours.” The district court held a hearing on this

matter, and found that Jackson had indeed threatened

Hudson. The district court then revoked Jackson’s bond.

At sentencing on September 17, 2003, the district judge

found that Jackson should receive an adjustment under

U.S.S.G. § 3B1.2(b) for being a minor participant in the offense. However, based on the recommendation of Jackson’s

probation officer, the district court found that Jackson’s
No. 03-3571 3

base sentencing offense level was 32. From the base offense

level of 32, the district court then gave Jackson a two-point

enhancement for obstruction of justice. The government

called witnesses, and the district court made the finding

that Jackson obstructed justice by threatening Hudson, the

government’s confidential informant.

Jackson also argued that he qualified for the safety valve

reduction. U.S.S.G. § 5C1.2 (2002). The district court denied

Jackson’s motion to apply the safety valve. However,

because the district court found that Jackson was a minor

participant, it granted him a two-point reduction. The

district court concluded that Jackson’s final offense level

was 32. With a criminal history category of I, Jackson’s

guideline sentencing range was 121 to 151 months. The

district court sentenced Jackson to a 121-month term of imprisonment, a five-year term of supervised release, and a

$100 special assessment. Jackson submitted a timely

appeal.

II. ANALYSIS

A. The District Court’s Application of U.S.S.G.

§§ 2D1.1(a)(3) and 3B1.2(b)

We review the sentencing court’s legal interpretation of the

sentencing guidelines de novo. United States v. Johnson,

324 F.3d 875, 877 (7th Cir. 2003). Jackson argues that

based upon U.S.S.G. § 2D1.1(a)(3) of the November 2002

Sentencing Guidelines, the district court should have set his

base level at 30, not 32. The government concedes that the

district court should have applied the cap of 30 and then

subtracted the mitigating role adjustment under section

3B1.2. We agree. Section 2D1.1 of the 2002 Sentencing

Guidelines states that if the defendant receives an adjustment under section 3B1.2 for a mitigating role, the base
4 No. 03-3571

1 U.S.S.G. § 2D1.1(a) (2002) (amended 2004) is entitled “Base

Offense Level (Apply the greatest).” Section 2D1.1(a)(3) instructs

that the base offense level shall be “the offense level specified in

the Drug Quantity Table set forth in subsection (c), except that if

the defendant receives an adjustment under § 3B1.2 (Mitigating

Role), the base offense level under this subsection shall be not

more than level 30.”

2 U.S.S.G. § 3B1.2 cmt. 6 (2002) states: “In a case in which the

court applied § 2D1.1 and the defendant’s base offense level under

that guideline was reduced by operation of the maximum base

offense level in § 2D1.1(a)(3), the court also shall apply the

appropriate adjustment under this guideline.”

offense level shall not be more than 30.1 The district court

failed to cap Jackson’s base offense level at 30 in this case

and instead set Jackson’s base level at 32.

The 2002 sentencing guidelines also direct that the

district court apply any mitigating role adjustment from the

capped base offense level of 30. U.S.S.G. § 3B1.2 cmt. 6

(2002);2 see also United States v. Santos, 357 F.3d 136, 140

n.2 (1st Cir. 2004). This court, prior to this case, has not

commented on the application of mitigating role adjustments

to the capped offense level within the 2002 Sentencing

Guidelines. Accordingly, based on the plain language of the

2002 commentary to section 3B1.2, we find that the district

court erroneously applied the Guidelines. We therefore

vacate Jackson’s sentence and remand for resentencing. The

Guidelines provide that the district court should have

begun with a base level of 30 and then subtracted any

negative adjustments, such as a mitigating role. Of course,

in accord with United States v. Booker, 125 S. Ct. 738, 757

(2005), on remand the district court is to treat the Guidelines

as advisory rather than mandatory. Because the Guidelines

are now advisory, the district court must consider the correct guideline range when determining a new sentence, but

may “tailor the sentence in light of other statutory concerns

as well.” Id.
No. 03-3571 5

B. Jackson’s Booker-Related Arguments

Jackson also argues that his Sixth Amendment right to a

jury’s determination of facts underlying his sentence enhancement was violated when the district judge found by a

preponderance of the evidence that Jackson obstructed

justice by intimidating the government’s confidential informant. See Booker, 125 S. Ct. at 756. We are already remanding this case based on the district court’s Guidelines

calculation error, and Jackson must be resentenced in accordance with Booker at that time, obviating the need for us

to consider the propriety of a limited remand under United

States v. Paladino, 401 F.3d 471, 484 (7th Cir. 2005).

Jackson further argues that the district court’s finding

that he was not eligible for a safety valve reduction likewise

violated his Sixth Amendment rights under Booker. Again,

because we are already remanding this case based on the

district court’s Guidelines calculation error, we need not

address this argument at this time. Based on the district

court’s Guidelines calculations error, Jackson must be

resentenced in accordance with Booker.

III. CONCLUSION

In summary, we VACATE Jackson’s sentence based on the

district court’s Guidelines calculation error and remand for

resentencing. When the district court resentences Jackson,

it is to apply the Guidelines in an advisory manner, in accordance with Booker.
6 No. 03-3571

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—6-9-05