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September 22, 2004.

SUIF JACKSON, Defendant.

The opinion of the court was delivered by: GERARD E. LYNCH, District Judge


This case presents sentencing issues that demonstrate the occasional complexity of the federal Sentencing Guidelines. Although the intricacies of the guideline application here are interesting and significant in themselves, the case also illustrates aspects of the Guidelines that are of crucial relevance to both the constitutional questions currently under consideration by the Supreme Court, and to questions of sentencing policy that should be of concern to the Commission and the Congress.


  The defendant Suif Jackson stands convicted, by his plea of guilty, of four felonies involving firearms: possession of a firearm by a convicted felon, 18 U.S.C. § 922(g)(1); possession of a machine gun, 18 U.S.C. § 922(o); transportation of an unregistered machine gun in interstate commerce, 26 U.S.C. § 5861(j); and possession of an unregistered machine gun, 26 U.S.C. § 5861(d). All four felonies carry maximum sentences of ten years' imprisonment, and all involve a single weapon, a fully automatic Mac-11 machine gun, which was transported and possessed by Jackson on a single day, February 25, 2001.

  The undisputed facts underlying this conviction are frightening. Jackson admitted in his plea allocution that he brought a machine gun from Englewood, New Jersey to Manhattan, and fired it during an altercation near the studios of a radio station. While pleading guilty, he stated under oath that he fired the gun at someone, and believes that he hit that person. (He expressed some uncertainty about whether he himself actually wounded anyone, apparently because other people were firing at the same time.) (Tr. 21-22.)

  Additional facts, which Jackson does not dispute but which he did not specifically admit to at the time of his plea, provide a context for this event. Jackson was a friend and sometime bodyguard for a well-known recording artist named Kimberly Jones, professionally known as "Lil' Kim," and came to the radio station with her on the day in question. Immediately following Jones's interview at the station, another singer (professionally known as "Capone"), with whom Jones apparently had some sort of rivalry or feud, was scheduled to arrive. According to Jackson's post-arrest statement to the authorities, Jackson had words with Capone. The confrontation escalated, and Jackson eventually fired twenty to twenty-two shots. (PSR ¶¶ 23-41.) It is not disputed that others were firing too, and Jackson testified at his allocution, without contradiction by the Government, that "[p]eople were firing at me too." (Tr. 21.) A person apparently associated with the Capone faction was shot in the upper back and seriously wounded. (PSR ¶ 44.) The Presentence Report ("PSR") states, and Jackson does not dispute, that Jackson was responsible for this injury. (PSR ¶ 33.) Exactly how the altercation escalated from words to shooting is not clear from the record currently before the Court. Since Jackson was charged only with offenses involving the possession and transportation of the firearm, he could and did fully acknowledge his guilt on those charges without setting forth a detailed account of who fired when, or what he perceived, believed, or felt at the time of the shooting. While he acknowledged firing the machine gun at someone, he noted that others were firing too, including some who were firing at him. His post-arrest statement, as reported in the PSR, also notes that "he fired and others fired too," without specifying who fired first or what the circumstances were. (PSR ¶ 41.)*fn1 Neither in his allocution nor in the post-arrest statement as reported in the PSR does Jackson specifically claim to have acted in self-defense; neither, however, does either statement specifically admit that he was the aggressor. In his post-conviction, pre-sentence interview with the probation department, Jackson stated that he "returned fire" after "[a] gun was fired from [Capone's] group" when "there were people shooting at him." (PSR ¶¶ 46, 48.) A sentencing submission by Jackson's attorneys adopts and elaborates this account, asserting that "Jackson did not initiate the shooting. He fired his weapon only after hearing gunshots from the rival group, and only in response to their attack." According to defense counsel, "Jackson's decision to fire his weapon was not an act of naked aggression but, rather, of instinctual self-defense." (Letter of Mark P. Goodman and Ellen A. Hochberg to the Court, dated September 20, 2004 ("Defense Letter"), at 2.)*fn2 The Government characterizes the incident differently, stating that "[a]fter the other artist arrived at the radio station, Jackson and [another member of Jones's party] began firing guns." (Letter from AUSAs Helen V. Cantwell and Daniel M. Gitner to the Court ("Government Letter"), dated September 20, 2004, at 2.) It is not entirely clear, however, that this extremely cursory summary of the events, which does not refer at all to any shooting from the rival party, purports to assert that Jackson was the aggressor, or to dispute the account that members of that group did in fact fire, whether before or after Jackson fired his weapon. In support of its characterization, the Government cites only to paragraphs of the PSR that, as fully described above, state in very summary fashion that Jackson "emptied the clip from [his] machine gun . . . into the crowd." (Government Letter at 2, citing PSR ¶¶ 33, 41.)

  As further context for these events, the PSR sets forth in detail Jackson's dismal criminal history. To those familiar with the Guidelines, the numerical summary of that history will be sufficiently startling: Jackson has accumulated fourteen "criminal history points," placing him in Criminal History Category VI — the highest category recognized in the guideline system. In ordinary English, this score reflects five previous convictions (none relating to the incident now before this Court) for sale of narcotics, criminal possession of a weapon (twice), attempted robbery, and robbery, from 1988 through 2001. Four of those offenses involved handguns, three involved at least threats of violence, two involved firing a gun, and in one Jackson wounded someone. Jackson has been in prison, or on probation or parole, nearly continuously since 1988. Whenever he has received leniency from the courts or from the authorities, he has betrayed that trust: His second conviction occurred while he was on probation for his first; he has been paroled from prison three times, and each time his parole has been revoked. Jackson, in fact, is now serving a state sentence for the last of these crimes, which took place after the incident at bar, but which preceded his arrest on the present charges.


  On these facts, no judge in the United States would need sentencing guidelines of any kind to decide that a lengthy sentence is appropriate and required, in order to punish Jackson for an extremely serious offense, and to protect the public from a man who has proved himself extremely violent and dangerous. This is not to say, of course, that guidelines are of no assistance to the Court. Reasonable minds can differ about what constitutes a "lengthy" sentence for a thirty-four-year old offender with a fifteen-year history of violent crime, who has committed an offense of this nature. A guidepost that indicates whether "lengthy," in just proportion to other crimes and in keeping with the consistent practices of courts throughout the country, will generally mean five years, or ten, or fifteen, subject to more specific tailoring to the conditions of the particular case, provides valuable assistance in avoiding sentencing disparity among different judges.

  As is well known, however, the federal Sentencing Guidelines attempt not merely to provide such guidance, but to dictate, within extremely narrow limits, a highly specific sentence for every defendant who comes before the federal courts. Given that ambition, the Guidelines must attempt to address the details of the nearly infinite variety of human wickedness and individual circumstance. As the Supreme Court has recognized in Blakely v. Washington, 124 S. Ct. 2531 (2004), this effort can involve the courts in making factual findings that may implicate our constitutional commitment to trial by jury. The guideline calculation in this case illustrates both the complexity of the system that follows from its excessive detail and the constitutional awkwardness of at least certain provisions of the Guidelines that require sentencing judges in effect to declare defendants guilty of crimes of which they have not been convicted by a jury. At the same time, the case illustrates why simplistic analysis of "the constitutionality of the Guidelines in light of Blakely," which purports to find the entire system unconstitutional, radically oversimplifies a complicated and diverse sentencing system which in many of its aspects presents no constitutional difficulties at all.

  I. The Plea Agreement and PSR: U.S.S.G. § 2A2.1

  Although not every provision of the Guidelines is difficult to apply, in some cases the Guidelines present technical difficulties that challenge even talented lawyers and experienced probation officers. In this case, the parties and the PSR appear to have misapplied the Guidelines, in a way that maximizes the potential constitutional problems of guideline sentencing.

  Without question, the guideline provision applicable to this case is U.S.S.G. § 2K2.1, which applies to "Unlawful Receipt, Possession or Transportation of Firearms or Ammunition." This provision, however, contains a "cross-reference" which considerably complicates this case. Under U.S.S.G. § 2K2.1(c)(1)(A):
If the defendant used or possessed any firearm . . . in connection with the commission or attempted commission of another offense, . . . apply . . . § 2X1.1 (Attempt, Solicitation, or Conspiracy) in respect to that other offense, if the resulting offense level is greater than that determined above.
With respect to this offense, the parties have stipulated in a plea agreement that this provision applies, and that § 2X1.1, on the facts of this case, in turn refers the Court to the guideline for "Assault with Intent to Commit Murder," U.S.S.G. § 2A2.1. (See Letter of AUSAs Helen V. Cantwell and Daniel M. Gitner to Joseph Bianco, Esq., dated June 10, 2004 ("Plea Agreement"), at 2.)*fn3

  According to the parties' stipulation, this Guideline provides a base offense level of 28 for the instant offense, because "the object of the offense would have constituted first degree murder." U.S.S.G. § 2A2.1(a)(1).*fn4 In light of Blakely, this assertion raises an immediate concern. Jackson pled guilty to possession and transporting a machine gun, a serious offense in its own right. The structure of the Guidelines, however, apparently requires the Court to consider whether he is guilty of the far more serious offense of attempted first-degree murder, an offense with which he has never been charged, let alone convicted by a jury.*fn5 Whatever one thinks about the general constitutionality of the federal guideline sentencing system, see United States v. Emmenegger, 329 F.Supp. 2d 416, 2004 WL 1752599 (S.D.N.Y. Aug. 4, 2004) (distinguishing Blakely and finding Guidelines constitutional in general and as there applied), it is unsurprising that fair-minded jurists would be troubled by the notion that Jackson could in effect be sentenced for such a serious ...

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