Opinion — United States v. Jackson (Dkt. 54, C.D. Ill.)

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An opinion of U.S. District Judge Colleen R. Lawless in United States v. Sean Jackson, Case Nos. 22-cr-30026 and 22-cr-30061, in the U.S. District Court for the Central District of Illinois, filed August 21, 2024 as Doc. 54 in No. 22-cr-30061. It rules on the defendant's objections to the Revised Presentence Investigation Report after sentencing hearings that began July 10, 2024, with sentence to be imposed August 22, 2024. The defendant withdrew his 21 U.S.C. § 851 objection tied to a prior cannabis trafficking conviction, and the court sustains objections on the home invasion conviction and a credible-threat enhancement, overrules another, and finds remaining rulings unnecessary under Rule 32(i)(3)(B).

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3:22-cr-30061-CRL-KLM #54 Filed: 08/21/24 Page 1of 14
                                                                                  E-FILED
                                                      Wednesday, 21 August, 2024 12:03:51 PM
                                                                 Clerk, U.S. District Court, ILCD

                   IN THE UNITED STATES DISTRICT COURT
                   FOR THE CENTRAL DISTRICT OF ILLINOIS
                            SPRINGFIELD DIVISION

 UNITED STATES OF AMERICA,             )
       Plaintiff,                      )
                                       )
 Vv.                                   )      Case Nos. 22-cr-30026
                                       )                22-cr-30061
                                       )
 SEAN JACKSON,                         )
       Defendant.                      )

                                    OPINION

 COLLEEN R. LAWLESS, United States District Judge:

       The sentencing hearings as to Defendant Sean Jackson commenced on July 10,

2024, and sentence will be imposed on August 22, 2024. At the prior hearing, the Court

heard argument on Defendant's objections to the Revised Presentence Investigation

Report. While most of the objections relate to Case Number 22-cr-30026, there are two

objections made in both cases. After considering the parties’ commentaries and

arguments, the Court now rules on Defendant's objections.

I.    Enhanced Penalty Objections

      Defendant initially objected to the enhanced penalties under 21 U.S.C. § 851 due

to prior convictions for home invasion, 720 ILCS 5/12-11(a)(2) (2007), and cannabis

trafficking, in violation of 720 ILCS 550/5.1. Defendant now withdraws his objection and

acknowledges the cannabis trafficking conviction qualifies as a serious drug felony under

21 U.S.C. § 802(57) based on the Supreme Court's recent decision in Brown v. United States,

144 S. Ct. 1195 (2024). Therefore, Defendant’s mandatory minimum term of

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imprisonment is increased from 10 years’ imprisonment to 15 years’ imprisonment, and
his mandatory term of supervised release is increased from 5 years to 10 years.

Defendant maintains that his 2007 conviction for home invasion is not a “serious
violent felony” as necessary for a sentencing enhancement under 21 U.S.C. § 841(b)(1),
nor is ita “crime of violence” as necessary for a career offender designation under § 4B1.1.
The term “serious violent felony” means, as relevant here, “any other offense punishable
by a maximum term of imprisonment of 10 years or more that has an element the use,
attempted use, or threatened use of physical force against the person of another.” 18
US.C. § 3559(c)(2)(F). Based on this definition, the Government contends Defendant's
conviction for home invasion qualifies as a serious violent felony while Defendant argues
that, as defined under Illinois law, his conviction did not require the use, attempted use,
or threatened use of physical force.

The parties agree that courts employ a categorical approach to determine whether
a state offense fits within the elements clause. See United States v. Taylor, 142 S. Ct. 2015,
2020 (2022). “Under the categorical approach, the only relevant question is whether the
federal felony at issue always requires the government to prove—beyond a reasonable
doubt, as an element of its case—the use, attempted use, or threatened use of force.”
United States v. States, 72 F.Ath 778, 783-84 (7th Cir. 2023) (internal quotation marks
omitted). If the crime can be committed without the government proving one of those
elements, there is a categorical mismatch and the crime is not a predicate offense for the
enhancement. United States v. Brown, 74 F 4th 527, 530 (7th Cir. 2023); see also United States
v. Smith, ___-F.Ath ___, 2024 WL3506195, at *1 (7th Cir. July 23, 2024) (“To be sure that

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Smith’s prior offense qualifies as a predicate offense for the sentence enhancements, we
must determine whether the enhancements’ definitions of serious violent felony and
crime of violence are broad enough to encompass the elements of Smith’s statute of
conviction.”).

A statute is divisible if, instead of defining a single set of elements for a single
crime, it defines multiple crimes by “listing elements in the alternative.” Elion v. United
States, 76 F.Ath 620, 626 (7th Cir. 2023). If the statute is divisible, courts may employ the
modified categorical approach which allows courts to examine a limited number of
record documents to determine the crime and elements of the defendant’s prior
conviction. Id. Once the precise elements of conviction are identified, a court can then
compare that crime with the applicable Guidelines offense. Id. “If the elements of that
crime fall within the coverage of that offense, then there is no mismatch, even if the same
statute lists other offenses with broader elements.” Id. If the prior statute of conviction is
broader than the Guidelines offense and indivisible, the prior conviction does not qualify
as a predicate offense even if the Guidelines offense covers the facts of defendant's actual
conduct. Id.

The parties agree that, because the statute in effect at the time of Defendant's
conviction listed six alternative elements, the statute is generally divisible. When a statute
is generally divisible, courts look only at the specific subsection to which the defendant
pled guilty. United States v. Ruth, 966 F.3d 642, 649-50 (7th Cir. 2020). The charging
instrument from Defendant’s case shows that he pled guilty to Count II, which
specifically alleged a violation of subsection (a)(2). That subsection is not itself divisible

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because it does not include further alternative elements. See Ruth, 966 F.3d at 650. The
Court now turns to whether that specific subsection has as an element “the use, attempted
use, or threatened use of physical force against the person of another.”18 U.S.C. §
3559(c)(2)(F) (ii).

The Government notes that the Supreme Court has interpreted the term “ physical
force” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), as “force
capable of causing physical pain or injury to another person.” Johnson v. United States, 559
US. 133, 138-40 (2010). Subsequently, the Supreme Court concluded that Johnson “does
not require any particular degree of likelihood or probability that the force used will
cause physical pain or injury, only potentiality.” Stokeling v. United States, 586 U.S. 73, 84
(2019). “[Florce is capable of causing physical injury within the meaning of Johnson when
it is sufficient to overcome a victim’s resistance.” Id. (internal quotation marks omitted).
Id. at 85. At common law, “[o]vercoming a victim’s resistance was per se violence against
the victim, even if it ultimately caused minimal pain or injury.” Id. at 83-84.

The Seventh Circuit noted that “[t]his understanding .. . comported with Curtis
Johnson's requirement that the force be ‘capable of causing physical pain or injury,’ since
any overcoming of resistance involves a ‘physical contest’ and ‘it is the physical contest
between the criminal and the victim that is itself ‘capable of causing physical pain or
injury.’” Johnson v. United States, 24 F.4th 1110, 1120 (7th Cir. 2022) (quoting Skokeling, 586
US. at 84, and Johnson, 559 U.S. at 140) (internal citations omitted). The court concluded
that “after Curtis Johnson, any offense involving force ‘capable of causing physical pain or
injury’ is sufficient to qualify as a violent felony under the ACCA. And after Skokeling, an

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offense per se satisfies Curtis Johnson's definition of force if it involves the offender's
overcoming the victim's resistance.” Id. at 1120.

As noted, the parties dispute whether home invasion qualifies as a crime of
violence under § 3559(c)(2)(F)(ii). The only element relevant to the consideration involves
whether Defendant “intentionally causes any injury, except [by discharge of a firearm],
to any person or persons within the dwelling place.” 720 ILCS 5/12-11(a)(2).

The Government notes that Illinois law requires the use of an appropriate pattern
jury instruction when one exists. People v. Sims, 192 Ill.2d 348, 412 (2000). According to
Illinois Pattern Criminal Jury Instruction 11.54, the definition of injury is found under
Instruction 11.53B, which states that “[t]he term ‘injury’ in the definition of home invasion
may include physical injury. It also includes psychological or emotional trauma if that
trauma was the result of some physical contact.” Thus, there must be physical contact
causing one of those types of injuries to sustain a conviction for home invasion.

Defendant alleges the injury element does not fit within the elements clause
because it allows the State to prove “any injury” and not just injuries caused by an
offender’s use of force. Psychological injury alone can satisfy this element. People v.
Hudson, 228 IIl.2d 181, 195 (2008). Defendant notes that an offender need not use force or
even touch a victim to cause psychological injury. “[A]ny physical, emotional,
psychological, or traumatic injury intentionally caused by the defendant to a person
inside the dwelling is sufficient to satisfy this required element, with or without physical
contact.” People v. Dorsey, 66 N.E.3d 914, 920 (4th Dist. 2016). Based on Hudson and Dorsey,
Defendant contends that mere proof of emotional trauma is enough to sustain a

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conviction, regardless of whether Defendant used force, attempted force, or threatened
force to cause that trauma. Therefore, Defendant alleges the injury element for home
invasion is a categorical mismatch because it encompasses offense conduct that is broader
than the federal elements clause.

The Government argues that each case that Defendant relies on for the proposition
that “any injury” include “purely emotional, mental, or psychological injury or trauma”
also demonstrates physical contact against the victim or another in the home. In Dorsey,
the defendant shoved one of the victim’s daughters upon entering the home and had
fought with police in the same room the victim and her daughters were in. Dorsey, 66
N.E.3d at 922. In Hudson, the defendant grabbed the victim's wrists and face and pushed
her against the basement door before then grabbing her hair and pulling her toward the
back door. Hudson, 228 Il.2d at 183-84.

The Government states that, in each of the examples cited by Defendant, some
degree of force was used to cause the injury. Additionally, other Illinois courts, while not
citing Dorsey, have noted that “[t]he term injury and the definition of home invasion may
include physical injury. It also includes psychological or emotional trauma, if that trauma
was a result of some physical contact.” People v. Okoro, 208 N.E.3d 1084, 1094 (1st Dist.
2022); see also People v. Brocksom, 2021 IL App (2d) 191-1098-U | 28 (“The term ‘injury’ in
the definition of home invasion may include physical injury. It also includes
psychological or emotional trauma if that trauma was'a result of some physical contact.”).

The Government states that, when applying this framework, force sufficient to cause an

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injury — including emotional trauma — to a victim in the context of Illinois’ home invasion
statute should also meet the elements clause outlined in 18 U.S.C. § 3559(c)(2)(F)(ii).

The Court adheres to its earlier ruling in United States v. Bull, No. 20-cr-30046 (C.D.
Ill. Dec. 12, 2023), when it concluded that an Illinois home invasion is not a serious violent
felony. While the Government correctly notes that Dorsey and Hudson involved physical
contact in addition to emotional, mental, or psychological trauma, the Illinois Supreme
Court stated that psychological injury alone can satisfy the injury element. See Hudson,
228 IIl.2d at 195 (“Thus, we hold that proof of psychological injury or trauma satisfies the
injury elements of section 12-11(a)(2) of the Criminal Code of 1961.”). The Illinois

aS fl

Appellate Court also held that “any injury” “means just that—any physical, emotional,
psychological, or traumatic injury. . .with or without physical contact.” See Dorsey, 66
N.E.3d at 920. Accordingly, the Court SUSTAINS Defendant’s Objection and concludes
Defendant's prior home invasion conviction does not qualify as a serious violent felony
to increase the mandatory minimum sentence or a crime of violence supporting the career
offender enhancement.
I. Threat Enhancement

Defendant objects to the 2-level enhancement in paragraph 36 under § 2D1.1(b)(2),
which states, “If the defendant used violence, made a credible threat to use violence, or
directed the use of violence, increase 2 levels.” While Defendant was being booked at the

DEA Office in Springfield following his arrest, DEA Agent Luke Edson reported

Defendant stated the following:

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JACKSON spontaneously stated he should have killed “Dante.” JACKSON said

he seriously should have killed Dante. JACKSON said he decided to wait to kill

Dante until he knew it was him. JACKSON said otherwise he would have to live

with his decision if he was wrong.

(Doc. 67 at 13). Defendant cites Black’s Law Dictionary, which defines “threat” as “an
avowed present determination or intent to injure presently or in the future.” Defendant
claims that the context of the statements reveals they were not true threats. The
statements were made out of frustration and anger following his arrest. It also strains
credulity to suggest that Defendant was informing law enforcement of a plan to kill the
cooperating witness. Defendant further asserts the Government has produced no
evidence that Defendant took any actions in furtherance of his statements.

The Government claims that the statements were in fact a present determination
to take action in the future, once he was able to confirm that “Dante” was the confidential
source (CS). Defendant even noted that he should have already done so. Moreover, the
statements were made before any detention order was entered and thus at a time when
Defendant's release was possible. The Government contends the 2-point enhancement
for credible threats of violence should apply.

There does not appear to be any case law addressing whether the enhancement for
credible threats applies in this context. The commentary to § 2D1.1(b)(2) is also silent on
the issue. While Defendant's statements might reasonably be perceived by the CS as a
threat, they do not constitute credible threats based on the circumstances surrounding

the statements. Defendant made the statements directly to law enforcement after he was

arrested and booked into custody. The statements appear to either be expressions of

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regret that he did not kill the CS earlier or, more plausibly, statements expressing
frustration and anger following his arrest. The statements are not reasonably taken as
expressions of an intent to take action in the future. Therefore, the Court SUSTAINS
Defendant's Objection and concludes that the 2-point enhancement for making a credible
threat to use violence does not apply.
III. Premises Enhancement
Defendant objects to the 2-level enhancement in paragraph 37 under §
2D1.1(a)(12), which applies “[i]f the defendant maintained a premises for the purpose of
manufacturing or distributing a controlled substance.” The commentary provides:
Among the factors the court should consider in determining whether the
defendant “maintained” the premises are (A) whether the defendant held a
possessory interest in (e.g., owned or rented) the premises and (B) the extent to
which the defendant controlled access to, or activities at, the premises.
Manufacturing or distributing a controlled substance need not be the sole purpose
for which the premises was maintained, but must be one of the defendant’s
primary or principal uses for the premises, rather than one of the defendant's
incidental or collateral uses for the premises. In making this determination, the
court should consider how frequently the premises was used by the defendant for
manufacturing or distributing a controlled substance and how frequently the
premises was used by the defendant for lawful purposes.
§ 2D1.1 cmt. n. 17. “[A]n individual ‘maintains’ a drug house if he owns or rents premises,
or exercises control over them, and for a sustained period of time, uses those premises to
manufacture, store, or sell drugs, or directs others to those premises to obtain drugs.”
United States v. Acosta, 534 F.3d 574, 591 (7th Cir. 2008).

Defendant claims that the record does not demonstrate that he used 2120 East

Monroe Street for a sustained period of time to manufacture, store, or sell drugs. Three

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controlled buys from the home occurred on July 27, 2021, August 5, 2021, and August 11,
2021. Defendant contends that a 16-day period is not a “sustained period of time.”
Discovery materials indicate that agents unsuccessfully attempted other controlled buys,
which Defendant claims indicates he did not continue to sell drugs from the residence.

Defendant states that, when agents executed a search warrant at 2120 East Monroe
Street in May 2022, they found no drugs, no money, no drug ledgers, no scales, or any
other indicia of drug sales from the location. The agents found “white wrappings, black
paper and a dryer sheet” in the kitchen trash can, and “a bundle of brown and black
paper with white wrappings” in the garage. Subsequently, the wrappings from the
kitchen tested positive for methamphetamine and cocaine, while the wrappings from the
garage field tested positive for cocaine.

Defendant contends there is no evidence as to how long the “wrappings” had been
in the home. Moreover, given that Defendant was using methamphetamine until the time
of his arrest, there is no evidence the wrappings were from drugs being sold as opposed
to drugs being used. Thus, Defendant claims the record does not establish that he used
the address “for a sustained period of time” to “manufacture, store, or sell drugs, or direct
others to those premises to obtain drugs” to support the enhancement.

The Government notes that the Court need not find that Defendant stored multiple
kilograms of drugs over an extended period of time for the enhancement to apply. On
July 27, 2021, Defendant sold 123.5 grams of cocaine to the CS from 2120 East Monroe.
On August 5, 2021, Defendant sold 448 grams of methamphetamine to the CS, Instead of
conducting the transaction in the confidential source’s vehicle, Defendant had the CS

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come inside the residence to conduct the transaction. On August 11, 2021, Defendant told
the CS to come to the residence to conduct the drug transaction, at which time Defendant
sold him 449.9 grams of methamphetamine.

The Government further notes that Defendant owned and maintained control over
2120 East Monroe Street during the transactions at issue through the time he was arrested.
In May of 2022, DEA agents conducted a search of the residence and discovered the items
in the kitchen trash can which contained methamphetamine residue and items in the
garage which confirmed the presence of cocaine. The items which included white
wrappings, black paper, and a dryer sheet and a bundle of brown and black paper with
white wrappings are commonly used to transport illegal substances.

In further support of its position, the Government has submitted several exhibits
which include an image and videos from Defendant's Snapchat account. The first is an
image showing a large stack of U.S. currency. The second is a video showing Defendant
wearing expensive jewelry. The third is a video showing Defendant with a large amount
of U.S. currency, while the fourth shows Defendant counting a large amount of U.S.
currency. The Government notes each of these is dated months after Defendant's last sale
of controlled substances to the CS.

Defendant has acknowledged never having held a position of employment. Thus,
the Government claims that his livelihood has been selling drugs. The Government
contends that the images and videos along with the indicia of drug distribution and

packaging material found inside 2120 East Monroe Street in May 2022 establish that

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Defendant made his living selling drugs well after the sales to the CS in July and August
of 2021.

In United States v. Craft, 99 F.4th 407 (7th Cir. 2024), the Seventh Circuit noted that
courts should not employ a “simple balancing test” comparing the frequency of lawful
activities with those that are unlawful. Id. at 411. Instead, courts are to consider “both the
frequency and significance of the illicit activities, including factors such as quantities
dealt, customer interactions, keeping tools of the trade and business records, and
accepting payment.” Id. (internal quotation marks and citations omitted). In Craft, the
Seventh Circuit found the evidence insufficient to support the enhancement when the
only evidence presented was that defendant had transferred methamphetamine to his
roommate at the home on “several” occasions for later distribution. Id. There was no
evidence that Defendant sold methamphetamine to anyone else at the home. Id.
Moreover, law enforcement did not find any other evidence of drug activity that might
suggest that defendant primarily used the premises for drug distribution. Id. The court
also found significant the fact that on most occasions, defendant transferred drugs to his
roommate at a local gas station and not at the home. Id. at 411-12. This suggested that the
distribution of drugs was not a “primary or principal” use of the premises and was
merely incidental to their residence at the home. Id.at 412. While the fact that a defendant
may make his livelihood selling drugs can be a relevant consideration, that is “not
sufficient, by itself, to support the application of the premises enhancement. After all, the
fact that a defendant earns his entire livelihood selling drugs does not necessarily mean
he manufactures or sells those drugs at his home. Any other conclusion would be

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divorced from the text of the enhancement, which provides for a two-level enhancement
only if the premises is maintained for the purpose of ‘manufacturing or distributing’ a
controlled substance.” [d. at 412-13.

Unlike the defendant in Craft, Mr. Jackson had a separate primary residence in
Springfield where he resided. Defendant owned and maintained sole control over the
Monroe Street residence during the period in question. Defendant does not suggest any
other use of the residence. At Defendant's direction, all three drug transactions took place
at 2120 East Monroe Street. Nine or ten months later, pursuant to a search warrant, DEA
agents located several materials that tested positive for the presence of drugs and which
are commonly used for trafficking illegal substances. The execution of the search warrant
at Defendant’s primary residence did not produce any illegal substances or related
materials. Additionally, the images and videos showing Defendant with a large amount
of U.S. currency or wearing expensive jewelry are dated well after the drug transactions
in August of 2022. The Court concludes that all of these factors along with Defendant's
lack of any employment history indicate that 2120 East Monroe was maintained “for the
purpose of manufacturing or distributing a controlled substance.” Thus, the 2-level
enhancement under § 2D1.1(a)(12) is appropriate, and Defendant’s Objection is
OVERRULED.

IV. Remaining Objections

Defendant objects to certain guideline calculations based on the other objections
he has advanced. The Court will address the calculations when the sentencing hearing

resumes.

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Defendant also objects to paragraph 49 and claims he did not strike Marcus
Holmes in the head with an object when he committed the offense of home invasion in
2007. He does not admit he hit anyone on the head or used, threatened, or attempted to
use physical force. Defendant makes the same objection to paragraph 37 in Case Number
22-cr-30061. Pursuant to Rule 32(i)(3)(B), the Court finds that a ruling on these objections
are unnecessary because the matter will not affect sentencing.

Defendant objects to paragraph 88 which states he is a member of the Gangster
Disciples. He acknowledges being a member of the gang SQAD (Shoot Quick Avoid
Death) but denies being a current or former member of the Gangster Disciples. Defendant
makes the same objection to paragraph 75 in Case Number 22-cr-30061. Pursuant to Rule
32(i)(3)(B), the Court finds that a ruling on these objections are unnecessary because the
matter will not affect sentencing.

The Clerk is Directed to send a copy of this Order to the United States Probation

Office.

ENTER: August 21, 2024

LMA

OLLEEN RX LAWLESS
UNITEDSTATES DISTRICT JUDGE

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