Memorandum Order — United States v. Javon D. Jackson (Dkt. 61, April 5, 2022)

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Document 61, filed April 5, 2022, in Case 1:21-cr-00038-LPS, in the U.S. District Court for the District of Delaware: a Memorandum Order by Honorable Leonard P. Stark in United States of America v. Javon D. Jackson, Crim. No. 21-38-LPS. The Court overrules any of Jackson's remaining objections to the presentence investigation report, following its March 8, 2022 Memorandum Order on whether Delaware's controlled substances statute is divisible by drug type. It addresses his arguments that the statute is still overbroad and that the word "heroin" in his state plea agreement is unclear, and states that the lists of opium derivatives under Delaware and federal law differ only as to drotebanol. The order restates that the applicable Guidelines are 262 to 327 months imprisonment.

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Case 1:21-cr-00038-LPS Document 61 Filed 04/05/22 Page 1 of 4 PageID #: 399

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

UNITED STATES OF AMERICA,

V. Crim. No. 21-38-LPS

JAVON D.JACKSON,

Defendant.

MEMORANDUM ORDER

WHEREAS,Defendant Javon D. Jackson pled guilty to one count of possession of a

firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1){see

generally D.I. 34);

WHEREAS,on February 4,2022,U.S. Probation and Pretrial Services filed a final

presentence investigation report(D.I. 43)("PSR");

WHEREAS,Jackson and the government submitted initial briefing on Jackson's

objections to the PSR,including his objection that Delaware's controlled substances statute is

overbroad, such that a violation of it should not qualify as a controlled substance offense for

purposes ofthe career offender enhancement in the United States Sentencing Guidelines

("U.S.S.G." or "Guidelines"){see generally D.I. 42,44,46,47);

WHEREAS,on February 11, 2022,the Court heard oral argument {see Feb. 11 Tr.);

WHEREAS,the parties subsequently submitted supplemental briefing {see generally D.l.

49, 50, 51, 52, 53);

WHEREAS,on March 8, 2022,the Court issued a Memorandum Order, in which the

Court held that the government met its burden to show that Delaware's controlled substances

1
Case 1:21-cr-00038-LPS Document 61 Filed 04/05/22 Page 2 of 4 PageID #: 400

statute is divisible by drug type (see generally D.I. 54);

WHEREAS,the Court has further considered all the arguments presented by the parties

in the initial and supplemental briefing, as well as their arguments during the February

sentencing hearing;

NOW,THEREFORE,IT IS HEREBY ORDERED that, for the reasons given below,

any of Jackson's remaining objections to the PSR are OVERRULED.

1. Jackson argues that even if Delaware's controlled substances statute is divisible

by drug type, as the Court has now held, the relevant provision ofthe statute is still overbroad, so

his May 2017 conviction still does not qualify as a controlled substance offense under the

Guidelines. (Feb. 11 Tr. at 15-16) The statute Jackson pled guilty to violating provides, in

pertinent part, that "any person who ...[mjanufactures, delivers, or possesses with the intent to

manufacture or deliver a controlled substance in a Tier 2 quantity ... shall be guilty of a class C

felony." 16 Del. C. § 4753(2017);see also D.I 47-2. Jackson's plea agreement indicates that

he was convicted of possession with intent to deliver heroin. (D.I. 47-4) Delaware law defines

a "Tier 2 quantity" of heroin as"2 grams or more ofany morphine, opium or any salt, isomer or

salt ofan isomer thereof, including heroin, as described in § 4714 ofthis title, or of any mixture

containing any such substance." 16 Del. C. § 475lC(4)(b)(2017); see also D.I. 47-3. In tum,

§ 4714 states that "[a]ny ofthe following opium derivatives, their salts, isomers and salts of

isomers," are included in Schedule I of controlled substances under Delaware law,"unless

specifically excepted." 16 Del. C. § 4714(c)(2017). The provision goes on to list 23 opiirni

derivatives, including drotebanol. See id.

2. Similarly, the federal controlled substances statute lists 22 possible opium
Case 1:21-cr-00038-LPS Document 61 Filed 04/05/22 Page 3 of 4 PageID #: 401

derivatives. See 21 U.S.C. § 812(c). That federal list is nearly the same as the Delaware list in

16 Del. C. § 4714(c). The only difference is that the federal list omits drotebanol. (See D.I. 42

at 7-8)(Jackson acknowledging that state and federal lists are otherwise "identical") Even so,

drotebanol is still federally regulated as a Schedule 1 narcotic with a DBA number of9335.

(D.l. 47-7 at 19) Thus, Delaware law "does not criminalize more substances" than federal law

does. (D.l. 47 at 3)

3. Jackson argues that it is xmclear whether the word "heroin" in his state plea

agreement refers to substances besides heroin, such as designer heroin. (See Feb. 11 Tr. at

16) The Court understands the plea agreement's use of"heroin" as referring to Jackson's

pleading guilty to a violation of 16 Del. C. § 4753(1) where the Tier 2 quantity of a controlled

substance was established imder the opium derivatives provision discussed above,

§ 4751C(4)(b). The plain language of§ 4751C(4)(b) does not refer to designer heroin. Rather,

that provision encompasses the substances listed in § 4714(c)and any mixtures containing those

substances. For the reasons explained above,there is no mismatch between § 4714(c) and the

substances regulated imder federal law. (See generally Feb. 11 Tr. at 20-22)

4. In sum,Jackson's arguments do not persuade the Court that it should sustain his

objections to the PSR. Thus, as the Court previously held, because Jackson qualifies as a career

offender,the Guidelines applicable to him, and from which the Court will begin its analysis in
Case 1:21-cr-00038-LPS Document 61 Filed 04/05/22 Page 4 of 4 PageID #: 402

determining an appropriate sentence, are 262 to 327 months imprisonment. {See D.I. 54 at 2;

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