United States Court of Appeals, District of Columbia Circuit
November 8, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cr-00222-1)
G. Roland, Assistant Federal Public Defender, argued the
cause for appellant. With her on the brief was A.J. Kramer,
Federal Public Defender. Tony Axam, Jr., Assistant Federal
Public Defender, entered an appearance.
Hart-Mahan, Attorney, U.S. Department of Justice, argued the
cause for appellee. With her on the brief was Gregory Victor
Davis, Attorney. Frank P. Cihlar, Attorney, U.S. Department
of Justice, entered an appearance.
Before: Kavanaugh and Pillard, Circuit Judges, and Randolph,
Senior Circuit Judge.
Randolph, Senior Circuit Judge
Norman Jackson appeals his above-Guidelines sentence of
imprisonment on the grounds that the district court failed to
give valid reasons for his sentence and that the reasons the
court did mention were invalid.
began committing his crime in this case while he was pleading
guilty and being sentenced for a nearly identical crime.
After being sentenced for his first offense, Jackson
continued his criminal activity, despite the district
court's leniency in giving him probation rather than
earlier crime involved Unlimited Security, Inc., a company he
founded and co-owned. The company provided security services
to the local and federal government. At one time, Unlimited
Security employed as many as 500 people. In 2002, his company
filed for Chapter 11 bankruptcy protection. Unlimited
Security had collected federal tax withholdings from the
wages of its employees. Jackson's company was obligated
to pay these tax withholdings to the U.S. Treasury. Instead,
while his company was in bankruptcy, Jackson - as the
company's chief executive officer - diverted $373, 000 to
another one of his businesses. In 2006, Judge Urbina of the
United States District Court for the District of Columbia
sentenced him to five years' probation.
on probation for that crime, and before his sentencing in
October 2006, Jackson began committing the offense for which
he was sentenced in this case. In 2005 he formed Innovative
Security Services, LLC. For the next four years, he failed to
pay a total of nearly $600, 000 in federal payroll taxes that
his company had withheld from the wages of its employees.
Jackson used these funds for personal items such as jewelry,
clothing, furniture, and rent. After entering into an
agreement with the government, Jackson again pleaded guilty,
this time to a violation of 26 U.S.C. § 7202 - willful
failure to pay over federal employment taxes. A violation of
§ 7202 carries a five-year maximum sentence of
imprisonment. Jackson's plea agreement placed his
Sentencing Guidelines range at 27-33 months; his plea
agreement stated that this sentencing range was not binding
on the district court. The district court sentenced Jackson
to 42 months' imprisonment - 9 months more than the top
of the Guidelines range. The sentence included an order for
Jackson to make restitution and to serve a term of supervised
wants his sentence set aside because, at the hearing, the
district court did not sufficiently explain the reasons for
it. At sentencing, a district court must provide "the
specific reason" for a sentence outside the Guidelines
range. 18 U.S.C. § 3553(c)(2); see Gall v. United
States, 552 U.S. 38, 50 (2007). When the court announced
Jackson's sentence of 42 months, his attorney did not
object. To prevail in his appeal, Jackson must therefore
convince us that the district court (1) "committed
error"; (2) that the error was "plain or
obvious"; (3) that it affected "his substantial
rights"; and (4) that it "seriously" affected
"the fairness, integrity, or public reputation of
judicial proceedings." United States v. Hunt,
843 F.3d 1022, 1029 (D.C. Cir. 2016) (alterations and
quotation marks omitted). An error affects "substantial
rights" only if the defendant establishes with "a
reasonably probability that, but for the error, the outcome
of the proceeding would have been different." United
States v. Mack, 841 F.3d 514, 522 (D.C. Cir. 2016)
(quoting Molina-Martinez v. United States, 136 S.Ct.
1338, 1343 (2016)).
little wonder that Jackson's attorney did not interpose
the objection now raised on appeal. Jackson, and anyone else
present at his sentencing hearing, must have understood why
the district court imposed an above-Guidelines sentence of 42
months. A central, uncontested consideration at the hearing
was Jackson's commission of this crime while he was being
sentenced and placed on probation for committing a crime with
a common element - namely, stealing his employees'
withholding taxes to use for his personal benefit.
prosecutor stated that this was "the second time that
this defendant has appeared in this courthouse to be
sentenced for stealing employment taxes." Sentencing
Transcript 3. The prosecutor added that Jackson obviously
knew about his "duty to truthfully account for and pay
over payroll taxes." Id. at 4. Jackson's
past offense not only demonstrated willfulness, but also
proved that despite a lenient sentence, he continued to
commit a nearly identical offense. Id. at 6.
Jackson's attorney acknowledged that Jackson ...