Lucas-Jackson v. USA

Filing 6

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Herbert A Lucas-Jackson, IV. The motion is GRANTED. The Court vacates Petitioners sentence, directs probation to issue a Presentence Investigation Report addendum, and orders a resentencing hearing. Signed on June 4, 2024, by District Judge Greg Kays. (Law clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
HERBERT A. LUCAS-JACKSON, IV,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil No. 4:23-CV-0662-DGK
Crim. No. 4:11-CR-0260-DGK

ORDER GRANTING MOTION TO CORRECT SENTENCE
In 2012, Petitioner pled guilty to two counts of distribution of drugs (Counts One and
Four), one count of being a felon in possession of a firearm (Count Two), and one count of
possession of a firearm in furtherance of drug trafficking (Count Three). The Court sentenced
him as a career offender under the Armed Career Criminal Act (“ACCA”) and imposed
concurrent 202-month sentences on Counts One, Three, and Four, and a consecutive 60-month
sentence on Count Two, for an aggregate sentence of 262 months’ imprisonment. In 2022, the
Eighth Circuit ruled in United States v. Myers that the Missouri convictions used to sentence
Petitioner as a career offender did not qualify as serious drug offenses. 56 F.4th 595 (8th Cir.
2022).
Now before the Court is Petitioner’s Motion to Correct Sentence Under 28 U.S.C.
§ 2255. ECF No. 1. Petitioner notes that in the wake of Myers, his 202-month sentence on
Count 3 is an illegal sentence that exceeds the 10-year statutory maximum. Petitioner also
argues Myers affects the statutory sentencing range in Counts I and IV and could affect his
Guidelines range too. For relief, Petitioner requests a new sentencing hearing.

After careful considering a variety of factors, including the Government’s waiving any
defense related to timeliness, the parties’ arguments concerning the concurrent sentence doctrine,
and the sentencing package doctrine, the motion is GRANTED. The Court vacates Petitioner’s
sentence, directs probation to issue a Presentence Investigation Report addendum, and orders a
resentencing hearing.
Procedural History
On July 30, 2011, St. Joseph, Missouri, Police Department officers attempted to stop
Petitioner on an active parole violation warrant. He then fled from the police in a car, causing an
accident, and then fled from the scene of the accident on foot, successfully evading officers. In
the abandoned car, officers found 6.8 grams of cocaine base (“crack cocaine”), a .40 caliber
handgun, and a bag of marijuana.
On September 19, 2011, officers arrested Petitioner as he was entering a car parked in
front of his residence. Inside the car officers found 13.5 grams of powder cocaine, 15.4 grams of
crack cocaine, and a plastic bag of marijuana. Inside the residence officers found baggies, torn
baggies, a digital scale with white residue, and baking soda—items used to manufacture and
distribute crack cocaine.
On October 19, 2011, a grand jury indicted Petitioner on four felonies. Counts One and
Four alleged possession with intent to distribute cocaine base in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C); Count Two alleged possession of a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i); and Count Three alleged felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Counts One and Four normally carried a statutory range of up to 20 years’ imprisonment
under § 841(b)(1)(C). On June 19, 2012, the Government filed an information under 21 U.S.C.

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§ 851 alleging Petitioner had prior felony drug convictions. The information increased the
statutory range of punishment for Counts One and Four to up to 30 years’ imprisonment.
On July 2, 2012, Petitioner pled guilty to all charges without a plea agreement.
Because of three prior Missouri convictions for selling cocaine, 1 the PSR determined
Petitioner was an armed career criminal under 18 U.S.C. § 924(e). As a result, the statutory
range of punishment for Count Three increased from a maximum of 10 years to 15 years to life
imprisonment. 18 U.S.C. § 924(a)(2).
The PSR also determined that because of his prior felony state drug offenses, Petitioner
was a career offender under U.S.S.G. § 4B1.1. Utilizing the career offender provisions, the PSR
calculated a base offense level of 34 but applied a three-level reduction for acceptance of
responsibility, yielding a total offense level of 31 and an aggregate advisory Guidelines range of
262 to 327 months.

The PSR calculated a criminal history score of 14, yielding a criminal

history category of VI. The PSR cited a statutory range of punishment of up to 30 years on
Counts One and Four; 15 years to life on Count Three; and a consecutive five years to life on
Count Two. The PSR also determined the supervised release range was four to five years on
Counts One and Four and not more than five years on Counts Two and Three. Petitioner did not
file any written objections to the PSR.
On January 24, 2013, this Court imposed concurrent 202-month sentences—the low end
of the Guidelines range—on Counts One, Three, and Four, and a consecutive 60-month sentence
on Count Two, for an aggregate sentence of 262 months’ imprisonment, and concurrent terms of
five years’ supervised release. Petitioner did not appeal.

The PSR noted Petitioner had three prior convictions pertaining to distribution/delivery or manufacture of cocaine
in Buchanan County, Missouri, case nos. 09BU-CR1664-01, 09BU-CR01900-01, and 09BU-CR01899-01.
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Petitioner is currently incarcerated at the federal correctional institution in Florence,
Colorado, with a projected release date of February 14, 2032.
Standard of Review
In a proceeding brought under 28 U.S.C. § 2255, the district court may “vacate, set aside
or correct [a] sentence” that “was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a).
Discussion
At the outset, the Court expresses its gratitude to the attorneys for their clear, effective,
and short briefing on the issues presented.
The Government has waived any defense related to the timeliness of Petitioner’s motion.
It also agrees that if Petitioner were sentenced today, he would no longer have any qualifying
serious drug felony convictions and would not be an armed career criminal.
The Government nonetheless opposes the motion. The Government argues that since
Petitioner received concurrent sentences of 202 months imprisonment on Counts One and Four,
the Court should deny relief under the concurrent sentence doctrine. 2 It argues the Court’s
statements during the sentencing hearing demonstrates it would not have imposed a lesser
sentence. It notes the Court observed that in the instant offense, Petitioner fled from police,
causing a serious risk to the community, and while possessing a firearm and crack and powder
cocaine. He also received a lenient sentence for his prior drug convictions, and then absconded
from supervision and went back to selling drugs. But the Government also notes the Court
credited Petitioner for accepting responsibility and being honest with law enforcement, and that

“The concurrent sentence doctrine allows courts to decline to review the validity of a concurrent conviction or
sentence when a ruling in the defendant’s favor would not reduce the time he is required to serve or otherwise
prejudice him in any way.” Eason v. United States, 912 F.3d 1122, 1123 (8th Cir. 2019).
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the Court ultimately imposed a sentence at the bottom of the advisory Sentencing Guidelines
range.
Petitioner argues the Court should grant his request for relief under § 2255 because he
was incorrectly sentenced under the ACCA. Petitioner argues the concurrent sentence doctrine is
inapplicable here and the sentencing package doctrine mandates holding a resentencing hearing.
With respect to the concurrent sentencing doctrine, Petitioner first points out the Court imposed a
bottom-of-the-Guidelines sentence despite the Government’s request for a mid to high range
sentence, which suggests the Court was at least open to considering a lesser sentence. He also
notes the Court explicitly referenced Petitioner’s ACCA status as a basis for its sentence. 3
Second, Petitioner notes in cases applying the concurrent sentence doctrine the court
typically indicates on the record it would have imposed the same sentence regardless of the
validity of the defendant’s objection or ACCA status.
Third, the § 851 enhancements the Court applied on Counts One and Four improperly
expanded his statutory sentencing range on Count One and Four. Thus, the proper statutory
maximum on Counts One and Four was twenty years, not thirty, as the Court believed at the
original sentencing. Thus, the sentence the Court imposed at the original sentencing hearing was
much less than the maximum it could have imposed but is not much below the correct statutory
maximum of 240 months imprisonment. He contends the Court should have the opportunity to
reassess the sentence in relation to the correct statutory maximum.
Fourth, while Petitioner cannot demonstrate his aggregate corrected Sentencing
Guidelines range would be reduced since his prior cocaine convictions are still controlled

The Court stated during the sentencing hearing, “But you’ve got a very serious criminal history that’s made you—
classified you as a type of person who gets a more severe punishment because of your criminal history. . . . So this
armed career criminal designation is serious, obviously, and you know that.” Sent. Tr. at 21, Crim. ECF No. 33.

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substance offenses under the U.S.S.G § 4B1.2(b), this may change with revisions to the
Guidelines.
Finally, Petitioner notes that he completely accepted responsibility for his actions and
from 2014 to present, he has not made any filings, including, as Petitioner puts it, “meritless
compassionate release motions, or other ticky-tacky filings, like so many other inmates do that
waste this Court’s judicial resources.” Reply at 9, ECF No. 5.
Petitioner also contends the sentencing package doctrine 4 weighs in favoring of ordering
a resentencing hearing here. Petitioner notes it is not unusual in the Western District of Missouri
for the Government to ask for a full resentencing under this doctrine.
After carefully considering the parties’ arguments, the Court declines to apply the
concurrent sentencing doctrine here and instead applies the sentencing package doctrine. The
Court declines to apply the concurrent sentencing doctrine because this is not a case where the
Court said at the time of the original sentencing that it would impose the same sentence
regardless of Petitioner’s ACCA status or the Sentencing Guidelines. Applying the sentencing
package doctrine makes more sense so the Court can consider all available information in
fashioning an appropriate sentence under § 3553(a), including changes in the law and
Petitioner’s behavior while incarcerated. But the Court cautions Petitioner that the fact that it is
ordering a new sentencing hearing does not necessarily mean the Court will impose a lesser
sentence.

Under the sentencing package doctrine, a court may vacate the entire sentence on all counts and then reconfigure it
to ensure that it remains adequate to satisfy the sentencing factors in 18 U.S.C. § 3553(a). United States v.
McArthur, 850 F.3d 925, 943 (8th Cir. 2017). The doctrine is often applied in cases involving “multicount
indictments and a successful attack by a defendant on some but not all of the counts of conviction.” Id.

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Conclusion
For the reasons discussed above, the motion is GRANTED.

The Court vacates

Petitioner’s sentence, directs probation to issue a Presentence Investigation Report addendum,
and orders a resentencing hearing.
IT IS SO ORDERED.
Date:

June 4, 2024

/s/ Greg Kays
GREG KAYS, JUDGE
UNITED STATES DISTRICT COURT

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