United States of America v. Russell Kimble Jackson, also known as Russell Kimble Jackson, V

United States Court of Appeals
For the Eighth Circuit
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No. 20-3684
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United States of America
Plaintiff - Appellee
v.
Russell Kimble Jackson, also known as Russell Kimble Jackson, V
Defendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Central
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Submitted: November 15, 2021
Filed: February 2, 2022
[Unpublished]
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Before BENTON, KELLY, and ERICKSON, Circuit Judges.
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PER CURIAM.
Russell Jackson pled guilty to possession of cocaine with intent to distribute,
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court1 designated
Jackson as a career offender because of his two prior Iowa marijuana convictions.
1 The Honorable Rebecca Goodgame Ebinger, United States District Judge for
the Southern District of Iowa.

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The court sentenced Jackson to a below-guidelines prison term of 132 months and
imposed a $23,282 fine based on unforfeited cash in the government’s possession
that the court determined to be proceeds of uncharged drug activity. Jackson appeals
his career offender status and the fine. We affirm.
We review de novo a defendant’s classification as a career offender. United
States v. Clayborn, 951 F.3d 937, 939 (8th Cir. 2020). The career offender
enhancement applies if a “defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a).
The guidelines in turn define “controlled substance offense” as “an offense under
federal or state law, punishable by imprisonment for a term exceeding one year, that
prohibits” the distribution or possession with intent to distribute a controlled
substance. U.S.S.G. § 4B1.2(b). We use a categorical approach to determine
whether a prior conviction qualifies as a career offender predicate. United States v.
Thomas, 886 F.3d 1274, 1275 (8th Cir. 2018). “[W]hen a federal enhancement
provision incorporates state offenses by language other than a reference to generic
crimes, the . . . inquiry is focused on applying the ordinary meaning of the words
used in the federal law to the statutory definition of the prior state offense.” United
States v. Boleyn, 929 F.3d 932, 936 (8th Cir. 2019).
Jackson was convicted of possessing marijuana with intent to deliver in 2006
and delivery of marijuana in 2007, both felonies under Iowa Code § 124.401(1)(d).
At the time, Iowa law defined marijuana to include hemp, Iowa Code § 124.101(19)
(2006), as did the federal Controlled Substances Act (“CSA”), 21 U.S.C. § 802(16)
(2006). Congress later amended the federal definition of marijuana to exclude hemp.
See 21 U.S.C. § 802(16)(B)(i); Agriculture Improvement Act of 2018, Pub. L. No.
115-334, § 12619(a), 132 Stat. 4490, 5018 (2018). Jackson contends that the CSA
amendment, which took effect before he was sentenced for the instant offense,
generically defines marijuana for purposes of the career offender enhancement.
Because the Iowa definition more broadly included hemp when he was convicted of
the prior offenses, Jackson asserts that his marijuana convictions run afoul of the
categorical approach.

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Jackson’s argument is foreclosed by our recent decision in United States v.
Henderson, 11 F.4th 713 (8th Cir. 2021). We determined in Henderson that U.S.S.G.
§ 4B1.2(b) contains “no requirement that the particular substance underlying the
state offense is also controlled under [the CSA].” Id. at 718. Instead, we agreed
with the Fourth Circuit’s interpretation that the “ordinary meaning of . . . ‘controlled
substance,’ is any type of drug whose manufacture, possession, and use is regulated
by law.” Id. (emphases omitted) (quoting United States v. Ward, 972 F.3d 364, 371
(4th Cir. 2020)). Jackson concedes he was convicted of delivering and possessing
with intent to deliver marijuana, a drug regulated by Iowa law. Whether the statute
additionally proscribed hemp within the definition of marijuana is immaterial.
Attempting to distinguish Henderson, Jackson emphasizes that Iowa, too, has
removed hemp from its marijuana definition since his convictions occurred. See
Iowa Code § 124.401(6). But we may not look to “current state law to define a
previous offense.” McNeill v. United States, 563 U.S. 816, 822 (2011); see also
United States v. Santillan, 944 F.3d 731, 733 (8th Cir. 2019) (explaining that “a prior
conviction qualifies as a ‘felony drug offense’ if it was punishable as a felony at the
time of conviction”). Jackson’s uncontested prior marijuana convictions under the
hemp-inclusive version of Iowa Code § 124.401(1)(d) categorically qualified as
controlled substance offenses for the career offender enhancement.2
We likewise reject Jackson’s arguments disputing the $23,282 fine. “A
district court’s imposition of a fine and the determination of the amount of the fine
will not be reversed unless clearly erroneous.” United States v. Allmon, 500 F.3d
800, 807 (8th Cir. 2007) (quoting United States v. Berndt, 86 F.3d 803, 808 (8th Cir.
1996)). At a forfeiture hearing held before sentencing, the district court concluded
that the disputed funds were Jackson’s drug proceeds but that they did not satisfy the
offense-specific nexus required for forfeiture. See Fed. R. Crim. P. 32.2(b)(1)(A)
2 The applicable career offender guideline independently resulted in a higher
offense level, mooting Jackson’s challenge to the specific offense characteristic for
maintaining a drug stash house, U.S.S.G. § 2D1.1(b)(12). See United States v.
LeGrand, 468 F.3d 1077, 1082 (8th Cir. 2006).

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(“If the government seeks forfeiture of specific property, the court must determine
whether the government has established the requisite nexus between the property
and the offense.”). At sentencing, the government then sought a fine in the amount
of the disputed funds. The district court found that Jackson had acquired “significant
proceeds from his drug trafficking” as “reflected in the $23,282 in the custody of the
government,” and ordered a fine in that amount. Jackson objected on the grounds
that it was “unnecessary in this case.”
On appeal, Jackson claims the district court erred by relying on seized money
to conclude he had the ability to pay a fine. But Jackson’s counsel conceded at
sentencing that the disputed funds were “due to come back to . . . Jackson after th[e]
hearing.” Counsel did not take a position on whether the funds would qualify as an
“asset” but agreed that $23,282 remained from the amount of money seized from
Jackson’s safety deposit box and that this amount had “not been forfeited to the
government.” We find no clear error in the district court’s findings. Jackson’s claim
that the court clearly erred when it failed to make an express finding that he had the
ability to pay the fine is similarly without merit. Although “[a] sentencing court
must make specific factual findings on the record demonstrating that it has
considered the defendant’s ability to pay the fine,” United States v. Patient Transfer
Serv., Inc., 465 F.3d 826, 827 (8th Cir. 2006), the court’s colloquy makes plain that
everyone understood that the government was in possession of sufficient funds
belonging to Jackson for payment of the fine. The district court did not clearly err
in assessing the fine.
We affirm the judgment of the district court.
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