On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. No. 03-cr-00642). District Judge: Honorable Michael M. Baylson.
The opinion of the court was delivered by: Aldisert, Circuit Judge
Submitted Under Third Circuit LAR 34.1(a) March 9, 2006
Before: ROTH and ALDISERT, Circuit Judges, and RODRIGUEZ,*fn1 District Judge.
In Anthony Jackson's appeal from a conviction and sentence in the United States District Court for the Eastern District of Pennsylvania, we join several sister courts of appeals in holding that 21 U.S.C. § 841(a)(1) (possession of a controlled substance with intent to distribute) is a lesser-included offense of 21 U.S.C. § 860(a) (possession of a controlled substance with intent to distribute within 1,000 feet of a school).
His appeal also requires us to decide whether: (1) a supplemental jury instruction issued by the District Court was unduly coercive; (2) sufficient evidence existed in the record for the trier of fact to have found beyond a reasonable doubt that Jackson's presence within 1,000 feet of a school was voluntary; and (3) Jackson received sufficient notice of the results of the school zone measurements that the government intended to introduce at trial. We have jurisdiction to hear the instant appeal pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). We will affirm Jackson's conviction for violating § 860(a), vacate his conviction and sentence for the lesser-included offence of violating § 841(a)(1), and remand for resentencing.
On April 3, 2003, two officers of the Philadelphia Police Department were patrolling West Philadelphia when they came upon a car stopped at a red light at the intersection of 64th Street and Elmwood Avenue. When the light turned green, the car did not move. After waiting a few seconds the officers honked the horn of their vehicle and activated their vehicle's siren for a full cycle. The car still did not move. The officers next pulled alongside the stopped car and saw the defendant, Jackson, slumped and unmoving behind the steering wheel. They then approached the driver's door of Jackson's vehicle, whereupon they yelled through the driver's window and banged on it heavily, without receiving a response from Jackson.
Under the impression that Jackson needed medical attention, the officers decided to enter the vehicle. They reached through a crack in the window, lowered the window and opened the driver's door. The officers found that the car was still in drive with Jackson's foot depressing the brake pedal. While reaching in to put the vehicle into park, they noticed something on Jackson's lap -- two baggies that they believed to carry marijuana and cocaine. All the while, Jackson remained sound asleep. It was not until one of the officers put handcuffs on Jackson that he awoke. Jackson was then arrested. Upon later analysis, it was found that the baggies contained 48.35 grams of cocaine base and 4.02 grams of marijuana. A handgun was also recovered from Jackson's car.
After a federal grand jury returned an indictment against Jackson on September 25, 2003, two superceding indictments were subsequently entered on March 23, 2004 and August 5, 2004. He was brought to trial on the August indictment, which charged him with four counts: (1) possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1);*fn2 (2) possession with intent to distribute more than five grams of cocaine base within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a);*fn3 (3) knowing possession of a handgun during the commission of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1); and (4) possession of a handgun by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
A jury trial began on November 1, 2004, and two days later the jury returned a guilty verdict as to Counts One and Two, and acquittals on Counts Three and Four. For violating § 841(a)(1), the Court sentenced Jackson to 300 months in prison, a $1,000 fine and a $100 special assessment. For violating § 860(a), the Court sentenced him to 300 months in prison, to run concurrently to the sentence for Count One, and a $100 special assessment. For each count, he also received an eight-year period of supervised release, to run concurrently. This appeal of his conviction and sentence followed.
Jackson first contends that the supplemental charge issued by the Court unduly coerced the jury into reaching a conviction because it improperly raised the specter of a new trial ...