                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3849

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

H ARVEY C. JACKSON IV,
                                          Defendant-Appellant.


            Appeal from the United States District Court
                 for the Southern District of Illinois.
       No. 06-CR-30136-DRH—David R. Herndon, Chief Judge.



   A RGUED JANUARY 12, 2009—D ECIDED F EBRUARY 18, 2009




   Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
S YKES, Circuit Judges.
  E ASTERBROOK, Chief Judge. Harvey Jackson pleaded
guilty to two drug crimes plus possessing firearms in
furtherance of a drug-trafficking offense. 18 U.S.C. §924(c).
Before being sentenced he sought to withdraw the plea
on the weapons count while leaving the guilty pleas on
other counts in place. The district court held a hearing,
concluded that Jackson’s testimony about the nature of
his lawyer’s advice (and the state of his own knowledge)
2                                              No. 07-3849

was dissimulation, and denied the motion. Jackson was
sentenced to a total of 87 months’ imprisonment—27 on
each drug conviction (to run concurrently), followed by
60 on the firearms charge.
  Jackson does not press in this court his contention
that his lawyer misled him about the nature of the charges
and the likely consequences of a guilty plea. Instead he
contends that he is innocent of the charge because he
possessed the guns for his protection—and District of
Columbia v. Heller, 128 S. Ct. 2783 (2008), holds that the
Constitution’s second amendment entitles people to
have handguns in the home for self-protection.
  The Court said in Heller that the Constitution entitles
citizens to keep and bear arms for the purpose of lawful
self-protection, not for all self-protection. Jackson was
distributing illegal drugs (cocaine and unlicensed
dextromethorphan hydrobromide tablets) out of his
home. The Constitution does not give anyone the right to
be armed while committing a felony, or even to have
guns in the next room for emergency use should sup-
pliers, customers, or the police threaten a dealer’s stash.
Jackson says that he lived in a dangerous neighborhood
and wanted to protect himself from burglars and other
marauders. That may be so, but his decision to operate
an illegal home business also matters. Suppose a federal
statute said: “Anyone who chooses to possess a firearm
in the home for self-protection is forbidden to keep or
distribute illegal drugs there.” Such a statute would be
valid, as Jackson’s lawyer conceded. And if Congress may
forbid people who possess guns to deal drugs, it may
No. 07-3849                                               3

forbid people who deal drugs to possess guns. The state-
ments “if you have a gun, you can’t sell cocaine” and “if
you sell cocaine, you can’t have a gun” are identical.
  So there is no constitutional problem with separating
guns from drugs, and the right question is whether the
record contains a factual basis for the plea of guilty.
Section 924(c) makes it a crime to possess a firearm “in
furtherance of” a drug-trafficking offense. Jackson
observes that agents found the guns in the bedroom of
his apartment, while the drugs were prepared, kept, and
sold in other rooms. His problem is that he has re-
peatedly said that he possessed the guns to protect
himself while at home—and it was from his home that he
distributed illegal drugs. The record contains a report by
a federal drug-control agent summarizing Jackson’s
statements and observing that a drug dealer who speaks
of “protection” means protection of the drug business,
for that is where the principal risk lies. (Drug dealers
are much more likely to be robbed by suppliers and
customers than a householder chosen at random is apt
to be the subject of burglary, because the suppliers and
customers know that the drug purveyor can’t turn to the
police for help; this makes dealers especially attractive
targets.) The written plea agreement states that “possession
[of the guns] was in furtherance of the drug crime de-
scribed in count 2” (distributing cocaine). Jackson repre-
sented that he “agrees and admits” this element. In
open court the judge asked Jackson whether he had read
the plea agreement and stood by his representations;
Jackson (who is literate) said yes. That’s an adequate
factual basis for the plea. The judge also ensured that
4                                              No. 07-3849

Jackson had discussed the facts, the legal standards, and
potential defenses thoroughly with counsel.
  At the hearing on his motion to withdraw the plea,
Jackson contradicted these representations. The judge
found that he had told the truth when entering the plea
and was lying in an attempt to get out of it. “[T]he
Court finds the only times that Jackson told the truth as
to this matter are in his Stipulation of Facts [in the plea
agreement] and during the Rule 11 hearing.” Jackson
should count himself lucky that he has not been
prosecuted for perjury, 18 U.S.C. §1621, or making incon-
sistent declarations under oath, 18 U.S.C. §1623(c).
There would be fewer self-serving and self-contradictory
efforts to avoid one’s commitments if prosecutors held
defendants to their statements when pleading guilty.
                                                A FFIRMED




                          2-18-09
