United States v. Henry Irons Johnson , 300 F. App'x 850 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 26, 2008
No. 08-10317 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00492-CR-01-ODE-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
HENRY IRONS JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 26, 2008)
Before MARCUS, PRYOR and KRAVITCH, Circuit Judges.
PER CURIAM:
Henry Irons Johnson appeals his sentence of imprisonment for 180 months
for conspiracy to distribute and possession with intent to distribute at least five
kilograms of cocaine. 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846. Johnson argues
that he was entitled to a downward adjustment for his acceptance of responsibility,
United States Sentencing Guidelines § 3E1.1 (Nov. 2003), and his sentence was
unreasonable. We affirm.
I. BACKGROUND
Johnson was arrested after he assumed control of what he believed to be 33
kilograms of cocaine. Police also discovered 5653 grams of marijuana in
Johnson’s vehicle. Johnson admitted that he had received two similar shipments of
cocaine and agreed to make contact with his supplier.
Johnson was later indicted for conspiracy to distribute and possession with
intent to distribute at least five kilograms of cocaine, 21 U.S.C. §§ 841(a)(1), 841
(b)(1)(A), 846, and released on bond. Johnson appeared in the district court on
March 27, 2007, to plead guilty to both charges, but the court was concerned with
the plea form and rescheduled the hearing. After Johnson left the courthouse,
Johnson attempted but failed to elude arrest for several traffic offenses and the
possession of less than one ounce of marijuana. The arresting officer also
discovered $3900 in Johnson’s possession. The district court revoked Johnson’s
bond and incarcerated him.
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Johnson entered a blind plea of guilty to both charges, and the presentence
investigation report listed Johnson’s base offense level at 34. U.S.S.G. §
2D1.1(c)(3). The report recommended against a downward adjustment for
acceptance of responsibility because “Johnson failed to withdraw from criminal
conduct” as evidenced by his March 27 arrest. Based on a criminal history
category of III, the report provided a sentencing range between 188 and 235
months of imprisonment.
Johnson filed a tardy objection to the report and challenged the denial of a
downward adjustment for acceptance of responsibility. At the sentencing hearing,
Johnson argued that he had cooperated with law enforcement and had accepted
marijuana from another individual on March 27 to facilitate a future sting
operation. The government argued that Johnson was not entitled to a downward
adjustment because he did not provide substantial assistance to law enforcement.
The district court overruled Johnson’s objection and found that Johnson was
not entitled to an adjustment for acceptance of responsibility. The district court
stated that Johnson had a higher criminal history level than a codefendant; Johnson
“dealt in a lot of drugs before he got caught”; and the court could not “put a good
spin on the incident where . . . Johnson had the marijuana.” The court also stated
that it was “aware of the fact that . . . [it did not] have to give a guideline sentence.”
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The district court sentenced Johnson to concurrent terms of 180 months of
imprisonment and concurrent terms of five years of supervised release.
II. STANDARDS OF REVIEW
We “review the district court’s determination of acceptance of responsibility
only for clear error.” United States v. Amedeo, 370 F.3d 1305, 1320 (11th Cir.
2004). Because “‘[t]he sentencing judge is in a unique position to evaluate a
defendant’s acceptance of responsibility,’” we give that finding “‘great deference
on review.’” United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005)
(quoting U.S.S.G. § 3E1.1 cmt. n.5). We review the reasonableness of a criminal
sentence for an abuse of discretion. Gall v. United States, 128 S. Ct. 586, 594,
596–97 (2007). “[T]he party who challenges the sentence bears the burden of
establishing that the sentence is unreasonable in the light of both [the] record and
the factors in section 3553(a).” United States v. Talley, 431 F.3d 784, 788 (11th
Cir. 2005).
III. DISCUSSION
Johnson presents two challenges to his sentence. First, Johnson argues that
he was entitled to a downward adjustment for his acceptance of responsibility.
Second, Johnson argues that his sentence is unreasonable. We address each issue
in turn.
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A. The District Court Did Not Clearly Err By Denying Johnson a Downward
Adjustment.
A defendant may receive a two-level downward adjustment for his
acceptance of responsibility for the charged offense. U.S.S.G. § 3E1.1(a). A plea
of guilty before trial and truthful admissions about the charged conduct constitutes
“significant evidence of acceptance of responsibility[,]” but may be “outweighed
by conduct . . . that is inconsistent with such acceptance . . . .” Id. § 3E1.1 cmt.
n.1. If a defendant “continues to participate in the conduct that formed the basis of
the offense for which he was sentenced . . . [he] is not entitled to a reduction for
acceptance of responsibility.” United States v. Villarino, 930 F.2d 1527, 1529
(11th Cir. 1991).
The record supports the denial of the downward adjustment. Johnson was
apprehended while trafficking in drugs and admitted that, on the same day he was
to plead guilty, he accepted a “small sample of marijuana” from another individual.
Johnson attempted to elude arrest and was captured when his motorcycle became
mired in a ditch. Although Johnson alleged that he accepted the drugs to facilitate
a future sting operation, the district court was entitled to find that this argument
was incredible. The district court did not clearly err by denying Johnson a
downward adjustment for acceptance of responsibility.
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B. Johnson’s Sentence Is Reasonable.
The district court did not abuse its discretion by imposing a sentence below
the advisory guideline range. Johnson argues that the district court did not
consider the sentencing factors under section 3553(a) or the parismony principle,
but the record refutes this argument. The district court considered Johnson’s prior
criminal history, contrasted that history with the history of Johnson’s codefendant,
acknowledged that the guidelines were advisory, and decided to depart from the
guideline range and impose a lower sentence. See 18 U.S.C. § 3553(a); Gall, 128
S. Ct. at 597. Johnson’s sentence is reasonable.
IV. CONCLUSION
Johnson’s sentence is AFFIRMED.
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