United States v. Mathew Patrick Johnson ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
_____________________________ ELEVENTH CIRCUIT
July 20, 2005
No. 04-11469 THOMAS K. KAHN
Non-Argument Calendar CLERK
_____________________________
D. C. Docket No. 03-00206-CR-1-CB
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MATTHEW PATRICK JOHNSON,
Defendant-Appellant.
___________________________
Appeal from the United States District Court
for the Southern District of Alabama
____________________________
(July 20, 2005)
Before, EDMONDSON, Chief Judge, HULL and WILSON, Circuit Judges.
PER CURIAM:
Defendant-Appellant Matthew Patrick Johnson appeals his sentence for
conspiracy to possess with intent to distribute methamphetamine, in violation of
21 U.S.C. § 846. No reversible error has been shown; we affirm.
Johnson raises a single issue on appeal: whether the sentencing court
committed reversible constitutional error under Blakely v. Washington, 124 S. Ct.
2531 (2004). Johnson argues that the sentencing judge impermissibly added two
levels to his base offense level for possession of a dangerous weapon pursuant to
U.S.S.G. § 2D1.1(b)(1) based on a judicial finding of fact that the firearm -- whose
possession Johnson admitted -- was connected to the drug offense. At sentencing,
Johnson objected to the firearm enhancement based on his contention that the
weapon was unconnected to the drugs; but Johnson raised no constitutional
challenge to the enhancement at sentencing.1 Because this Blakely -- now Booker
v. United States, 125 S. Ct. 738 (2005) -- issue is raised for the first time on appeal,
we review for plain error. See Booker, 124 S. Ct. at 769, United States v.
Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005), cert. denied, 2005 WL 483174
(U.S. June 20, 2005).
1
Johnson pleaded guilty to one count of a five count indictment pursuant to a written plea
agreement that contained a sentence appeal waiver. Because the government failed to raise the
appeal waiver as a bar to Johnson’s sentence enhancement challenge, we will not address the
applicability of the appeal waiver. See United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000)
(“Parties must submit all issues on appeal in their initial briefs.”).
2
On plain error review, a defendant must show “error” that is “plain” and that
“affect[s] substantial rights”. United States v. Olano, 113 S. Ct. 1770, 1776
(1993). It is only after these conditions have been satisfied that an appellate court
has discretion to notice a forfeited error. An appellate court may remedy error that
is plain and affects substantial rights only if “the error ‘seriously affects[s] the
fairness, integrity, or public reputation of judicial proceedings.’” Johnson v.
United States, 177 S. Ct. 1544, 1549 (1997), quoting Olano, 113 S. Ct. at 1776.
Section 2D1.1(b)(1) imposes a two level increase in the base offense level
of offenses involving drugs if a dangerous weapon is possessed. Under the
commentary, the enhancement “should be applied if the weapon was present,
unless it is clearly improbable that the weapon was connected with the offense.”
U.S.S.G. 2D1.1, comment. n.3. Johnson admitted at sentencing that the loaded
gun found in a closet in the room used as a methamphetamine lab was his gun;
Johnson argued that the firearm was unconnected to the drugs. The district court
stated that Johnson failed to show that it was clearly improbable that the firearm
was connected to the drug offense. Instead, the district court stated that it could
not “imagine all the coincidents [sic] and circumstances” that would have to apply
to show the “gun just happened to be in a room where a meth lab was located.”
3
In Rodriguez, we recognized that an enhancement imposed under a
mandatory guidelines system based on facts found by the judge that went beyond
those admitted by the defendant or found by the jury constituted Booker error.
Rodriguez, 398 F.3d at 1298-99. And, because of Booker, we concluded that such
error is now plain. To the extent that Johnson challenges judicial fact finding2 that
went beyond his admissions, the first two requirements for plain error relief would
be satisfied.3
Johnson fails, however, to satisfy the third requirement: that the error
“affected substantial rights.” As we explained in Rodriguez, the Booker error is
not the use of extra-verdict enhancements; it is “the use of extra-verdict
enhancements to reach a guidelines result that is binding on the sentencing judge.”
Id. at 1301. To show the prejudice required for plain error relief, a claimant must
show a “reasonable probability of a different result if the guidelines had been
applied in an advisory instead of binding fashion.” Id.
2
Johnson challenges only the district court’s conclusion that the firearm was connected to the drug
offense. While we will accept that this determination is a factual finding that can constitute Booker
error, arguably at issue only is the application of the guidelines to the admitted fact of possession.
3
In United States v. Shelton, 400 F.3d 1325, 1331 (11th Cir. 2005), it was also concluded that
“Booker error exists when the district court misapplies the Guidelines by considering them as
binding as opposed to advisory.” And such statutory Booker error exists “even in the absence of a
Sixth Amendment enhancement violation.” Id. at 1330-31.
4
Johnson has not met his burden of showing that a Booker error in his case
affected the outcome of his sentencing. See id. at 1301, 1306. Johnson proffers
nothing to show that a reasonable probability exists that the sentencing judge
would have imposed a more lenient sentence had the guidelines been applied in an
advisory and non-binding fashion. See id. at 1301.
AFFIRMED.
5