United States v. Johnson ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
12-21-2007
USA v. Johnson
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4958
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4958
UNITED STATES OF AMERICA
v.
KERION JOHNSON,
a/k/a Black
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Crim. No. 06-00029)
Honorable James M. Munley, District Judge
Submitted under Third Circuit LAR 34.1(a)
December 14, 2007
BEFORE: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges
(Filed: December 21, 2007)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before the court on an appeal from a judgment of conviction
and sentence entered on November 30, 2006, following appellant Kerion Johnson’s plea
of guilty to a single count of a multi-count indictment pursuant to a plea agreement. The
appeal is limited to the sentence. A grand jury indicted Johnson for conspiracy to make
false statements to a federal firearms dealer in connection with the acquisition of firearms
in violation of 18 U.S.C. §§ 371 and 922(a)(6), conspiracy to distribute and possess with
intent to distribute in excess of five grams of cocaine base (“crack”) in violation of 21
U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), distribution of more than five grams of
cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1), and two counts of using a
communication facility to cause or facilitate a drug trafficking felony in violation of 21
U.S.C. § 843(b). Johnson pleaded guilty to conspiracy to distribute and possess with
intent to distribute in excess of five grams of cocaine base (“crack”) and the court
ultimately dismissed the indictment’s remaining counts.
The presentence report indicated that Johnson’s total offense level was 27 which,
with his criminal history category of IV, yielded a guidelines range of 100 to 125 months.
However, at the sentencing the court made an unchallenged determination that Johnson’s
total offense level was 25 which, with his criminal history category of IV, yielded a
guidelines range of 84 to 105 months. At the sentencing Johnson sought consideration by
reason of the so-called 100-to-1 sentencing discrepancy between crack and powder
cocaine. In fact, as the Supreme Court so recently has explained, the “100-to-1 ratio
yields sentences for crack offenses three to six times longer than those for powder
offenses involving equal amounts of drugs.” Kimbrough v. United States, No. 06-6330,
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2007 WL 4292040, at *6 (U.S. Dec. 10, 2007).
The District Court in sentencing took into account all of the factors set forth in 18
U.S.C. § 3553(a) and then pointed out the following:
Mr. Johnson is 32 years of age, and he was involved in the
distribution of quantities of crack cocaine in Monroe County. He has a
significant drug history and a criminal record. He has spent a considerable
amount of time in prison on previous drug convictions, only to engage in
this similar conduct, similar behavior.
For his 32 years, he sports two adjudications when he was a juvenile
and his number of convictions are rank – eight adult convictions.
In 2005, in this matter, the FBI and the state police investigated 12
purchases of firearms and drug trafficking in Monroe County. And from
2005, April, to October 13th, purchases of firearms were made on behalf of
Mr. Johnson from various firearm dealers in Northeastern Pennsylvania.
Guns were taken by Johnson to Trenton, sold to others in housing projects.
On those occasions, females received a quantity of crack cocaine from
Johnson in exchange for firearms.
The parties have stipulated that Johnson was involved in the
distribution and possession with intent to distribute between 5 and 35 grams
of cocaine base; and that he possessed firearms in connection with his
distribution activities.
And I’m in agreement with the government’s counsel; this
combination is deadly, you know, the guns and the crack cocaine, bad stuff,
you know.
And Mr. Johnson, I don’t have much more to say except that this is
really serious business, that combination.
Sentencing Hr’g Tr. 27-28, Nov. 20, 2006. The court then sentenced Johnson to a
custodial term of 102 months to be followed by a term of supervised release of five years.
Johnson appeals, raising the following point:
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The District Court Erred in Imposing Sentence Without Adequately
Articulating its Consideration of the Factors in Section 3553(a) of Title 18
of the United States Code, 18 U.S.C. § 3553(a), Particularly in Relation to
the Disparity under the Sentencing Guidelines Between the Powder and
Crack Forms of Cocaine.
Appellant’s br. at 10.
The District Court had jurisdiction under 18 U.S.C. § 3231 and we have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The parties agree that
inasmuch as Johnson did not make any objection to the adequacy of the District Court’s
articulation of the 18 U.S.C. § 3553(a) factors at the sentencing we review the sentence
on the basis of the exacting plain error standard. See United States v. Olano, 507 U.S.
725, 732-35, 113 S. Ct. 1770, 1776-78 (1993); United States v. Dragon, 471 F.3d 501, 505
(3d Cir. 2006). Of course, even though we are concerned here with a plain error
challenge, the underlying question on review is whether we can say that the District Court
abused its discretion in its sentencing determinations. See United States v. Lloyd, 469
F.3d 319, 321 (3d Cir. 2006). As the Supreme Court explained in Gall v. United States,
No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007), “[r]egardless of whether the
sentence imposed is inside or outside the Guidelines range, the appellate court must
review the sentence under an abuse-of discretion standard.”
We see no merit at all in this appeal. The District Court was well aware of the
challenges that have been raised to the distinction between the length of the sentences
statutorily authorized for crack and powder cocaine so that the same quantity of crack as
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compared to powder cocaine will yield a longer sentencing range. But the court,
understandably in view of the circumstances of this case, was not moved by reason of that
distinction to impose a shorter sentence than it did. Moreover, it imposed a sentence
within the advisory guidelines range though it undoubtedly knew that it could impose a
shorter sentence. Thus, consideration of the Supreme Court opinion in Kimbrough does
not require that we remand this case for resentencing. Though a sentence by reason of
being within the guidelines sentencing range is not immunized from challenge, still the
circumstance that a sentence is within the range is a positive factor for a court to take into
account in considering its reasonableness. See United States v. Cooper, 437 F.3d 324,
332 (3d Cir. 2006) (“A sentence that falls within the guidelines range is more likely to be
reasonable than one outside the guidelines range.”). Overall, it is clear that we would not
disturb the sentence here even on an ordinary abuse of discretion review and we certainly
will not do so on an enhanced plain error review.
The judgment of conviction and sentence entered November 30, 2006, will be
affirmed.
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