United States v. Jarvis Johnson , 463 F. App'x 198 ( 2012 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4785
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JARVIS J. JOHNSON, a/k/a Jarvis Jamaye Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. John Adrian Gibney, Jr.,
District Judge. (3:11-cr-00062-JAG-1)
Submitted: January 30, 2012 Decided: February 2, 2012
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael S. Nachmanoff, Federal Public Defender, Frances H.
Pratt, Carolyn V. Grady, Assistant Federal Public Defenders,
Richmond, Virginia, for Appellant. Neil H. MacBride, United
States Attorney, Stephen W. Miller, Assistant United States
Attorney, Richmond, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jarvis J. Johnson was charged, along with Robert
Turner, Jr., with possession of a Special Weapons 9mm rifle and
a Fabrinor .45 caliber firearm after having been convicted of a
felony, in violation of 18 U.S.C. § 922(g) (2006). He pled
guilty, without a plea agreement. In the stipulated statement
of facts presented at his Fed. R. Crim. P. 11 hearing, Johnson
agreed that:
1. On or about December 13, 2010 . . . [he], having
previously been convicted of a crime punishable by
imprisonment for a term exceeding one year, did
knowingly, intentionally and unlawfully possess
firearms and ammunition, to wit: a Special Weapons
rifle, Model SW760, 9mm caliber, serial number EO279;
a Fabrinor, Model Mini Max, .45 caliber pistol, serial
number 71-04-07807-00; and various rounds of
ammunition, in and affecting interstate and foreign
commerce, and did aid and abet ROBERT D. TURNER, JR.
therein, in violation of Title 18, United States Code,
Sections 922(g)(1) and 2.
…
5. Police interviewed JOHNSON and TURNER and JOHNSON
admitted to possessing the .45 caliber firearm.
Likewise, JOHNSON admitted that he purchased
additional ammunition and a laser sight for the
weapon. JOHNSON stated that he placed the .45 caliber
firearm under the glove compartment when police
stopped the vehicle.
When asked during the Rule 11 hearing whether “anything in these
facts that you think is wrong that should be added to or changed
or corrected or deleted,” Johnson replied, “No, ma’am.”
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In the presentence report (PSR), Johnson was assigned
a base offense level of 22 because “the firearm is a
semiautomatic firearm that is capable of accepting a large
capacity magazine.” See U.S. Sentencing Guidelines Manual
(USSG), § 2K2.1(a)(3)(A)(i) and (B) (2010). After a three-level
reduction for acceptance of responsibility, Johnson’s total
offense level was 19. With a criminal history category of VI,
the recommended advisory Guidelines range was 63-78 months
imprisonment. Johnson did not note any objections to the PSR or
at sentencing. Rather, at the sentencing hearing, his attorney
requested a below-Guidelines sentence, based on her belief that
the “guidelines are inflated by the assault rifle.” The
district court disagreed and, after discussing the factors
provided in 18 U.S.C. § 3553(a) (2006), imposed a sentence of 78
months. Johnson noted a timely appeal.
Johnson’s sole argument on appeal is that the
attribution of the assault rifle to him was plainly erroneous
because there is no factual support for it in the record.
Because he failed to raise the issue below, this claim is
subject to review for plain error. United States v. Hargrove,
625 F.3d 170, 184 (4th Cir. 2010), cert. denied, 132 S. Ct. 292(2011). To establish plain error, Johnson must demonstrate that
(1) there was error; (2) the error was plain; and (3) the error
affected his substantial rights. United States v. Olano, 507
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U.S. 725, 732 (1993). In the sentencing context, an error
affects substantial rights if the defendant can show that the
sentence imposed “was longer than that to which he would
otherwise be subject.” United States v. Washington, 404 F.3d
834, 849 (4th Cir. 2005). Even if Johnson makes this showing,
however, we will exercise our discretion to correct plain error
only if it “seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Lynn, 592
F.3d 572, 577 (4th Cir. 2010) (internal quotation marks
omitted). We find that the district court did not commit error—
plain or otherwise.
First, Johnson admitted to the statement of facts
which specifically attributed the assault rifle to him. These
statements, made under oath, are presumed to be true.
Blackledge v. Allison, 431 U.S. 63, 74 (1977). Moreover, his
failure to object to the PSR “has the same legal effect as an
admission to that fact.” United States v. Terry, 916 F.2d 157,
162 (4th Cir. 1990).
Second, there was sufficient evidence to support a
finding that Johnson possessed—either actually or
constructively—the assault rifle at issue. However, because the
issue was uncontested, the government did not present its
evidence. In the government’s sentencing memorandum, it noted
that, in addition to the information contained in the stipulated
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statement of facts, that “the defendants shared the weapons and
police observed Johnson holding the rifle as he entered the
vehicle.” We find that this evidence, had it been presented,
would have been sufficient to establish that Johnson possessed
the automatic weapon and, therefore, would have supported the
§ 2K2.1(a)(3)(A)(i) enhancement had Johnson contested the issue.
Accordingly, we affirm Johnson’s sentence. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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