United States v. Johnson , 54 F. App'x 134 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4113
GREGORY C. JOHNSON, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
W. Earl Britt, Senior District Judge.
(CR-01-56)
Submitted: November 27, 2002
Decided: December 23, 2002
Before LUTTIG and KING, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed and remanded by unpublished per curiam opinion.
COUNSEL
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. Anne Margaret Hayes, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Gregory C. Johnson, Jr., pled guilty pursuant to a written plea
agreement to assault with a dangerous weapon, 18 U.S.C. § 113(a)(3)
(2000), and possession of marijuana, 21 U.S.C. § 844 (2000), and was
sentenced to a total term of 108 months imprisonment. Johnson’s
attorney has filed a brief pursuant to Anders v. California, 386 U.S.
738 (1967), addressing whether the district court erred in denying
Johnson a reduction in his sentence for acceptance of responsibility,
U.S. Sentencing Guidelines Manual, § 3E1.1(a) (2000), but stating
that, in his view, there are no meritorious issues for appeal. Johnson
has also filed a supplemental pro se brief raising two additional
issues. For the reasons that follow, we affirm Johnson’s sentence.
On November 25, 2000, Johnson accompanied his girlfriend, Sarita
Dudley-Nixon, to the Camp Lejeune military base to retrieve Dudley-
Nixon’s son from her estranged husband, Vincent Nixon, after a
weekend visitation. When they were unable to find either the child or
Nixon, Johnson and Dudley-Nixon left the base but returned later that
day and found Nixon at home. Johnson and Dudley-Nixon entered the
home using Dudley-Nixon’s key; they found Nixon and the child
sleeping in a bedroom. Johnson then picked up a baseball bat, that he
had brought with him, and began beating Nixon on the head, causing
severe and permanent injuries. Johnson and Dudley-Nixon were later
arrested by the military police. Johnson was found to have 1.63 grams
of marijuana on his person.
During the course of the investigation, Dudley-Nixon told one of
the investigating agents that she had received threatening phone calls
from Johnson regarding her intention to testify against him. Dudley-
Nixon later recanted the statements, claiming she could not remember
Johnson ever making any such threats. The district court discredited
Dudley-Nixon’s later statements and found that Johnson had
UNITED STATES v. JOHNSON 3
obstructed justice by threatening Dudley-Nixon, thereby increasing
his offense level by two levels. USSG § 3C1.1.
Based on a total offense level of 27 and a criminal history category
of III, Johnson’s sentencing range was 87 to 108 months imprison-
ment. The district court sentenced him to 108 months. Johnson noted
a timely appeal.
Johnson first challenges the district court’s refusal to grant him an
adjustment for acceptance of responsibility. We review the district
court’s decision for clear error. United States v. Pauley, 289 F.3d 254,
261 (4th Cir. 2002). Johnson argues that, because he admitted his
guilt and apologized for his conduct, the district court clearly erred in
denying the reduction. The district court, after hearing testimony from
Johnson, adopted the presentence report’s conclusion that Johnson’s
acceptance of responsibility was disingenuous and that he had
attempted to rationalize his conduct by placing part of the blame on
Dudley-Nixon. Johnson cannot show that these findings are clearly
erroneous. Moreover, Johnson received an adjustment for obstruction
of justice; in all but extraordinary cases, a defendant who receives
such an adjustment under USSG § 3C1.1 is ineligible for a reduction
for acceptance of responsibility. See USSG § 3C1.1, comment. (n.4).
Johnson has filed a supplemental pro se brief challenging the two-
level enhancement he received for obstruction of justice and the dis-
trict court’s calculation of his criminal history points. Under USSG
§ 3C1.1, "[i]f the defendant willfully obstructed or impeded, or
attempted to obstruct or impede, the administration of justice during
the investigation, prosecution, or sentencing of the instant offense,
increase the offense level by 2 levels." The commentary to the guide-
line notes that "one type of conduct to which the enhancement applies
is threatening, intimidating, or otherwise unlawfully influencing a co-
defendant, witness, or juror, directly or indirectly, or attempting to do
so." USSG § 3C1.1, comment. (n. 3(a)). One of the investigators
assigned to the case stated that, during an interview with Dudley-
Nixon in April 2001, she told him that Johnson had threatened her
regarding her upcoming testimony in his trial. Although Dudley-
Nixon denied making those statements to the investigating agent, the
district court specifically discredited her later testimony. On these
4 UNITED STATES v. JOHNSON
facts, we find that the district court did not clearly err in enhancing
Johnson’s sentence for obstruction of justice.
Finally, Johnson claims that the district court erred in calculating
his criminal history points by counting two prior convictions as sepa-
rate convictions when they were related cases that were consolidated
for sentencing. The presentence report assigned two criminal history
points for a conviction for "Terroristic Threats" on April 10, 1998,
and one point for an assault conviction, also on April 10, 1998. The
charges arose from two separate incidents on the same date. However,
because Johnson committed the second offense after he was arrested
for the assault charge, the two convictions were properly counted sep-
arately in computing Johnson’s criminal history score. USSG
§ 4A1.2, comment. (n.3).
In accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. Although
we affirm Johnson’s sentence, we remand to the district court for cor-
rection of a clerical mistake in the judgment and commitment order
which refers to the offense of conviction as conspiracy to commit
aggravated assault. See Fed. R. Crim. P. 36. We therefore affirm
Johnson’s sentence. This court requires that counsel inform his client,
in writing, of his right to petition the Supreme Court of the United
States for further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move in this court for leave to withdraw from represen-
tation. Counsel’s motion must state that a copy thereof was served on
the client.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED AND REMANDED