United States v. Johnson , 37 F. App'x 599 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 00-4436
ANTONIO MAURICE JOHNSON, a/k/a
Rico,
Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of North Carolina, at Durham.
James A. Beaty, Jr., District Judge.
(CR-99-256)
Submitted: January 31, 2002
Decided: March 12, 2002
Before LUTTIG, MICHAEL, and GREGORY, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
COUNSEL
M. Gordon Widenhouse, Jr., RUDOLF, MAHER, WIDENHOUSE &
FIALKO, Chapel Hill, North Carolina, for Appellant. Walter C. Hol-
ton, Jr., United States Attorney, Steven H. Levin, Assistant United
States Attorney, Greensboro, 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Unpublished opinions are not binding precedent in this circuit.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:
Antonio Maurice Johnson pled guilty to conspiracy to distribute in
excess of five kilograms of cocaine in violation of 21 U.S.C.A.
§ 841(a), 841(b)(1)(A) (West 1999 & Supp. 2001), and was sentenced
to a term of 300 months imprisonment. Johnson appeals his convic-
tion and sentence under Apprendi v. New Jersey, 530 U.S. 466 (1998),
and also argues that he was incorrectly sentenced as a career offender.
U.S. Sentencing Guidelines Manual § 4B1.1 (2000). We affirm the
conviction and find that the sentence does not offend Apprendi. How-
ever, we grant Johnson’s motion to amend the record with respect to
the career offender sentence. We vacate the sentence, and remand for
further proceedings concerning the district court’s determination that
Johnson had the necessary predicate convictions to qualify as a career
offender.
Johnson first contends that the indictment was defective because it
did not allege either the specific quantity of cocaine for which he was
personally responsible or the specific enhanced penalty he faced.
Because Johnson did not challenge the sufficiency of the indictment
in the district court, his claim is reviewed for plain error. United
States v. Olano, 507 U.S. 725, 731-32 (1993) (appeals court will
notice unpreserved error if error in fact occurred, was plain, affected
substantial rights, and seriously affects the fairness, integrity, or pub-
lic reputation of judicial proceedings). This court has held that, under
Apprendi, drug quantity and type are elements of § 841. United States
v. Promise, 255 F.3d 150, 152 (4th Cir.) (en banc), petition for cert.
filed, Sept. 20, 2001 (No. 01-6398). Here, the indictment charged
Johnson with distributing a particular threshold quantity of cocaine,
five kilograms, which subjected him to an enhanced penalty of ten
years to life under 21 U.S.C.A. § 841(b)(1)(A). We find no error in
the form of the indictment or in Johnson’s conviction. See Promise,
255 F.3d at 160.
UNITED STATES v. JOHNSON 3
Johnson also asserts, in his reply brief, that his guilty plea was not
knowing and voluntary because he was not informed that the govern-
ment would have to prove the quantity of cocaine attributable to him
beyond a reasonable doubt. See United States v. Stewart, 256 F.3d
231, 252 (4th Cir.), cert. denied, 122 S. Ct. 633 (2001) (holding that,
if the evidence concerning drug quantity is uncontested and over-
whelming, the defendant’s substantial rights are not affected by the
failure to instruct the jury on that element of the offense); see also
United States v. Montgomery, 262 F.3d 233, 252 (4th Cir. 2001), cert.
denied, 122 S. Ct. 845 (2002). Assuming without deciding that the
district court’s failure to so inform Johnson was error, even plain
error, it did not affect his substantial rights because the evidence that
Johnson was guilty of an offense involving more than five kilograms
of cocaine was both overwhelming and uncontested.
Johnson also claims that, under Apprendi, the district court should
have determined the amount of cocaine attributable to him beyond a
reasonable doubt. This court has determined, however, that factual
determinations that increase the sentence under the guidelines do not
implicate Apprendi and may be made by the district court by a pre-
ponderance of the evidence. United States v. Kinter, 235 F.3d 192,
201 (4th Cir. 2000), cert. denied, 121 S. Ct. 1393 (2001).
Finally, Johnson argues that he should not have been sentenced as
a career offender because his 1997 North Carolina felony drug con-
viction was obtained in violation of his constitutional protection from
double jeopardy because he had already been assessed a North Caro-
lina drug tax for the drugs involved. We have held that the North Car-
olina drug tax, see N.C. Gen. Stat. §§ 105-113.105 to 105-113.113
(1999), constitutes a criminal penalty for purposes of the Double
Jeopardy Clause. Lynn v. West, 134 F.3d 582, 588-93 (4th Cir. 1998).
Johnson did not oppose the career offender designation on this ground
in the district court. The issue he raises here is thus reviewed for plain
error. Olano, 507 U.S. at 731-32.
In his initial brief and reply brief, Johnson argued that "the record
strongly suggests that" his 1997 conviction violated double jeopardy
because $1732 in cash was seized from him when he was arrested on
August 27, 1997, with thirty-five pounds of marijuana1 and it was
1
The presentence report states that the amount was 32 pounds of mari-
juana, but this appears to be a mistake because State Bureau of Investiga-
4 UNITED STATES v. JOHNSON
routine practice for North Carolina authorities to assess a drug tax on
drugs and money seized in such circumstances. Johnson subsequently
moved to amend the record and submitted documents disclosing that
he was assessed a controlled substance tax of $55,566 on September
2, 1997, and that the state applied the $1732 seized from him to pay-
ment of the tax. If the drug conviction occurred after that date, the
conviction violated double jeopardy under Lynn v. West and may pre-
clude use of the 1997 drug conviction as a predicate offense for the
career offender sentence.2
Because a factual question remains that should be considered first
by the district court, we affirm Johnson’s conviction but vacate the
sentence and remand for further proceedings. On remand, the district
court should consider the effect on the career offender designation of
the evidence that Johnson was assessed a drug tax soon after his 1997
arrest. 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 IN PART, VACATED IN PART, AND REMANDED
tion Report of Arrest and/or Seizure submitted with Johnson’s motion to
amend the record shows that 35 pounds of marijuana were seized with
the cash. See Attachment A to the motion.
2
It is not clear that Johnson may challenge the career offender sentence
enhancement under Lynn, which dealt with a statutory sentence enhance-
ment. Application Note 6 to USSG § 4A1.2 directs that sentences from
prior convictions should be counted unless they have been reversed,
vacated, or ruled constitutionally invalid in a prior proceeding. Johnson’s
1997 drug conviction has not been reversed, vacated, or ruled constitu-
tionally invalid. Application Note 6 further states that, "this guideline
and commentary do not confer upon the defendant any right to attack
collaterally a prior conviction or sentence beyond any such rights other-
wise recognized in law (e.g., 21 U.S.C. § 851 expressly provides that a
defendant may collaterally attack certain prior convictions)."