United States v. Johnson , 196 F. App'x 211 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4728
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ROZELL ALONZA JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. W. Craig Broadwater,
District Judge. (CR-04-40)
Submitted: June 9, 2006 Decided: August 30, 2006
Before NIEMEYER and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
L. Richard Walker, Assistant Federal Public Defender, Wheeling,
West Virginia, for Appellant. Thomas E. Johnston, United States
Attorney, Thomas O. Mucklow, Assistant United States Attorney,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Rozell Alonza Johnson appeals the 292-month sentence
imposed by the district court after Johnson pled guilty to
conspiracy to possess with intent to distribute and to distribute
fifty grams or more of crack cocaine, in violation of 21 U.S.C.
§ 846 (2000); possession with intent to distribute 108 grams of
crack, in violation of 21 U.S.C. § 841(a)(1) (2000), and 18 U.S.C.
§ 2 (2000); and possession with intent to distribute 129 grams of
cocaine, in violation of § 841(a)(1) and § 2. On appeal, Johnson
asserts that the district court erred by applying a two-level
upward adjustment under U.S. Sentencing Guidelines Manual § 3C1.2
(2004), for reckless endangerment during flight, and that the court
erred by refusing to award a downward adjustment under USSG § 3E1.1
for acceptance of responsibility. We affirm.
In a post-Booker* sentencing like Johnson’s, a district
court must calculate the applicable guideline range after making
the appropriate findings of fact, consider the range in conjunction
with other relevant factors under the guidelines and 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2006), and impose a sentence. United
States v. Moreland, 437 F.3d 424, 432 (4th Cir.) (citing United
States v. Hughes, 401 F.3d 540, 546 (4th Cir. 2005)), cert. denied,
126 S. Ct. 2054 (2006). The sentence must be “within the
statutorily prescribed range and . . . reasonable.” Hughes, 401
*
United States v. Booker, 543 U.S. 220 (2005).
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F.3d at 546-47 (citations omitted). In reviewing the calculation
of the advisory sentencing guideline range, this court “review[s]
the district court’s legal conclusions de novo and its factual
findings for clear error.” United States v. Hampton, 441 F.3d 284,
287 (4th Cir. 2006).
Johnson asserts on appeal that the district court erred
in failing to apply a two-level downward adjustment for acceptance
of responsibility. We review a district court’s decision to grant
or deny an adjustment for acceptance of responsibility for clear
error. United States v. May, 359 F.3d 683, 688 (4th Cir. 2004)
(citing United States v. Ruhe, 191 F.3d 376, 388 (4th Cir. 1999)).
Our review of the record convinces us that the district court did
not clearly err in refusing to apply an acceptance of
responsibility downward adjustment.
Johnson also challenges the district court’s application
of the upward adjustment for reckless endangerment during flight.
He contends that his flight from police was not reckless because he
was merely a passenger in the car that hit an officer’s unmarked
vehicle and there was no evidence that he knew his co-defendant
would hit the officer’s car. Because Johnson challenges the
application of the reckless endangerment adjustment to the
undisputed facts of his case, our review is de novo. See Hampton,
441 F.3d at 287; United States v. Butner, 277 F.3d 481, 487-88 (4th
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Cir. 2002) (reviewing de novo legal ruling based upon undisputed
facts).
An adjustment under § 3C1.2 is warranted “[i]f the
defendant recklessly created a substantial risk of death or serious
bodily injury to another person in the course of fleeing from a law
enforcement officer. . . .” USSG § 3C1.2. In making this
determination, the normal scope of relevant conduct described in
USSG § 1B1.3 is narrowed by USSG § 3C1.2 cmt. n.5. A defendant “is
accountable only for his own conduct and for conduct that he aided
or abetted, counseled, commanded, induced, procured, or willfully
caused.” USSG § 3C1.2 cmt. n.5. Because Application Note 5 to
§ 3C1.2 “limits the defendant’s responsibility for the actions of
another,” this court has held that “some form of direct or active
participation” on the part of the defendant is necessary for
§ 3C1.2 to apply when the reckless flight is the result of another
person’s action. United States v. Chong, 285 F.3d 343, 346 (4th
Cir. 2002) (internal quotation marks and citation omitted).
Assuming, without deciding, that the district court may
have erred in applying the two-level upward adjustment under USSG
§ 3C1.2, we find that any error is harmless. Without the § 3C1.2
adjustment, Johnson’s total offense level would have been
thirty-six. With a criminal history category of III, the
applicable advisory guideline range would have been 235 to 293
months of imprisonment. Johnson’s 292-month sentence falls within
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that range. See United States v. Mashek, 406 F.3d 1012, 1017 (8th
Cir. 2005) (“[T]here may be situations where an error in
calculating the appropriate guidelines range is harmless and,
therefore, does not require immediate remand[,] [such as] where the
resulting sentence lies in the overlap between the correct and
incorrect guidelines ranges.”) (citations omitted).
Accordingly, we affirm Johnson’s sentence. We deny the
motion to relieve counsel and 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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