United States v. Johnson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4709
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WALLACE LEE 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-04-8)
Submitted: June 7, 2006 Decided: September 11, 2006
Before NIEMEYER and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed in part and remanded for resentencing by unpublished per
curiam opinion.
Paul G. Taylor, Martinsburg, West Virginia, for Appellant. Thomas
E. Johnston, United States Attorney, Thomas O. Mucklow, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Wallace Lee Johnson pleaded guilty without a plea agreement to
three counts of distributing and possessing with the intent to
distribute at least 7.09 grams of cocaine base. Based on the
amount of cocaine base alleged in the indictment, Johnson faced a
maximum of 20 years’ imprisonment. See 21 U.S.C. § 841(b)(1)(C).
Following several hearings, the district court found that
Johnson’s relevant conduct for sentencing purposes included more
than 35 but less than 50 grams of cocaine base, which translated
into a base offense level of 30. The court granted Johnson a two-
point reduction for acceptance of responsibility. With a criminal
history Category V, the Sentencing Guidelines provided Johnson with
a range of 130-162 months’ imprisonment. The court found that a
sentence within that range would serve the purposes of sentencing
stated in 18 U.S.C. § 3553 and accordingly sentenced Johnson to 149
months’ imprisonment on each count, to run concurrently.
Johnson claims on appeal (1) that the district court clearly
erred in determining the drug quantity used to calculate his
Sentencing Guidelines range, because the testimony that the
district court relied on was not credible; (2) that because the
district court found relevant conduct to involve a drug quantity
beyond the 7.09 grams charged in the indictment, the relevant
conduct should have been found beyond a reasonable doubt, not by a
preponderance of the evidence; and (3) that having earlier found
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Johnson’s criminal history category to be a Category IV, the court
erred in applying a Category V. We address each claim in order.
We review a district court’s factual findings about relevant
conduct for clear error. United States v. Ebersole, 411 F.3d 517,
536 (4th Cir. 2005); United States v. Hughes, 396 F.3d 374, 382
(4th Cir. 2005). And findings based on the credibility of
witnesses are particularly entitled to great deference. United
States v. Hassanzadeh, 271 F.3d 574, 580 (4th Cir. 2001). Here,
the district court found drug quantity based on the testimony of
several witnesses. The court was well aware that credibility
issues existed with respect to some of the witnesses and took that
into account in calculating the drug quantity even though it also
heard testimony from law enforcement officers. Because of these
credibility problems, the court approached its factfinding
cautiously, rejecting the government’s claim that the relevant
conduct included between 1.3 and 8.7 kilograms. Based on our
review of the record, Johnson has not demonstrated that the
district court’s factual findings in these circumstances were
clearly erroneous.
Johnson also contends that the district court’s factual
findings should have been made on the beyond-a-reasonable-doubt
standard, not a preponderance standard, but he simply
misunderstands the post-Booker sentencing procedure. The district
court did not err in determining the relevant conduct by a
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preponderance of the evidence, and properly followed the sentencing
procedure described in United States v. Hughes, 401 F.3d 540 (4th
Cir. 2005), and later in United States v. Green, 436 F.3d 449 (4th
Cir. 2006).
Finally, Johnson claims that the district court erred in
applying a criminal history Category V, noting that the court had
found him to have a criminal history Category IV during an earlier
sentencing hearing. At its first sentencing hearing, which took
place on May 19, 2005, the district court noted correctly that
Johnson’s criminal history category was IV, not the Category V
stated in the presentence report, because two points proposed in
the presentence report for commission of the instant offense when
Johnson was on probation for an October 2001 offense was an error.
The instant offense was committed in July 2001 before Johnson was
placed on probation for the October 2001 offense. Therefore, with
the reduction of two points, Johnson’s criminal history category
was properly Category IV, not Category V.
Yet when the court later, after several further sentencing
hearings, completed its sentencing of Johnson, it applied Category
V, not Category IV, without explanation. Because the record does
not support a criminal history Category V, we vacate the sentence
and remand for resentencing.
AFFIRMED IN PART AND REMANDED
FOR RESENTENCING
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