United States v. Gregory Johnson ( 2015 )

Case: 14-60798 Document: 00513161071 Page: 1 Date Filed: 08/19/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 19, 2015
No. 14-60798
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
GREGORY JOHNSON, Also Known as Big Greg,
Defendant–Appellant.
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:14-CR-16-1
Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *
Gregory Johnson appeals the sentence imposed on his conviction of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-60798
aiding and abetting the distribution of cocaine base (crack cocaine) in violation
of 18 U.S.C. § 2 and 21 U.S.C. § 841(a)(1) (Count Four) and distributing crack
cocaine in violation of § 841(a)(1) (Count Five). Johnson contends that the
district court erred in assessing one criminal history point for his October 4,
2001, sentence because the three-day suspended sentence was imposed more
than ten years before his commencement of the earliest offense of conviction
on January 17, 2012.
Under the plain language of the commentary to U.S. Sentencing Guide-
lines § 4A1.2, the district court correctly considered Johnson’s relevant conduct
in determining when the offenses of conviction commenced for purposes of
§ 4A1.2(e)(2). See § 4A1.2, comment. (n.8). Aside from conclusionally asserting
that he was not charged with a conspiracy and that the conduct alleged in
Count One was not related to the conduct alleged in Count Four, Johnson does
not dispute that the controlled purchase on September 28, 2011, was part of
the same course of conduct or common scheme or plan as the controlled pur-
chases on January 17, 2012, and March 28, 2012. He has therefore abandoned
any challenge to the relevant-conduct determination by failing to brief it ade-
quately. See United States v. Cothran, 302 F.3d 279, 286 n.7 (5th Cir. 2002);
Beasley v. McCotter, 798 F.2d 116, 118 (5th Cir. 1986). Because Johnson’s
relevant conduct commenced on September 28, 2011, and his October 4, 2001
sentence was imposed within ten years of that date, the three-day suspended
sentence was properly assessed one criminal history point. See § 4A1.2(e)(2).
Johnson claims that the district court erred in assessing one criminal
history point for his March 3, 2005, sentence because the conviction was
obtained in violation of his Sixth Amendment right to counsel. He asserts that
his sworn testimony at sentencing was sufficient to satisfy his burden of prov-
ing that he was neither represented by nor offered an attorney in relation to
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No. 14-60798
that conviction.
State law allocates the burden of proof in a collateral attack on an
uncounseled conviction. United States v. Rubio, 629 F.3d 490, 493 (5th Cir.
2010). The allegedly uncounseled conviction occurred in Mississippi, where
“[t]he burden of proof is on the petitioner to show by a preponderance of the
evidence that he is entitled to [postconviction] relief.” Roach v. State,
116 So. 3d 126, 131 (Miss. 2013) (internal quotation marks and citations omit-
ted); see MISS. CODE ANN. § 99-39-23(7). Therefore, Johnson has the burden of
proving that he was not represented by counsel and that he did not compe-
tently and intelligently waive the right to counsel. See Rubio, 629 F.3d at 493(applying Texas law).
The presentence report (“PSR”) assessed one criminal history point for
the sixty-day suspended sentence imposed in Clarksdale Municipal Court on
March 3, 2005, on Johnson’s conviction of assault by threat. The Addendum
to the PSR explained that although the Clarksdale Municipal Court was
unable to provide specific information about Johnson’s prior convictions, the
court advised that “it has been the court’s practice to make a public defender
available to defendants during all court proceedings.”
The PSR is considered reliable and may be considered as evidence in
making sentencing determinations. United States v. Vital, 68 F.3d 114, 120
(5th Cir. 1995). Johnson’s suggestion that the PSR was rendered unreliable
because the probation officer initially identified the wrong court is insufficient
to rebut the presumption of reliability. See United States v. Washington, 480
F.3d 309, 320 (5th Cir. 2007). Further, the Clarksdale Municipal Court’s
statement is consistent with Mississippi law, which provides for the appoint-
ment of counsel for any indigent person charged with a felony, a misdemeanor
punishable by confinement for ninety days or more, or the commission of an
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act of delinquency. See MISS. CODE ANN. § 99-15-15; see also MISS. CONST. art.
III, § 26 (“In all criminal prosecutions the accused shall have a right to be heard
by himself or counsel, or both.”); Cannaday v. State, 455 So. 2d 713, 722 (Miss.
1984). The offense of simple assault is punishable “by imprisonment in the
county jail for not more than six (6) months.” MISS. CODE ANN. § 97-3-7(1)(a).
Mississippi law also affords a presumption of regularity to misdemeanor
convictions used to enhance sentences. Sheffield v. City of Pass Christian, 556
So. 2d 1052, 1053–54 (Miss. 1990). Although Johnson testified that he was
neither represented by nor offered an attorney during his October 4, 2001, and
March 3, 2005, convictions, his subsequent testimony on this issue was equiv-
ocal. Moreover, “[w]hen, as in this case, the federal constitutional right to
counsel was firmly established in the state, a defendant must do more than
merely say he was not offered counsel to satisfy his burden.” Rubio, 629 F.3d
at 494. Therefore, the district court did not err in concluding that Johnson
failed to satisfy the burden of proof necessary to establish that the March 3,
2005, conviction was obtained in violation of the Sixth Amendment. See id.The judgment is AFFIRMED. The government’s unopposed motion to
supplement the record on appeal is GRANTED.
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