United States v. Johnson ( 2023 )

Case: 22-30119 Document: 00516668554 Page: 1 Date Filed: 03/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 7, 2023
No. 22-30119 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Delewis Johnson, IV; Roy Lee Jones, Jr.,
Defendants—Appellants.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:20-CR-156-1
Before Jones, Dennis, and Willett, Circuit Judges.
Per Curiam:*
Delewis Johnson and Roy Lee Jones were convicted of conspiracy to
possess with intent to distribute 50 grams or more of methamphetamine or
500 grams or more of a mixture and substance containing a detectable
amount of methamphetamine. See 21 U.S.C. §§ 846, 841. Johnson was also
convicted of distributing methamphetamine. See 21 U.S.C. § 841. Both
*
Pursuant to 5th Circuit Rule 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should not be published and is not precedent except under the limited circumstances set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 Circuit Rule 47.5.4.
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No. 22-30119
challenge the sufficiency of the evidence for their convictions on appeal.
Jones also challenges two sentencing enhancements applied by the district
court. We AFFIRM.
Appellate courts affirm on the sufficiency of the evidence if, “after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 2789 (1979).
Both defendants challenge their convictions because, they say, the
evidence did not demonstrate they trafficked methamphetamine as opposed
to some other controlled substance. Yet even if that were indisputably true,
it would require resentencing rather than acquittal. The relevant statute
prohibits trafficking in any “controlled substance.” 21 U.S.C. § 841(a)(1).
The specific kind of controlled substance is “not a formal element of the
conspiracy offense.” See United States v. Daniels, 723 F.3d 562, 573 (5th Cir.
2013). Therefore, the defendants cannot challenge their convictions on these
grounds, but merely their sentences. Id.Moreover, there is ample evidence that both defendants trafficked in
methamphetamine. First, take Jones. Two street-level distributors testified
that “Dee” (Johnson’s alias) supplied Jones with methamphetamine, who in
turn supplied those lower on the totem pole. See United States v. Perry,
35 F.4th 293, 317 (5th Cir. 2022) (“This Court has long held that a defendant
may be convicted on the uncorroborated testimony of a coconspirator who
has accepted a plea bargain, so long as the coconspirator’s testimony is not
incredible.”) (citations and internal quotation marks omitted). On an
intercepted call, Jones told a coconspirator named Harris that Jones had
“two” for him. In the following days, Harris let two other coconspirators
know that Harris now had “meth” or “CDs” (slang the group used for
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methamphetamine). On another call, Jones discussed paying “Dee” for
“zips”—a term that a coconspirator testified referred to methamphetamine.
Jones makes essentially two arguments as to why this evidence is
insufficient; both fail. First, he contends that the testimony from his
coconspirators is incredible because, according to a government expert,
conspirators at Jones’s level in the distribution chain do not interact with
street-level distributors. Second, he avers that his intercepted statements
were vague and could have referred to marijuana rather than
methamphetamine. But neither argument demonstrates that no rational trier
of fact could have found Jones guilty. At this stage, the “evidence need not
exclude every reasonable hypothesis of innocence or be wholly inconsistent
with every conclusion except that of guilt, and this court will accept all
credibility choices that tend to support the verdict.” United States v.
Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). The jury could have rationally
concluded that the expert’s testimony was inapplicable to Jones’s situation
and rejected alternative interpretations of his ambiguous statements.
The evidence against Johnson is also sufficient. His counsel conceded
that Johnson was involved in the marijuana trade with Jones and went by the
name “Dee.” Multiple members of the conspiracy had heard that Jones got
his methamphetamine from “Dee.” Jones acknowledged that his supply
came from “Dee” on an intercepted call. On another call, Johnson offered
to sell “broccoli” (which the prosecution interpreted as a reference to
marijuana) or “the other one” to a police informant. When the informant
ordered “the other one,” Johnson sent a shipment to a third party’s address.
That shipment was stolen before the police could confiscate it, but shortly
thereafter a person associated with the address was arrested with
methamphetamine in his possession. The informant then placed a second
order for “another one” with Johnson. Soon after, the informant received
tracking information for the package, which was intercepted and found to
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contain a pound of methamphetamine. Like Jones, Johnson attempts to
characterize the evidence as only supporting marijuana trafficking. He also
denies that he sent the tracking number for the second package. But, at best,
his counter-interpretation of the evidence merely establishes that a
“reasonable hypothesis of innocence” is possible—not that the jury was
irrational for rejecting that hypothesis. Stevenson, 126 F.3d at 664.
Consequently, both of Johnson’s convictions survive his sufficiency of the
evidence challenge.
Likewise, Jones’s challenges to his sentencing enhancements fail.
The first enhancement was for acting as a manager or supervisor of a drug
conspiracy under U.S.S.G. § 3B1.1(b). The second was imposed because his
offense involved between 10,000 and 30,000 KG of Converted Drug Weight
under U.S.S.G. § 2D1.1. Both enhancements rest on factual findings that are
reviewed for clear error. United States v. Warren, 986 F.3d 557, 567 (5th Cir.
2021) (manager/supervisor enhancement); United States v. Betancourt,
422 F.3d 240, 246 (5th Cir. 2005) (drug quantity). Therefore, the court
should affirm if the decision below “is plausible in light of the whole record.”
United States v. Blanco, 27 F.4th 375, 382 (5th Cir. 2022).
Given Jones’s role in the distribution chain, the district court did not
clearly err by applying the manager/supervisor enhancement. As mentioned
above, the prosecution introduced evidence that Jones supplied the street-
level distributors with methamphetamine that he obtained from Johnson.
This position in the distribution chain gave him control over the other
conspirators’ access to the drug. At minimum, then, he “exercised
management responsibility over the property, assets, or activities” of the
enterprise. U.S.S.G. § 3B1.1 n. 2.
Finally, the district court did not clearly err by applying the drug
quantity enhancement. Jones makes several arguments to contend that his
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Converted Drug Weight includes drugs he never supplied. Some of his
arguments fail for the same reasons that his sufficiency of the evidence
argument fails. But more fundamentally, these arguments misconstrue the
legal standard. Jones is responsible for the quantity of drugs that he “knew
or should have known or foreseen was involved” in the conspiracy, not just
the drugs he personally trafficked. United States v. Puma, 937 F.2d 151, 160
(5th Cir. 1991); see also United States v. Pofahl, 990 F.2d 1456, 1484 (5th Cir.
1993) (“involvement in a conspiracy is presumed to continue and will not be
terminated until the co-conspirator acts affirmatively to defeat or disavow the
purpose of the conspiracy”) (internal quotation marks omitted). Even if he
did not personally supply all of the drugs at issue, he offers no argument as to
why he could not have known that the conspiracy would encompass the
quantities at issue. Ergo, his challenge to this enhancement cannot succeed.
AFFIRMED.
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