United States v. Johnson ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60364
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE JORDAN JOHNSON, also known as Byrd,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Mississippi
(3:96-CR-1-S)
April 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Andre Jordan Johnson was convicted of conspiracy to possess
and aiding and abetting possession with intent to distribute more
than 200 pounds of marijuana.1 Johnson raises several challenges
to his sentence. We affirm.
*
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this opinion should not be published and is not precedent except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.
1
See 21 U.S.C. §§ 841, 846.
I
Johnson asserts that the district court erred in applying the
career-offender enhancement under U.S.S.G. § 4B1.1. This
enhancement requires two prior convictions for “controlled
substance offenses.” Johnson argues that neither of the prior
offenses forming the basis for this enhancement supports its
imposition. Since Johnson did not object to the enhancement at
sentencing, we review for plain error.2
A
First, Johnson argues that his 1992 Tennessee conviction for
solicitation to commit a sale of cocaine is not a controlled
substance offense within the meaning of § 4B1.2 of the Sentencing
Guidelines, which defines “controlled substance offense.” He cites
the Sixth Circuit case United States v. Dolt,3 which held that the
Florida solicitation statute was not a controlled substance
offense. The court in Dolt distinguished solicitation from
attempt, conspiracy, and aiding and abetting, which § 4B1.2
explicitly includes within the scope of controlled substance
offenses.4 This circuit, however, has not ruled on the issue
2
See Fed. R. Crim. P. 52(b). Even purely legal rulings by
the district court, if not objected to, are reviewed for plain
error. See United States v. Calverley, 37 F.3d 160, 162-63 (5th
Cir. 1994) (en banc).
3
27 F.3d 235 (6th Cir. 1994).
4
Id. at 238-39; see also U.S.S.G. § 4B1.2 cmt.1 (2001).
2
presented in Dolt; whether solicitation can be a controlled
substance offense remains an open question.5 No other circuit
besides the Sixth has ruled on this precise question. Indeed, no
circuit has followed Dolt when addressing related questions;6 and
one has suggested that Dolt’s reasoning is flawed.7 The Sixth
Circuit itself has distinguished Dolt when holding that Tennessee’s
solicitation statute is a “crime of violence” within the meaning of
§ 4B1.2 when the defendant was convicted of soliciting armed
robbery.8
We are thus faced with a district court ruling on a question
of first impression in this circuit where there is no authority
from other circuits that would tend to compel, or even suggest, a
holding by this circuit.9 Under these circumstances, and assuming
5
Cf. United States v. Williams, 120 F.3d 575, 579 (5th Cir.
1997) (distinguishing Dolt). No court has ruled on whether the
Tennessee solicitation statute is a controlled substance offense.
6
See United States v. Shabazz, 233 F.3d 730, 733-34 (3d Cir.
2000); United States v. Williams, 176 F.3d 714, 717 n.4 (3d Cir.
1999); United States v. Williams, 120 F.3d 575, 579 (5th Cir.
1997); United States v. Cox, 74 F.3d 189, 190 (9th Cir. 1996).
7
See Cox, 74 F.3d at 190.
8
See United States v. Walker, 181 F.3d 774, 780-81 (6th Cir.
1999).
9
Compare this case to United States v. Leonard, 157 F.3d 343,
345-46 (5th Cir. 1998), where this court found plain error in a
district court’s error on a legal question of first impression when
the language of the sentencing guideline was clear and the other
circuits to address the issue had all reached the same conclusion.
3
without deciding that the district court erred, we cannot say that
any error was plain.
B
Second, Johnson argues that his January 19, 1996 federal
conviction for aiding and abetting possession of cocaine with
intent to distribute cannot be used to support the career-offender
enhancement. He argues that the Guidelines’ requirement of “two
prior felony convictions” requires that those two convictions
become final before the defendant commits the crime to which the
enhancement applies. Johnson argues that his 1996 conviction was
not final because he had not been sentenced in that case when he
committed the crime for which he was convicted in the instant
case.10 This argument has no merit. The Guidelines explicitly
state that “the defendant [must have] committed the instant offense
of conviction subsequent to sustaining at least two felony
convictions of . . . a controlled substance offense . . . . The
date that a defendant sustained a conviction shall be the date that
the guilt of the defendant has been established, whether by guilty
plea, trial, or plea of nolo contendere.”11 There is no requirement
that the defendant have been sentenced for his “two prior felony
convictions.” Johnson had pleaded guilty before he committed the
crimes in the instant case.
10
The government presented evidence at trial of Johnson’s
involvement in the alleged conspiracy starting April 22, 1996.
11
U.S.S.G. § 4B1.2(c).
4
II
Johnson contends that by failing to comply with the
requirements of 21 U.S.C. § 851, the district court could not
enhance Johnson’s sentence based on his prior convictions. The
government replies that the prior convictions were used only for
enhancements under the Sentencing Guidelines, not statutory
enhancements to the maximum sentence under 21 U.S.C. § 841.
Section 851 only applies to statutory enhancements.12 Thus,
compliance with section 851 was not required in this case.
III
Johnson argues that the district court erred in increasing his
offense level under the Guidelines for obstruction of justice and
as a leader or organizer of criminal activity.13 These enhancements
would have the effect of increasing Johnson’s offense level from 26
to 30. Although the presentence report did list both of these
enhancements as possible enhancements to Johnson’s sentence, it
noted that under the career-offender provision of the Sentencing
Guidelines,14 Johnson’s offense level is increased to 34, regardless
12
See United States v. Marshall, 910 F.2d 1241, 1245 (5th Cir.
1990).
13
Each of these factors justifies a two-level enhancement in
the offense level under the Sentencing Guidelines. See U.S.S.G. §§
3B1.1(c); 3C1.1.
14
U.S.S.G. § 4B1.1.
5
of the obstruction of justice or leader/organizer enhancements.15
The district court accepted the PSR’s recommendation to sentence
under the career-offender provision. Thus, the district court did
not consider the other enhancements, and any assertions of error
regarding those enhancements is irrelevant.
IV
Johnson argues that the PSR was inadequate to establish that
he was responsible for 542 pounds of marijuana. He did not object
to the quantity as found by the trial court. Thus, this court will
accept the facts in the PSR as “true and reliable” and ask only if
those facts are “legally [ ]adequate” to support the enhancement.16
Further, we review only for plain error.17 In this case, the PSR
stated that several shipments of marijuana were made in addition to
the intercepted shipment of 211 pounds. Johnson argues that the
court failed to make any finding of reasonable foreseeability for
the other shipments of drugs attributed to Johnson. But the PSR
states that Johnson, in addition to the crime of conviction, was
directly involved in at least one other shipment of marijuana. No
15
“If the offense level for a career criminal [dictated by
this section] is greater than the offense level otherwise
applicable, the offense level [under this section] shall apply.”
Id. Because the maximum sentence to which Johnson could have been
sentenced was greater than 25 years, section 4B1.1 required an
offense level of 34.
16
United States v. Martinez-Cortez, 988 F.2d 1408, 1415 (5th
Cir. 1993).
17
See id. at 1410-11.
6
foreseeability finding is necessary for amounts that Johnson was
personally involved in possessing. Even if Johnson was involved in
only one other shipment, and it was the smallest shipment alleged
in the PSR, 40 pounds, he was personally involved in the possession
of 251 pounds of marijuana.18 Assuming arguendo that the district
court erred in holding Johnson responsible for 542 pounds, we note
that the offense level for 542 or 251 pounds of marijuana is the
same.19 Thus, any error would be harmless.
V
Johnson finally invokes Apprendi v. New Jersey,20 arguing that
the use in sentencing of drug amounts not proven to the jury
violates the Constitution. Johnson concedes, however, that this
argument is foreclosed by Fifth Circuit precedent holding that the
constitutional rule announced in Apprendi “does not invalidate a
court’s factual finding for the purposes of determining the
applicable Sentencing Guidelines”21 as long as the court-imposed
18
Adding 40 pounds to the amount of the shipment he was
convicted of aiding and abetting, 211 pounds, yields 251 pounds.
19
Converting to the metric system, we find that 251 pounds is
approximately 114 kilograms; 542 pounds is approximately 246
kilograms. Possession with intent to distribute marijuana in any
amount between 100 and 400 kilograms is subject to an offense level
of 26. See U.S.S.G. § 2D1.1(c).
20
530 U.S. 466, 120 S. Ct. 1248 (2000).
21
United States v. Doggett, 230 F.3d 160, 166 (5th Cir. 2000).
7
sentence does not exceed the statutory maximum authorized by the
jury’s verdict.22 This contention therefore lacks merit.
VI
Johnson’s sentence is AFFIRMED.
22
Id. at 165.
8