United States v. Johnson ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2008
No. 08-50273
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
CHARLES EDWARD JOHNSON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-97-ALL
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Charles Edward Johnson was convicted following a jury trial for
possession with intent to distribute at least five grams of crack cocaine within
1000 feet of a public elementary school and was sentenced to a 365-month term
of imprisonment. Johnson has appealed his sentence, contending that the
district court clearly erred in calculating the drug quantity applicable for
sentencing and in imposing a two-level enhancement for an aggravating role in
the offense pursuant to U.S.S.G. § 3B1.1(c).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-50273
The appellant argues that the district court “double counted” in calculating
the drug quantity for sentencing purposes and that the court should not have
used the presentence report’s estimated weight of .2 grams per rock of crack
cocaine. The district court may adopt the factual findings in the presentence
report if those findings bear sufficient indicia of reliability to support their
probable accuracy. United States v. Valdez, 453 F.3d 252, 262 (5th Cir. 2006).
It may extrapolate the drug quantity attributable to the defendant from relevant
and sufficiently reliable evidence. Id. at 267. Johnson presented no evidence
rebutting the probation officer’s findings. See United States v. Alford, 142 F.3d
825, 832 (5th Cir. 1998). The district court’s drug-quantity finding was not
clearly erroneous because it is plausible in light of the record as a whole. See
United States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
In challenging the imposition of the two-level enhancement under
§ 3B1.1(c) for an aggravating role, Johnson argues that the evidence reflects that
he was a mere supplier of drugs and that the evidence does not suggest that he
supervised, managed, or organized the sale of drugs. A defendant qualifies for
an adjustment under § 3B1.1(c) if he was the “organizer, leader, manager, or
supervisor of at least one other participant.” United States v. Lewis, 476 F.3d
369, 390 (5th Cir. 2007); see § 3B1.1, comment. (n.2). This court reviews the
district court’s factual finding that the defendant was an organizer, leader,
manager, or supervisor under § 3B1.1(c) for clear error. United States v.
Gonzales, 436 F.3d 560, 584 (5th Cir. 2006).
The record reflects that Arthur Jones sold crack cocaine for Johnson,
Johnson provided the location for the drug sales, and Johnson received all of the
proceeds from Jones’s drug sales. The district court’s finding that Johnson
occupied an aggravating role is plausible in light of the record as a whole and is
not clearly erroneous. See United States v. Parker, 133 F.3d 322, 330 (5th Cir.
1998).
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No. 08-50273
Johnson has not shown that the district court abused its discretion in
imposing the sentence. See Gall v. United States, 128 S. Ct. 586, 596-97 (2007).
The judgment is AFFIRMED.
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