United States v. Andrew Johnson , 732 F.3d 577 ( 2013 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0290p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 12-2138
v.
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Defendant-Appellant. -
ANDREW MARCUS JOHNSON,
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Appeal from the United States District Court
for the Western District of Michigan at Marquette.
No. 2:11-cr-00024-1—R. Allan Edgar, District Judge.
Decided and Filed: October 7, 2013
Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.
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COUNSEL
ON BRIEF: Michael M. Brownlee, BROWNSTONE, P.A., Winter Park, Florida, for
Appellant. Maarten Vermaat, UNITED STATES ATTORNEY’S OFFICE, Marquette,
Michigan, for Appellee.
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OPINION
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RALPH B. GUY, JR., Circuit Judge. Defendant Andrew Johnson pleaded guilty
to one count of conspiracy to distribute and to possess with intent to distribute 280 grams
or more of cocaine base. See 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(iii).
Appealing his sentence, Johnson attacks the district court’s determination that his
relevant conduct involved the distribution of nearly 4.5 kilograms of cocaine base as
both clearly erroneous and a violation of his Sixth Amendment rights. For the reasons
that follow, we affirm.
1
No. 12-2138 United States v. Johnson Page 2
I.
Johnson’s Rule 11 Plea Agreement provided that, with the dismissal of two
substantive distribution counts and other state weapons charges, Johnson would plead
guilty to having conspired with others—including seven named cooperating
coconspirators—to distribute and possess with intent to distribute at least 280 grams of
cocaine base in Marquette County, Michigan, beginning in 2007 and continuing through
July 2010. Johnson acknowledged that pleading guilty to this 280-gram quantity would
trigger a mandatory minimum 10-year sentence and a maximum sentence of life
imprisonment. There was no stipulation regarding drug quantities greater than 280
grams, although it was understood that Johnson could contest the drug quantity being
attributed to him for purposes of sentencing without jeopardizing his ability to receive
an acceptance-of-responsibility adjustment.
The presentence report detailed Johnson’s involvement in the conspiracy,
including his participation both in bringing cocaine base from Chicago to Marquette and
in selling it to coconspirators and confidential informants. In fact, the two dismissed
counts of distribution were based on Johnson’s indirect involvement in two controlled
buys of crack cocaine made through coconspirator Robert Petrocik. Proffers from
Petrocik and several other cooperating coconspirators implicated Johnson directly and
indirectly in the distribution of cocaine base in Marquette. The most significant proffer
for purposes of this appeal, however, was made by coconspirator Ashley Rose Walker
detailing how she and Johnson moved cocaine base from Chicago to Marquette three to
four times per month from October 2008 through July 2010.
The presentence report prepared for Johnson sought to avoid possible double
counting with respect to drug quantity by including only those quantities of cocaine base
attributed to Johnson directly by coconspirators Crystal Abbott (70 grams), Petrocik
(140 grams), and Walker (4,368 grams). Together, these amounts easily exceeded the
2.8 kilograms (roughly 100 ounces) of cocaine base necessary to trigger a base offense
level of 36. See United States Sentencing Guidelines Manual (USSG) § 2D1.1(c)(2)
(2012) (“At least 2.8 KG but less than 8.4 KG of Cocaine Base”). Johnson objected,
No. 12-2138 United States v. Johnson Page 3
arguing that his base offense level should be 34 because he should be held responsible
for less than 2.8 kilograms (or 100 ounces) of cocaine base. See USSG § 2D1.1(c)(3)
(“At least 840 G but less than 2.8 KG of Cocaine Base”).1
Since the quantities in Walker’s proffer alone were both necessary and sufficient
to support a base offense level of 36, it is not surprising that the other quantities of
cocaine base were not objected to by Johnson or relied upon by the district court.
Walker estimated that she and Johnson moved a total of 160 ounces of cocaine base from
Chicago to Marquette as follows: (1) 16 ounces from October 2008 through February
2009 (Walker drove Johnson in her Stratus); (2) 59 ounces from March to September
2009 (Walker and Johnson took the bus together); (3) 72 ounces from September 2009
to mid-April 2010 (Walker made trips mostly with Johnson in her Yukon SUV); and
(4) 13 ounces from mid-April 2010 through July 2010 (Walker drove the Yukon alone).
In fact, at sentencing, Johnson expressly conceded that he should be held
accountable for the quantities that Walker estimated they distributed during the first two
periods (a total of 75 ounces or 2.1 kilograms); hence, his stipulation to a base offense
level of 34. However, Johnson contested the quantities that Walker estimated they
moved during the latter two periods. After an evidentiary sentencing hearing, at which
Walker and Johnson’s mother testified, the district court found by a preponderance of
the evidence that Johnson was directly involved with Walker in the distribution of a
slightly more conservative estimate of 82 ounces of cocaine base during the disputed
period.
In total, the district court found that Johnson’s relevant conduct involved the
distribution of at least 157 ounces (or 4.45 kilograms) of cocaine base and that he
therefore had a base offense level of 36. Further adjustments (which are not in dispute)
lowered his offense level to 34, which, when combined with a criminal history category
of IV, produced a Guidelines range of 210-262 months. The district court sentenced
1
Although additional quantities of marijuana were included in the presentence report, which
required conversion of the cocaine base quantities to a marijuana equivalency, it is clear that the district
court did not include any marijuana in the drug quantity calculation or rely on conversion to a marijuana
equivalency in determining the base offense level.
No. 12-2138 United States v. Johnson Page 4
Johnson to a 210-month term of imprisonment, to be followed by a five-year term of
supervised release. This appeal followed.
II.
Johnson’s attack on the correctness of the Guidelines calculation—a challenge
to the procedural reasonableness of his sentence—is reviewed for abuse of discretion.
Gall v. United States, 552 U.S. 38, 41 (2007). If the district court miscalculates the
Guidelines range, the resulting sentence is procedurally unreasonable. United States v.
Bolds, 511 F.3d 568, 579 (6th Cir. 2007). “‘A district court’s determination of the
quantity of drugs used to compute a defendant’s sentence is a finding of fact that should
be upheld unless clearly erroneous.’” United States v. Young, 553 F.3d 1035, 1051 (6th
Cir. 2009) (citation omitted).
When, as here, the precise quantity of drugs involved is uncertain, the district
court must “err on the side of caution” and may only hold a defendant accountable for
a specific quantity for which he is more likely than not actually responsible. United
States v. Walton, 908 F.2d 1289, 1301, 1302 (6th Cir. 1990). An estimate will suffice
as long as it is supported by a preponderance of the evidence. Id. at 1301; see also
Young, 553 F.3d at 1051.
Having conceded responsibility for the 75 ounces of cocaine base attributed to
him for the periods covering October 2008 through September 2009, Johnson cannot
(and does not) challenge the district court’s inclusion of that amount in the relevant
conduct determination. See United States v. Pruitt, 156 F.3d 638, 648 (6th Cir. 1998).
Walker, who had distributed drugs with someone else previously, began driving Johnson
to Chicago to pick up cocaine base at the end of September 2008. Johnson paid Walker
to drive him to Chicago in her Stratus to pick up cocaine base eight to ten times during
the period from October 2008 through February 2009. They then traveled together to
Chicago by bus to pick up cocaine base from March 2009 through September 2009.
Walker described carrying as much as $5,000 or $6,000 in cash in her purse. Near the
end of that period, sometime in June or July 2009, Walker began paying Johnson to
obtain an extra ounce of cocaine base to distribute for herself. With Johnson’s
No. 12-2138 United States v. Johnson Page 5
concession, and since the district court “may accept any undisputed portion of the
presentence report as a finding of fact,” Fed. R. Crim. P. 32(i)(3)(A), the district court
did not err in finding Johnson’s relevant conduct included at least 75 ounces of cocaine
base.
The question that remains is whether it was clear error for the district court to
find that Johnson continued to be involved with Walker in the distribution of an
additional 82 ounces of cocaine base during the two remaining periods: October 2009
until mid-April 2010 (72 ounces); and mid-April 2010 through July 2010 (10 ounces).
Walker testified that she purchased a Yukon SUV in October 2009, which was used to
distribute cocaine base from the Chicago area to the Marquette area three or four times
per month until her arrest at the end of July 2010. Specifically, Walker was arrested on
July 27, 2010, after being stopped while driving the Yukon and found to be in possession
of two ounces of cocaine base, some marijuana, and several Moneygram receipts.
Walker identified Johnson as her source at the time of her arrest, and gave a protected
proffer to the government in October 2010.
At sentencing, Walker testified—consistent with her earlier proffer—that during
the six-month period from October 2009 through mid-April 2010, she and Johnson
transported four to six ounces of cocaine base, three or four times per month, for a total
of 72 ounces (4 oz. x 18 trips). Walker testified that Johnson traveled with her to
Chicago on most of those trips, except on four or five occasions when he was already in
Chicago. Walker maintained that Johnson was living with her as of October 2009, but
she conceded on cross-examination that Johnson may have stayed in Chicago for
extended periods to take care of his son.
Two events marked the dividing point between the last two contested periods.
First, Johnson was arrested in Chicago on weapons charges on April 12, 2010, after
which he refused to travel with Walker and she transported the drugs alone until her
arrest in July 2010. Second, Walker was stopped in a rental car on April 13, 2010, and
$3,600 that she claimed to have to bail out an unnamed boyfriend was seized. After that
seizure, Walker initially was able to get only one ounce of cocaine base at a time, but
No. 12-2138 United States v. Johnson Page 6
that increased to two ounces in early July 2010. In all, Walker estimated that she made
seven or eight trips with cocaine base from mid-April through July 2010, for a total of
10 ounces. Together, the 72 ounces and 10 ounces totaled 82 ounces of cocaine base.
In an effort to undermine Walker’s testimony, Johnson’s mother, Sharon Moore,
testified that although her son had been living with Walker near Marquette, he had
moved back to Chicago by the end of August 2009. Moore explained that Johnson
moved back to her house in order to see his young son off to kindergarten every day
while she and her husband traveled to Louisiana during September 2009. She also
specifically recalled that Johnson was in Chicago for Thanksgiving, Christmas, and
Spring Break. Moore testified that she only saw Walker in Chicago three times during
this period, and each time Walker brought various personal belongings to her son.
Lastly, Moore confirmed that her son had abided by the bond restrictions that prevented
him from leaving the State of Illinois after his arrest in April 2010.
Finally, defense counsel made a general attack on Walker’s credibility. Walker
readily admitted that she disliked Johnson because of the trouble she got into with him,
and acknowledged that she had been romantically involved with Johnson during the
conspiracy. Defense counsel asked Walker about a letter she acknowledged having
written to Johnson from jail on March 20, 2011. In four handwritten pages, the letter
expressed anger toward Johnson in no uncertain terms both about her being in jail when
he was not and about his involvement with another woman. Walker admitted that she
had been angry but was not anymore, and added that she wrote the letter five months
after making her detailed proffer in October 2010. In fact, the letter itself complained
that Johnson had not contacted her since October.
“‘[T]estimonial evidence from a coconspirator may be sufficient to determine the
amount of drugs for which another coconspirator should be held accountable.’” United
States v. Jeross, 521 F.3d 562, 570 (6th Cir. 2008) (quoting United States v. Swanberg,
370 F.3d 622, 625 (6th Cir. 2004)). The district court’s credibility determinations will
not be disturbed absent clear error. Jeross, 521 F.3d at 570. Here, the district court
found Walker’s testimony to be credible and consistent with her earlier statements
No. 12-2138 United States v. Johnson Page 7
regarding Johnson’s involvement with her in the distribution of cocaine base. The
district court explained that—whether Johnson was living with his parents or just staying
in Chicago for extended periods—Moore’s testimony did not directly contradict
Walker’s account of Johnson’s involvement during the contested periods. Nor was there
any evidence that Johnson withdrew from the conspiracy at that or any other point.
We find no clear error in the district court’s credibility determination or the
finding that Johnson should be held accountable not only for the 75 ounces that he
conceded, but also for the additional 82 ounces estimated for the period from October
2009 through July 2010. Accordingly, the district court’s finding that Johnson’s relevant
conduct involved the distribution of at least 157 ounces of cocaine base was supported
by a preponderance of the evidence.
III.
Johnson exhorts this court to adopt a new rule declaring all uncorroborated
coconspirator testimony offered at sentencing to establish drug quantities and provided
under a cooperation agreement to be deemed presumptively unreliable as a matter of due
process. We refused a similar request to categorically exclude from sentencing
consideration a coconspirator’s hearsay statements as “inherently” or “presumptively”
unreliable. See United States v. Moncivais, 492 F.3d 652, 660 (6th Cir. 2007). It is
sufficient that the Guidelines and due process require that evidence considered at
sentencing have “‘sufficient indicia of reliability to support its probable accuracy.’” Id.
at 659 (quoting USSG § 6A1.3(a)); see also United States v. Silverman, 976 F.2d 1502,
1504 (6th Cir. 1992) (en banc). The minimum-indicia-of-reliability standard is a
“‘relatively low hurdle’ that asks only that ‘some evidentiary basis beyond mere
allegation in an indictment be presented to support consideration of such conduct as
relevant to sentencing.’” Moncivais, 492 F.3d at 659 (citations omitted).
Moreover, such a rule would have no application here as the record demonstrates
that both Walker’s out-of-court proffer and her testimony at sentencing was detailed,
consistent with earlier statements, and corroborated by other facts. Not least of the
corroborating facts was Johnson’s own concession that he participated with Walker in
No. 12-2138 United States v. Johnson Page 8
the regular movement of cocaine base from Chicago from October 2008 through
September 2009. Walker’s testimony was sufficiently reliable to be admissible at
sentencing, and it was not error for the district court to consider it. See United States v.
Stout, 599 F.3d 549, 558-59 (6th Cir.), cert. denied, 131 S. Ct. 351 (2010).
IV.
Johnson asserts for the first time on appeal that he was sentenced in violation of
the Sixth Amendment and due process rights recognized in Apprendi v. New Jersey,
530 U.S. 466, 477, 490 (2000). He acknowledged that this claim was foreclosed at the
time by Harris v. United States, 536 U.S. 545 (2002), but raised it nonetheless in
anticipation of the subsequent overruling of Harris in Alleyne v. United States, 133 S.
Ct. 2151 (2013). Johnson seems to challenge the judicial fact-finding with respect to the
district court’s quantity determination. Since there was no objection at the sentencing
hearing to the determination being made by a preponderance of the evidence, this claim
is reviewed for plain error. See United States v. Yancy, 725 F.3d 596, 600-01 (6th Cir.
2013) (explaining that plain error applies to forfeited claims even when “‘well-settled’
law (destined to be overruled) made objection ‘futile’”).
As Alleyne explains, “Apprendi concluded that any ‘facts that increase the
prescribed range of penalties to which a criminal defendant is exposed’ are elements of
the crime.” 133 S. Ct. at 2160 (quoting Apprendi, 530 U.S. at 490). While Apprendi
concerned judicial fact-finding that increased the statutory maximum sentence, the Court
in Alleyne held that “the principle applied in Apprendi applies with equal force to facts
increasing the mandatory minimum.” Id. In other words, “Apprendi’s definition of
‘elements’ necessarily includes not only facts that increase the ceiling, but also those that
increase the floor.” Id. at 2158 (plurality opinion).
In this case, however, the “fact” that resulted in Johnson’s mandatory minimum
sentence—that the conspiracy involved 280 grams or more of cocaine base—was
charged in the indictment and established as part of his guilty plea. We have recognized
that Alleyne’s extension of Apprendi to facts that increase a minimum statutory sentence
left undisturbed our decisions holding that a defendant’s knowing admission of the facts
No. 12-2138 United States v. Johnson Page 9
necessary for an enhanced sentence is fatal to his Apprendi claim. See Yancy, 725 F.3d
at 601 (citing cases). As we explained in Yancy, this is consistent with the Supreme
Court’s description of the Apprendi rule: “Any fact (other than a prior conviction) which
is necessary to support a sentence exceeding the maximum authorized by the facts
established by a plea of guilty or a jury verdict must be admitted by the defendant or
proved to a jury beyond a reasonable doubt.” United States v. Booker, 543 U.S. 220, 244
(2005).
That brings us to Johnson’s challenge to the district court’s finding with respect
to drug quantities that resulted in a Guidelines range above the minimum but below the
maximum sentence. We find no constitutional error, however, because Alleyne did not
extend Apprendi to facts that do not increase the prescribed statutory penalties. Any
doubt on this score is settled by the observation in Alleyne of what its holding did not
entail: “Our ruling today does not mean that any fact that influences judicial discretion
must be found by a jury. We have long recognized that broad sentencing discretion,
informed by judicial factfinding, does not violate the Sixth Amendment.” Alleyne,
133 S. Ct. at 2163 (citing Dillon v. United States, 130 S. Ct. 2683, 2692 (2010);
Apprendi, 530 U.S. at 481). Even aside from Johnson’s concession with respect to a
portion of the drug quantities attributed to him, the district court’s factual determination
with respect to the additional quantities did not violate his Sixth Amendment rights as
articulated in Alleyne. Accordingly, we find no error, plain or otherwise, in this regard.
V.
Defendant’s sentence is AFFIRMED.