United States v. Maurice Johnson, Jr. ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued November 14, 2018
Decided November 26, 2018
Before
FRANK H. EASTERBROOK, Circuit Judge
DIANE S. SYKES, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 18-1634
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of
Wisconsin.
v.
No. 3:17-cr-67
MAURICE JOHNSON, JR.,
Defendant-Appellant. James D. Peterson,
Chief Judge.
ORDER
The district court sentenced Maurice Johnson, a career offender, to 96 months in
prison when the applicable guidelines range was 151 to 188 months. On appeal Johnson
asks to be resentenced, arguing that the district court relied on inaccurate information at
sentencing. The alleged error, however, relates to an enhancement under a guidelines
calculation that would have applied only if he were not a career offender. Thus, the fact
that Johnson asserts is “an obvious fiction”—that he possessed a stolen firearm—had no
bearing on his sentence, and we affirm.
No. 18-1634 Page 2
Johnson was driving his girlfriend’s rental car when police officers pulled him
over in response to a report from a rental company that the car had been stolen. Johnson
told the officers that he had both heroin and a handgun in the car. The officers arrested
Johnson and confiscated 2.932 grams of heroin with traces of fentanyl. Their
investigation revealed that a man named Bradley Benson had reported the gun as
stolen.
Johnson pleaded guilty to illegally possessing heroin and the gun. See 21 U.S.C.
§ 841(a)(1); 18 U.S.C. § 922(g)(1). At sentencing the district court considered two
possible guidelines ranges because closely related convictions are grouped if the
conduct that amounts to one crime is also a “special offense characteristic” of another
offense. See U.S.S.G. § 3D1.2(c). In Johnson’s case, drug trafficking was a special offense
characteristic of the firearm offense, U.S.S.G. § 2K2.1(b)(6)(B), and vice versa,
§ 2D1.1(b)(1).
The guideline calculation for the drug-trafficking conviction included a career-
offender enhancement because Johnson had at least two prior controlled-substance
convictions for manufacturing and delivering heroin and cocaine. See U.S.S.G.
§ 4B1.1(a). The total offense level was 29, and an advisory sentencing range of 151 to 188
months’ imprisonment resulted. The sentence for the firearm-possession conviction,
however, was not subject to a career-offender enhancement, and thus the total-offense
level was 27 and the guidelines range 120 to 150 months. That calculation included a
two-level enhancement because Johnson’s gun had been reported stolen. See U.S.S.G.
§ 2K2.1(b)(6)(B). Though Johnson maintains, without dispute, that he bought the gun
from a drug dealer named “Stain,” the enhancement applies no matter who stole the
gun. See United States v. Sanchez, 507 F.3d 532, 538–39 (7th Cir. 2007).
Johnson objected to the two-level enhancement for possessing a stolen gun
because there were “reasons to doubt” Benson’s story. He posited that Benson falsely
reported the gun as stolen because he was a “straw purchaser for firearms” who feared
that any crimes committed with the gun he resold (presumably to “Stain”) could be
traced to him. Johnson pointed to facts he found suspicious in the police report to
support his theory.
Although agreeing that there were “some peculiarities” with the police report,
the district court overruled Johnson’s objection and found that the gun was stolen. The
court also underscored that any discussion of the stolen-gun enhancement was
“academic” because the drug-trafficking offense level took precedence in determining
the advisory sentencing range: judges must use the higher of the offense levels in the
No. 18-1634 Page 3
career-offender table or in the guideline that would apply if the defendant were not a
career offender. See U.S.S.G. § 4B1.1(b). Accordingly, the district court adopted the
guidelines range that included the career-offender enhancement, 151 to 188 months,
and imposed 96-month concurrent sentences.
On appeal Johnson renews his objection to the stolen-gun enhancement,
highlighting the same “reasons to doubt” Benson’s theft report. He argues that the
district court procedurally erred in finding that Johnson’s gun was stolen based on a
police report that lacked sufficient indicia of reliability. His argument is meritless,
however, because the stolen-gun enhancement did not factor into his sentence. So, even
if Johnson could demonstrate that the police report on which the enhancement would
have been based is indeed a “fabrication,” any error related to the alternative
calculation would be harmless. See United States v. Andreas, 216 F.3d 645, 658 (7th Cir.
2000).
The guidelines calculation for the offense of illegally possessing a firearm was
relevant for one reason: to determine whether it would lead to a higher or lower offense
level than the one applicable to the drug-trafficking conviction. Because the latter was
higher by two levels, it controlled. See U.S.S.G. § 4B1.1(b); United States v. Williams, 694
F.3d 917, 918 (7th Cir. 2012). Therefore, Johnson’s argument about the non-career-
offender sentencing range is irrelevant. See United States v. Turner, 604 F.3d 381, 384
(7th Cir. 2010). Johnson seeks a change that would decrease the offense level for the
firearm offense by two levels, but only an increase could affect his sentence (and not in
his favor). He therefore cannot show prejudice and has nothing to gain from a remand.
For completeness, however, we note that Johnson’s argument challenging the
stolen-gun enhancement misses the mark. A district court must find the facts sufficient
to support an enhancement by a preponderance, and this court reviews such findings
only for clear error. United States v. Sewell, 780 F.3d 839, 848 (7th Cir. 2015). Johnson’s
speculative assertions do not establish that the police report was unreliable, see
United States v. Musgraves, 831 F.3d 454, 468–69 (7th Cir. 2016); he simply beckons us to
reweigh the evidence, something we will not do, Sewell, 780 F.3d at 847.
AFFIRMED