United States v. Johnson, Willie A. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4631
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WILLIE A. JOHNSON, also known as TWAN,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 03 CR 20097—Michael P. McCuskey, Chief Judge.
___________
ARGUED SEPTEMBER 26, 2006—DECIDED JUNE 4, 2007
____________
Before EASTERBROOK, Chief Judge, and BAUER and
ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Willie A. Johnson pled guilty
to the charge of conspiracy to distribute 50 or more
grams of cocaine base (“crack”) in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A) and 846. Following a sentencing
hearing, the district court calculated the Sentencing
Guidelines range, and found that Johnson’s offense level
was 33, and that his criminal history category was I. The
district court further found that Johnson was subject to
a two-level enhancement pursuant to U.S.S.G. § 3B1.1(c),
as an “organizer, leader, manager or supervisor” of the
criminal activity. His advisory Guidelines range was thus
2 No. 05-4631
135 to 168 months. The district court then considered the
factors under 18 U.S.C. § 3553(a), and imposed a sen-
tence of 168 months. Johnson appeals, arguing that the
district court improperly determined that the two-level
enhancement was appropriate as an “organizer, leader,
manager or supervisor.”
As part of his plea of guilty, Johnson admitted that on
or about January 9-10, 2002, Johnson was involved in a
conspiracy in which he provided more than 50 grams of
powder cocaine to be cooked into crack cocaine by Andre
Enoch and transported to Macon County to be sold as
crack cocaine. The Presentence Investigation Report (PSR)
detailed the underlying conduct, gleaned from investiga-
tive reports prepared by the FBI, the Illinois State
Police, the Decatur Police Department, and statements
of cooperating individuals such as Johnson’s co-conspira-
tors David Marshall and Andre Enoch. Marshall and
Enoch provided statements indicating that Johnson was
the source of the cocaine and the coordinator of the
operations. Moreover, Marshall cooperated with the
government in recording conversations relating to drug
transactions, and law enforcement officers were able to
corroborate some of the information provided by Marshall
through those recordings as well as through direct obser-
vations and other means. For instance, in a recorded
telephone conversation on June 29th, 2001, Marshall
asked Johnson to send someone to Decatur to pick up
some of the money Marshall owed Johnson for a prior drug
deal, and to return jet skis that had been borrowed from
Marshall. Later that day, a person named “Terrel” drove
to Decatur in a van registered to Johnson with the jet
skis, and received $5000 from Marshall to give to Johnson
as payment for the prior drug debt. Marshall told Terrel
that he would meet Johnson in Chicago later in the week
with the rest of the money owed. On July 3rd, Marshall
met with Johnson at his home and paid the remaining
No. 05-4631 3
$6000. Marshall wore a body wire and was under surveil-
lance for that meeting. Therefore, the observed events
and the recordings provided support for Marshall’s state-
ments that Johnson was a source of drugs, who dispatched
individuals to deliver drugs or pick up payments. Simi-
larly, Marshall stated that on a number of occasions,
Johnson’s uncle, Percy Allen, transported a kilo of cocaine
from Johnson to Decatur for Marshall. Allen later con-
firmed that on at least one occasion, he had transported
a kilo of cocaine to Marshall that Marshall had pur-
chased from Johnson.
Despite that evidence, Johnson disputed at sentencing
that he was an organizer, leader, manager or supervisor
of that conspiracy. Specifically, Johnson asserts that the
district court’s finding was clear error, because the court
based its determination on unreliable evidence and
failed to properly inquire into the reliability of the evi-
dence or make explicit fact findings supporting its con-
clusion.
We review a district court’s determination of role in the
offense for clear error, and will reverse only if after
reviewing all of the evidence, we are left with the definite
and firm conviction that a mistake has been made. United
States v. Hankton, 432 F.3d 779, 789 (7th Cir. 2005).
Moreover, a district court in determining a sentence is
not bound by the same stringent evidentiary standards
as are applicable in a criminal trial. United States v.
Taylor, 72 F.3d 533, 543 (7th Cir. 1995). Hearsay, for
instance, may be considered at sentencing even if it
would not have been admissible at trial, and has been
characterized as an integral part of the sentencing pro-
cess. Hankton, 432 F.3d at 790; United States v. Badger,
983 F.2d 1443, 1459 (7th Cir. 1993). A court at sentencing
“ ‘may appropriately conduct an inquiry broad in scope,
largely unlimited either as to the kind of information he
may consider, or the source from which it may come.’ ” Id.,4 No. 05-4631
quoting United States v. Harty, 930 F.2d 1257, 1268 (7th
Cir. 1991). The caveat is that the defendant has a due
process right to be sentenced on the basis of reliable
information. Taylor, 72 F.3d at 543. Accordingly, under
the Guidelines the court must limit consideration to
information that has “ ‘sufficient indicia of reliability to
support its probable accuracy.’ ” United States v. Roche,
415 F.3d 614, 618 (7th Cir. 2005); U.S.S.G. § 6A1.3(a).
Johnson asserts that the district court erred in relying
on the Presentence Investigation Report (PSR) in finding
that the enhancement was appropriate. He maintains
that he had raised sufficient concerns about the reli-
ability of the information in the PSR but that the district
court failed to then make a searching inquiry into the
reliability of the information as is required. In objecting
to the PSR in the district court, Johnson first contended
that the statements by Marshall and Enoch were unreli-
able because they were facing criminal charges and were
attempting to better their own situations by implicating
him. We have repeatedly held, however, that even the
testimony of a potentially biased witness is sufficient to
support a finding of fact. United States v. Zehm, 217 F.3d
506, 514 (7th Cir. 2000); United States v. Galbraith, 200
F.3d 1006, 1012 (7th Cir. 2000). In fact, the district court
may credit testimony that is “totally uncorroborated and
comes from an admitted liar, convicted felon, or large
scale drug-dealing, paid government informant.” United
States v. Romero, 469 F.3d 1139, 1147 (7th Cir. 2006),
quoting United States v. Blalock, 321 F.3d 686, 690 (7th
Cir. 2003) et al. Accordingly, their status as self-interested
co-conspirators does not thereby render the informa-
tion inherently unreliable.
Johnson next asserts that the PSR inaccurately re-
counted that in a recorded conversation of January 9th,
Marshall told Johnson that he wanted Johnson or Enoch
No. 05-4631 5
to bring him nine ounces of crack cocaine. At the sentenc-
ing hearing, the government agent testified that Marshall
initially spoke with Johnson in that conversation but
did not discuss the drug transaction, and then Marshall
conversed with Enoch and told Enoch that he should tell
“Cuz” to have Enoch bring down nine ounces of crack
cocaine. The agent testified that in the context of that
conversation, the term “Cuz” applied to Johnson. Marshall
also indicated that Johnson avoided direct conversations
or transactions regarding drugs. Although the PSR
inaccurately recounts the conversation, that is irrelevant
because Johnson acknowledges in his brief that “[i]t
appears that the district court ultimately rejected the
notion that Johnson was involved in this drug conversa-
tion.” Appellant’s Brief at 24. Johnson’s only argument
as to this alleged error, then, appears to be that the
inconsistency between the recorded conversation and the
PSR calls into question the reliability of the PSR as a
whole. An isolated error that is not relied upon by the
court, however, does not call into question the report in
its entirety, particularly where the rest of the report
did not rely on any recordings and Johnson makes no
argument of any similar factual inaccuracies elsewhere.
Moreover, the lack of direct participation by Johnson
in that portion of the conversation does not absolve him
of any role as leader or organizer. Johnson cannot claim
that he was uninvolved in that transaction, as his guilty
plea acknowledges that he was the source of the drugs
that were supplied to Enoch following that conversation,
who then cooked it into crack cocaine to forward to Mar-
shall. Statements by Marshall and Enoch indicated that
Johnson was the one who supplied the drugs to be cooked
into crack on that and other occasions and that he coordi-
nated the deliveries to Marshall. That Johnson sought
to limit his criminal exposure by not engaging in direct
communications regarding the drug deals does not render
6 No. 05-4631
unreliable the statements of Enoch or Marshall, and in
fact that is perfectly consistent with the position of a
leader or supervisor. It is hardly unusual for a supervisor
to limit his criminal exposure, and for the underlings to
be more exposed in a drug conspiracy.
Johnson’s objections ultimately hinge on his belief that
the statements by Marshall and Enoch should not have
been relied on by the district court because they were
uncorroborated by recordings or other similar evidence,
and that Marshall and Enoch had a motive to lie. That
argument predominated in Johnson’s brief and at the
sentencing hearing, at which the lack of corroboration
was repeatedly raised. But we rejected a similar argu-
ment in United States v. Galbraith, 200 F.3d 1006, 1012
(7th Cir. 2000). Galbraith complained in that case about
the district court’s decision to credit information provided
by George Songer, a person who had been convicted of
prior drug offenses and was facing possible drug
charges himself, and who claimed to have knowledge of
additional drug amounts involving Galbraith. In addition
to questioning Songer’s motives, Galbraith decried the
lack of corroboration of Songer’s testimony. We held in
Galbraith that “these facts do not necessarily render him
unreliable.” Id. In fact, in Galbraith we upheld the dis-
trict court’s reliance on Songer’s statements, even though
we were disturbed by “the fact that Songer’s two inter-
views yielded vastly different information.” Id. We con-
cluded that the district court did not err in crediting
Songer’s testimony as to 148 grams and discrediting other
testimony as to a larger amount, because the testimony
as to the 148 grams “bore indicia of reliability—facts and
details—that were missing from the statement regard-
ing the larger amount.” Id. at 1013.
Johnson has far less indicia of unreliability than were
present in Galbraith. There are no internal incon-
sistencies identified here, and we have squarely rejected
No. 05-4631 7
the notion that corroboration is required in order for a
district court to find statements reliable. Instead, “the
hallmark of reliability is consistency of facts and de-
tails. . . . We require only that the testimony be consistent,
or that the trial judge provide an explanation for crediting
one of the witness’s inconsistent statements over the
others.” Zehm, 217 F.3d at 514; Galbraith, 200 F.3d at
1012. That standard is met here. The statements are
consistent, and in fact are corroborated by the recordings
and observed activities.
Johnson’s remaining argument, that the district court
failed to articulate fact findings underlying its § 3B1.1
enhancement and that the evidence was insufficient to
support that enhancement, fares no better. Under the
Commentary to § 3B1.1, in determining whether the
enhancement applies,
[f]actors the court should consider include the exer-
cise of decision making authority, the nature of partici-
pation in the commission of the offense, the recruit-
ment of accomplices, the claimed right to a larger
share of the fruits of the crime, the degree of participa-
tion in planning or organizing the offense, the nature
and scope of the illegal activity, and the degree of
control and authority exercised over others.
U.S.S.G. § 3B1.1, Application Note 4. The district court
identified each of those factors and found that the record
supported the enhancement for each of them. Johnson
nevertheless challenges those findings, asserting that
the factual findings were not based on the record or on
reliable evidence introduced at the sentencing hearing.
This argument ultimately rests on the same challenge to
the reliability of the statements by Marshall and Enoch,
which we have already rejected. When those statements
are considered, the record provides ample support for the
district court’s decision to apply the enhancement. Johnson
8 No. 05-4631
has failed to demonstrate that the district court committed
clear error in applying the § 3B1.1(c) enhancement. The
decision of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—6-4-07