United States v. Rasheen Johnson ( 2005 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 04-1034
    ___________
    United States of America,                *
    *
    Appellee,                   *
    * Appeal from the United States
    v.                                 * District Court for the
    * Eastern District of Missouri.
    Rasheen Johnson,                         *
    *
    Appellant.                  *
    ___________
    Submitted: January 11, 2005
    Filed: June 17, 2005
    ___________
    Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
    ___________
    COLLOTON, Circuit Judge.
    Rasheen Johnson challenges the district court’s1 delivery of an Allen charge,
    see Allen v. United States, 
    164 U.S. 492
    , 501 (1896), during jury deliberations in his
    trial for unlawful possession of a firearm as a previously convicted felon, in violation
    of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He also asserts that his sentence of 90
    months’ imprisonment was imposed in violation of the Sixth Amendment. We
    conclude that Johnson is not entitled to a new trial or to resentencing, and we affirm.
    1
    The Honorable Charles A. Shaw, United States District Judge for the Eastern
    District of Missouri.
    I.
    The Allen charge draws its name from a Supreme Court decision upholding a
    district court’s instruction to deliberating jurors that although they should not simply
    acquiesce in a verdict, their duty is to arrive at a verdict if they can conscientiously
    do so, and they ought to listen to each other’s arguments with a disposition to be
    convinced. 
    Allen, 164 U.S. at 501
    . An Allen charge is thus “‘a supplemental jury
    instruction that advises deadlocked jurors to reconsider their positions.’” United
    States v. Walrath, 
    324 F.3d 966
    , 970 (8th Cir. 2003) (quoting United States v.
    Glauning, 
    211 F.3d 1085
    , 1086 n.2 (8th Cir. 2000)). The particular language with
    which the district court instructed Johnson’s jury was the Eighth Circuit model Allen
    charge, and Johnson does not assert on appeal that any error arises from the district
    court’s choice of wording, which we have approved. United States v. Thomas, 
    946 F.2d 73
    , 76 (8th Cir. 1991); see Judicial Committee on Model Jury Instructions for
    the Eighth Circuit, Manual of Model Criminal Jury Instructions for the District
    Courts of the Eighth Circuit, § 10.02, at 479 (2002).
    Johnson does argue, however, that the district court erred by issuing an Allen
    charge after only a few hours of jury deliberation, and that in the context of this case,
    the charge had the effect of coercing the jury into returning a guilty verdict. He
    contends that the court’s decision to give the supplemental instruction constitutes a
    violation of his rights to due process and trial by jury under the Fifth and Sixth
    Amendments, and requests a remand for a new trial.
    Johnson was tried on the felon-in-possession charge in July 2003, but the jury
    could not reach a verdict. A second trial commenced in October 2003 and lasted just
    over two days. Following closing arguments, the jury deliberated for slightly over
    two hours, took a break, and then deliberated for approximately two more hours. At
    that point, the foreperson sent a note advising the district court that the jury had
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    reached an impasse, and after hearing from counsel, the district court issued the Allen
    charge.
    The jury deliberated for another forty minutes and then took another break.
    During this break, while in open court, a juror asked the district court typically how
    long deliberations take, to which the court responded “there is no set time.” The juror
    then asked how long deliberations could last, and the court indicated that the jury
    could take as much time as it needed. After that break, the jury deliberated for
    approximately two more hours before reaching a verdict.
    In determining the ultimate question whether a particular Allen charge is
    impermissibly coercive, we consider what the record shows concerning the content
    of the instruction, the length of deliberation after the Allen charge, the total length of
    the deliberations, and any indicia in the record of coercion or pressure on the jury.
    E.g., 
    Thomas, 946 F.2d at 76
    . Examining these considerations in this case leads us
    to conclude that the district court committed no error.
    As noted, there is no complaint about the content of the instruction in this case.
    The jury deliberated for approximately 2 ½ hours after the district court administered
    the Allen instruction, a period of time that we have concluded is not indicative of
    coercive effect. See 
    Glauning, 211 F.3d at 1087
    (holding that jury’s 2 hours of
    deliberation after Allen charge raised no inference of coercion); 
    Thomas, 946 F.2d at 76
    (same where jury deliberated 1½ to 2 hours after Allen instruction); United States
    v. Young, 
    702 F.2d 133
    , 136 (8th Cir. 1983) (same with 2 hours of jury deliberation
    after Allen instruction); United States v. Smith, 
    635 F.2d 716
    , 721 (8th Cir. 1980)
    (same with 45 minutes of jury deliberation after Allen instruction); United States v.
    Warfield, 
    97 F.3d 1014
    , 1022 (8th Cir. 1996) (concluding that 1 hour of jury
    deliberation after Allen instruction, “while somewhat expeditious,” does not raise an
    inference of coercion). The total length of deliberations in this case, approximately
    6 hours, also fails to demonstrate coercive effect. See United States v. Johnson, 114
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    F.3d 808, 815 (1997) (holding that 6½ hours of deliberation following a 5½-day trial
    was “a period of time that was clearly not so disproportionate as to raise an inference
    that the Allen charge coerced the jury”); United States v. Cook, 
    663 F.2d 808
    , 811
    (8th Cir. 1981) (holding that a total of 6 to 7 hours of deliberation after a 2-day trial
    did not indicate coercion); 
    Smith, 635 F.2d at 722
    (holding that 4 hours of
    deliberation following a 2-day trial was not so disproportionate as to indicate
    coercion).
    There are no other indicia of coercion or pressure on the jury in this record. To
    the contrary, the district court explicitly told the jury that there was no set time limit
    for deliberations and to “take as much time as you need.” The court advised the jury
    to reach a verdict only if each member of the jury could conscientiously do so. We
    conclude that the Allen charge was administered appropriately, and there was no
    violation of Johnson’s constitutional rights.
    II.
    Johnson’s brief also argues that the sentence imposed by the district court
    violated his Sixth Amendment rights under Blakely v. Washington, 
    124 S. Ct. 2531
    (2004), because the district court, rather than a jury, made findings of fact that
    resulted in sentencing enhancements. Since then, the Supreme Court has decided
    United States v. Booker, 
    125 S. Ct. 738
    (2005), which held that application of the
    mandatory guidelines violated the Sixth Amendment in certain instances, and, as a
    remedy, declared the guidelines effectively advisory in all cases.
    Johnson’s base offense level was determined according to USSG
    § 2K2.1(a)(4)(A), which provides that where “the defendant committed any part of
    the instant offense subsequent to sustaining one felony conviction of either a crime
    of violence or a controlled substance offense,” his base offense level for unlawful
    possession of a firearm is 20. The district court applied this section based on
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    evidence that Johnson was convicted of first-degree robbery and first-degree
    attempted robbery in Missouri in 1996. Johnson argues that the court’s consideration
    of the 1996 conviction to establish his base offense level violated the Sixth
    Amendment because a jury never determined whether he did in fact have a prior
    robbery conviction. This contention fails, because Johnson admitted the fact of
    conviction by failing to object to its recitation in the presentence report, see United
    States v. Johnson, 
    2005 WL 1250323
    , at *4 (8th Cir. May 27, 2005), and in any
    event, the Sixth Amendment does not require that the fact of a prior conviction be
    determined by a jury. 
    Booker, 125 S. Ct. at 756
    ; United States v. Marcussen, 
    403 F.3d 982
    , 984 (8th Cir. 2005).
    Johnson also objects to the determination of his base offense level because
    even if the district court properly determined that he was convicted of robbery in
    1996, a jury was required to determine whether that robbery was a “crime of
    violence” and a “prior felony conviction” within the meaning of § 2K2.1(a)(4)(A).
    We reject this contention because once the sentencing court determines that a prior
    conviction exists, the characterization of that conviction as a crime of violence or
    prior felony conviction is a legal matter for the court, United States v. Patterson, 
    2005 WL 1123555
    , at *2 (8th Cir. May 13, 2005), and the court made the correct
    determinations. See USSG § 2K2.1, cmt. (n.1) (“‘Crime of violence’ has the meaning
    given that term in §4B1.2(a) and Application Note 1 of the Commentary to
    § 4B1.2.”); 
    id. § 4B1.2,
    cmt. (n.1) (“‘Crime of violence’ includes . . . robbery”); 
    id. § 2K2.1,
    cmt. (n.1) (“‘Prior felony conviction’ means a prior adult federal or state
    conviction for an offense punishable by death or imprisonment for a term exceeding
    one year.”); Mo. Rev. Stat. §§ 569.020, 558.011 (providing that first degree robbery
    is a class A felony and punishable by “a sentence not to exceed 30 years, or life
    imprisonment”).
    Johnson next contends that the district court violated the Sixth Amendment by
    applying a two-level enhancement, pursuant to USSG § 2K2.1(b)(4), based on a
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    finding that the firearm had an obliterated serial number. Johnson lodged no
    objection to the factual conclusion in the presentence report that “the defendant was
    in possession of a firearm which had its serial number obliterated,” (PSR ¶ 13), so
    again the district court’s reliance on this admission poses no constitutional problem.
    
    Booker, 125 S. Ct. at 756
    .
    Johnson has not raised a claim of non-constitutional error based on the district
    court’s application of the mandatory sentencing guidelines, and he has not argued that
    his sentence was unreasonable with regard to 18 U.S.C. § 3553(a). See 
    Booker, 125 S. Ct. at 765-66
    . We note that the district court sentenced Johnson in the middle of
    the applicable guideline range, after reciting several convictions sustained by Johnson
    between ages 17 and 20, and remarking that “you just won’t quit,” “you need to wake
    up at some point in time,” and “you need some time to figure this out.” (S. Tr. at 6-7).
    The judgment of the district court is affirmed.
    ______________________________
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