United States v. Telize Johnson ( 2008 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 07-1930
    ___________
    United States of America,              *
    *
    Plaintiff - Appellee,      *
    *
    v.                               * Appeal from the United States
    * District Court for the Southern
    Telize Johnson,                        * District of Iowa.
    *
    Defendant - Appellant.     *
    *
    ___________
    Submitted: January 17, 2008
    Filed: February 28, 2008
    ___________
    Before LOKEN, Chief Judge, HANSEN and MURPHY, Circuit Judges.
    ___________
    MURPHY, Circuit Judge.
    Telize Johnson pled guilty to possession with intent to distribute 50 grams or
    more of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1) and § 841(b)(1)(A), and
    to possession of a firearm in furtherance of a drug trafficking crime, in violation of 
    18 U.S.C. § 924
    (c). Johnson faced a statutory mandatory minimum sentence of 180
    months, but the government moved to reduce his sentence in light of his substantial
    assistance. The district court1 imposed the sentence recommended by the government
    1
    The Honorable James E. Gritzner, United States District Judge for the Southern
    District of Iowa.
    – a total of 126 months. Johnson appeals, arguing that the district court erroneously
    believed it lacked authority to reduce the sentence on the firearm charge, that it failed
    to consider the factors in 
    18 U.S.C. § 3553
    (a) and the discrepancies between crack and
    power cocaine sentences, and that he is entitled to resentencing. We affirm.
    Telize Johnson sold crack cocaine to a confidential informant in multiple
    controlled purchases in April 2005. On April 25 a search of his residence pursuant
    to a warrant discovered over 50 grams of cocaine base,2 two handguns, ammunition,
    a digital scale, and numerous plastic baggies. Johnson was arrested and after being
    read his Miranda rights, he admitted that he had been selling crack for the past year
    and a half and that he had the guns for protection. He decided to cooperate with the
    authorities and participated in several interviews in which he provided information
    about his own and others' involvement in the local drug trade. Johnson identified his
    suppliers and associates and unsuccessfully tried to arrange a meeting between law
    enforcement officials and one source. He also testified in a trial during which the
    defendant was convicted, and the cooperating witnesses were subjected to threats; the
    presiding judge was Johnson's sentencing judge.
    After his arrest Johnson entered into a plea agreement with the government. He
    pled guilty to two of the counts against him: possession with intent to distribute 50
    grams or more of cocaine base, in violation of 
    21 U.S.C. § 841
    (a)(1) and
    § 841(b)(1)(A), and use of a firearm, in furtherance of a drug trafficking offense in
    violation of 
    18 U.S.C. § 924
    (c). The other charges in the indictment were dismissed
    on the government's motion.
    Each count of conviction carried a mandatory minimum prison sentence. The
    minimum sentence was ten years for the drug charge, see 
    21 U.S.C. § 841
    (b)(1)(A),
    2
    The stipulation of facts lists a total amount of 61 grams found in the search, but
    the presentence report and briefs refer to 56.4 grams. Either amount falls within the
    statutory range of 50 grams or more and the guideline range of 50 to 150 grams.
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    and five years for the firearm charge, see 
    18 U.S.C. § 924
    (c)(1)(A)(i). The district
    court determined that the sentencing guideline range was 120 to 121 months on the
    drug count, based on a total offense level of 29 and criminal history II, and a
    mandatory consecutive 60 months for the gun count.
    Johnson's statutory minimum sentence for both counts would have been 180
    months, but in consideration of Johnson's substantial assistance to law enforcement,
    the government made a motion for a 30% reduction under 
    18 U.S.C. § 3553
    (e) and
    U.S.S.G. § 5K1.1, recommending a total sentence of 126 months. Although the
    district court viewed this as an "aggressive" recommendation, it granted the motion
    and sentenced Johnson to 126 months. Instead of applying a 30% reduction to both
    counts, the court lowered the drug sentence by 45% and imposed a consecutive 60
    month sentence for the firearm charge.
    Johnson appeals his sentence, arguing that he is entitled to resentencing because
    the district court erroneously believed that it did not have authority to reduce the
    sentence on the gun charge below the statutory minimum. He also complains that the
    district court failed to consider the factors in 
    18 U.S.C. § 3553
    (a) and the discrepancy
    in the treatment of crack and powder cocaine under the guidelines. In a letter filed
    under Federal Rule of Appellate Procedure 28(j), Johnson contends that he should be
    resentenced in light of recent amendments to the guidelines and the Supreme Court
    decisions in Kimbrough v. United States, 
    128 S. Ct. 558
     (2007) and Gall v. United
    States, 
    128 S. Ct. 586
     (2007). The government responds that the district court did not
    err in imposing a consecutive 60 month sentence for the gun charge but that any error
    that might have occurred in respect to that would have been harmless. It argues that
    the 
    18 U.S.C. § 3553
    (a) factors were irrelevant to Johnson's sentencing because
    substantial assistance was the ground on which the government moved to sentence
    Johnson below the statutory minimum.
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    Johnson first argues that the district court's failure to reduce his sentence for his
    firearm conviction based on his substantial assistance entitles him to a remand for
    resentencing. He asserts that the district court did not understand that it had authority
    to depart from the statutory minimum on that count and cites to United States v.
    Schaffer, where a district court departed below the mandatory minimum sentence
    under § 924(c) for the defendant's substantial assistance under 
    18 U.S.C. § 3553
    (e)
    and we affirmed. See 
    110 F.3d 530
    , 533-34 (8th Cir. 1997). The government counters
    that the district court understood its authority but chose not to depart on the gun count.
    We will generally not review a decision not to grant a downward departure
    unless the district court had an unconstitutional motive or erroneously thought that it
    was without authority to grant the departure. United States v. Frokjer, 
    415 F.3d 865
    ,
    874-75 (8th Cir. 2005) (citation omitted). A district court's opinion that it lacks the
    power to depart from the guidelines is a pure question of law which we review de
    novo. United States v. Kelley, 
    956 F.2d 748
    , 751 (8th Cir. 1992) (citation omitted).
    Contrary to Johnson's representations, the district court never said during his
    sentencing hearing that it lacked authority to depart downward on the weapons charge.
    The court's statement that the law required a consecutive 60 month sentence was
    consistent with 
    18 U.S.C. § 924
    (c)(1)(A)(i). The district court recognized that the
    government's substantial assistance motion allowed it to go below the statutory
    minimums, but it chose to focus its reduction on the drug charge. Even though a
    district court may depart under § 3553(e) below the 60 month mandatory minimum
    required by § 924(c), see Schaffer, 110 F.3d at 533-34, it remains within the district
    court's discretion whether to do so. Its decision on this sentencing point is
    unreviewable on appeal unless the district court misunderstood its authority or had an
    unconstitutional motive in refusing to exercise that authority. See Frokjer, 
    415 F.3d at 874-75
    . Neither circumstance exists here.
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    Moreover, any error that might have resulted from the district court's
    application of the substantial assistance reduction would have been harmless. See
    United States v. Hadash, 
    408 F.3d 1080
    , 1082-83 (8th Cir. 2005) (mistaken
    application of guidelines was harmless where district court stated it would reach same
    sentence anyway). The district court plainly stated that "the ultimate sentence that the
    court would impose would be the same" even if it had applied the 30% recommended
    reduction to both counts. To reach the recommended 30% reduction, it chose to
    reduce the sentence on the drug count by 45%. Any potential error in the application
    of the reduction was thus harmless and does not require resentencing. See Hadash,
    
    408 F.3d at 1082-83
    .
    Johnson next objects to the district court's failure to consider the factors in 
    18 U.S.C. § 3553
    (a) and the discrepancies between the guideline ranges for crack and
    powder cocaine. The government responds that the district court correctly limited its
    consideration to the assistance Johnson provided under 
    18 U.S.C. § 3553
    (e). This is
    a legal question which we review de novo. United States v. Williams, 
    474 F.3d 1130
    ,
    1131 (8th Cir. 2007).
    In reducing a sentence below the statutory minimum under 
    18 U.S.C. § 3553
    (e)
    for a defendant's substantial assistance, a court may only consider factors related to
    that assistance and may not use the factors in 
    18 U.S.C. § 3553
    (a) to decrease the
    sentence further. 
    Id. at 1130, 1132
    ; see also United States v. Plaza, 
    471 F.3d 928
    , 930
    (8th Cir. 2006) (a reduction pursuant to U.S.S.G. § 5K1.1 or § 3553(e) can be based
    only on assistance related considerations) (citations omitted); United States v.
    Freemont, No. 06-3175, 
    2008 WL 215863
    , at *5 (8th Cir. Jan. 28, 2008). In Williams,
    we vacated a drug distribution sentence and remanded for resentencing because the
    district court had used § 3553(a) factors to lower the sentence after it had already been
    reduced below the statutory minimum based on a § 3553(e) motion. 
    474 F.3d at 1132
    .
    We reasoned that a court's authority to reduce a sentence below the statutory minimum
    is limited under § 3553(e), and to employ factors unrelated to the defendant's
    -5-
    assistance in reducing a sentence below the mandatory minimum would exceed that
    limited authority. Id.; see also Freemont, 
    2008 WL 215863
    , at *5. Johnson's
    argument directly conflicts with this precedent.
    Johnson cites Kimbrough and Gall, but both of those decisions concerned
    sentencing deviations from the guideline range rather than departures from statutory
    mandatory minimums as occurred in this case. See Kimbrough, 
    128 S. Ct. at 565-66
    ;
    Gall, 
    128 S. Ct. at 591
    ; see also Freemont, 
    2008 WL 215863
    , at *4 (Gall does not
    affect a statutory minimum sentence). Although Kimbrough empowers a district court
    to consider the disparity between guideline sentences for powder cocaine and crack,
    it does not require it to do so. United States v. Roberson, No. 06-3458, 
    2008 WL 323223
    , at *4 (8th Cir. Feb. 7, 2008). Here, the district court only had authority to
    sentence Johnson below the statutory minimum because of the government's § 3553(e)
    motion, and it properly limited its deliberation to the quality, nature, and significance
    of the assistance Johnson provided. See Williams, 
    474 F.3d at 1132
    .
    Johnson finally contends that he is entitled to resentencing based on recent
    amendments to the guideline manual which reduce the base offense level derived from
    the amount of cocaine base. See Sentencing Guidelines for United States Courts, 
    72 Fed. Reg. 28,558
    , 28,572 (May 21, 2007) (changing base offense levels to reduce
    sentencing differentials for powder and crack cocaine). These amendments do not
    apply retroactively until March 3, 2008, see Sentencing Guidelines for United States
    Courts, 
    73 Fed. Reg. 217
    , 217 (Jan. 2, 2008), but they would not affect Johnson in
    any event because his sentence was subject to statutory mandatory minimums. 
    Id. at 218
    , app. n. 1(A); see also U.S.S.G. § 5G1.1(b) (when the statutory minimum sentence
    exceeds the guideline range, the statutory sentence "shall be the guideline sentence").
    Johnson submits that these amendments would reduce his guideline range for the drug
    charge to 78 – 97 months, but because this is lower than the 120 month minimum in
    
    21 U.S.C. § 841
    (b)(1)(A), 120 months would become the guideline sentence under §
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    5G1.1(b). Since the district court used the 120 month mandatory minimum as its
    point of departure, resentencing is not warranted.
    For these reasons we affirm the sentence imposed by the district court.
    ______________________________
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