United States v. Phillip Johnston , 105 F. App'x 878 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2574
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Phillip Alexander Johnston, * [UNPUBLISHED]
*
Appellant. *
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Submitted: June 17, 2004
Filed: July 29, 2004
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Before BYE, BOWMAN, and MELLOY, Circuit Judges.
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PER CURIAM.
Phillip Johnston pleaded guilty to a drug conspiracy charge in violation of 21
U.S.C. §§ 841 and 846, stipulating he was responsible for more than 160 kilograms
of marijuana and more than five kilograms of a mixture or substance containing
cocaine. Because Johnston had two prior felony drug convictions, the district court1
sentenced him to life in prison. See 21 U.S.C. § 841(b)(1)(A) (dictating a "mandatory
term of life imprisonment without release" for any person who violates § 841 "after
two or more prior convictions for a felony drug offense have become final"). We
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
affirmed the sentence on Johnston's direct appeal. United States v. Johnston, 220
F.3d 857, 864 (8th Cir. 2000).
Johnston, acting pro se, subsequently filed a 28 U.S.C. § 2255 motion to vacate
his conviction raising a host of issues. After the district court appointed him counsel,
he abandoned his pro se issues and raised an ineffective-assistance-of-counsel claim
in two parts. First, he argued his trial counsel was ineffective in failing to anticipate
Apprendi v. New Jersey, 530 U.S. 466 (2000) (Johnston pleaded guilty and was
sentenced before the Supreme Court decided Apprendi) and object to the
government's failure to include drug quantity in his indictment. Second, he argued
his counsel should have filed a supplemental brief on direct appeal because the
Supreme Court decided Apprendi while the appeal was still pending. The district
court denied the § 2255 motion, but granted a certificate of appealability (COA) on
both parts of Johnston's ineffectiveness claim.
Reviewing the district court's decision to deny the § 2255 motion de novo, Bear
Stops v. United States, 339 F.3d 777, 779 (8th Cir. 2003), we conclude the district
court correctly denied the motion. Johnston's counsel was not ineffective in failing
to make an Apprendi-like claim before the Supreme Court decided Apprendi. See
Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002) ("[C]ounsel's decision not
to raise an [Apprendi-like] issue unsupported by then-existing precedent d[oes] not
constitute ineffective assistance."). Nor was Johnston's counsel ineffective by failing
to file a supplemental brief with us after the Supreme Court decided Apprendi;
Johnston pleaded guilty and stipulated to a drug amount well in excess of the amount
required to trigger the sentence he received,2 and thus an Apprendi-like claim would
2
Johnston filed a letter brief under Fed. R. App. P. 28(j) citing Blakely v.
Washington, 124 S. Ct. 2531 (2004). Even if Blakely applies to the federal
sentencing guidelines, it would not change the outcome here since Johnston pleaded
guilty and stipulated to the relevant facts for sentencing purposes. See Blakely, 124
S. Ct. at 2541.
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have failed even if counsel had filed a supplemental brief. See, e.g., United States v.
Soltero-Corona, 258 F.3d 858, 860 (8th Cir. 2001) (holding failure to allege drug
quantity in indictment was not plain error pursuant to Apprendi where defendant
pleaded guilty and stipulated to a higher drug quantity at his plea hearing).
We decline to address the additional claim raised by Johnston on appeal – a
claim his trial counsel was ineffective in failing to advise us in the direct appeal that
his pre-sentence report had determined his prior convictions were "related" under
United States Sentencing Guideline § 4A1.2 for purposes of calculating his criminal
history – because he never raised the claim in the district court and therefore it could
not be included in the COA. See United States v. Robinson, 301 F.3d 923, 927 (8th
Cir. 2002) (holding issues beyond the scope of a COA are not properly before the
court).3
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3
Although we do not address this claim, we suspect it would likely fail. See
United States v. Rice, 43 F.3d 601, 608 (11th Cir. 1995) (rejecting the claim that a
determination of relatedness under U.S.S.G. § 4A1.2 in a pre-sentence report is
relevant to the determination of relatedness for purposes of an enhancement under 21
U.S.C. § 841(b)(1)(A)).
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