United States v. Yureko S. Johnson , 187 F. App'x 669 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1353
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Yureko Suntaun Johnson, *
* [UNPUBLISHED]
Appellant. *
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Submitted: July 5, 2006
Filed: July 11, 2006
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Before ARNOLD, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Yureko Suntaun Johnson pleaded guilty to conspiring to distribute and possess
with intent to distribute a mixture containing cocaine base (crack), in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A), and 846 (Count 1); distributing a detectable amount
of crack, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2
(Counts 2-3); distributing 5 grams or more of crack, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2 (Count 4); possessing a detectable
amount of crack with intent to distribute it, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(C), and 18 U.S.C. § 2 (Count 5); and being a felon in possession of a firearm,
in violation of 18 U.S.C. §§ 2 and 922(g)(1) (Count 6).
Following a bench trial to determine drug quantity on Count 1, the district
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court found beyond a reasonable doubt that Johnson possessed with intent to
distribute well in excess of 50 grams of crack: 30.85 grams of crack was established
by Johnson’s guilty plea and admissions, and another 79.2 grams of crack was
established by the testimony of government witnesses at trial. With a total offense
level of 34 and a Category IV criminal history, Johnson’s Guidelines imprisonment
range was 210-262 months, increased to 240-262 months because of the 20-year
statutory mandatory minimum under Count 1. See 21 U.S.C. § 841(b)(1)(A). The
district court sentenced Johnson to concurrent terms of 240 months in prison on
Counts 1-5 and 120 months in prison on Count 6, to be followed by concurrent
supervised-release terms of 10 years on Count 1; 6 years on Counts 2, 3, and 5; 8
years on Count 4; and 3 years on Count 6.
On appeal, Johnson’s counsel has moved to withdraw and filed a brief under
Anders v. California, 386 U.S. 738 (1967), arguing that the sentence is unreasonable
and that the district court erred in finding Johnson was responsible for more than 50
grams of crack because the government witnesses’ testimony was not credible.
Johnson has filed a motion for new counsel.
We conclude that the district court did not clearly err in finding that Johnson
conspired to possess with intent to distribute 50 grams or more of crack. See United
States v. Alexander, 408 F.3d 1003, 1009 (8th Cir. 2005) (standard of review); United
States v. Gary, 341 F.3d 829, 835 (8th Cir. 2003) (district court’s determination of
witness credibility is virtually unreviewable on appeal), cert. denied, 540 U.S. 1139
(2004); United States v. Goolsby, 209 F.3d 1079, 1081 (8th Cir. 2000) (per curiam)
(in determining what weight to give trial testimony, district court is free to believe all,
some, or none of witness’s testimony; court’s drug quantity calculation, based on
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The Honorable James E. Gritzner, United States District Judge for the Southern
District of Iowa.
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witnesses’ testimony as to how much drugs witnesses saw defendant purchase and sell
over course of year, was not clearly erroneous).
We also conclude that Johnson’s sentence is not unreasonable given that he
received the statutory mandatory minimum sentence, which was at the bottom of his
Guidelines range. See United States v. Lincoln, 413 F.3d 716, 717 (8th Cir.)
(sentence within Guidelines range is presumptively reasonable, and defendant must
rebut such presumption), cert. denied, 126 S. Ct. 840 (2005); United States v. Chacon,
330 F.3d 1065, 1066 (8th Cir. 2003) (only authority for district court to depart from
statutory minimum sentence is found in 18 U.S.C. § 3553(e) and (f), which apply only
when government makes motion for substantial assistance or defendant qualifies for
safety-valve relief).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we have found no nonfrivolous issues. Accordingly, we affirm, we grant
counsel’s motion to withdraw, and we deny Johnson’s motion for new counsel.
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