United States v. Lamont Johnson ( 2023 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 9, 2023 Decided April 11, 2023
No. 21-3094
UNITED STATES OF AMERICA,
APPELLEE
v.
LAMONT JOHNSON, ALSO KNOWN AS BLACK,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cr-00112-1)
Stephen C. Leckar, appointed by the court, argued the
cause and filed the briefs for appellant.
Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Chrisellen R.
Kolb, Nicholas P. Coleman, and George P. Eliopoulos,
Assistant U.S. Attorneys.
Before: SRINIVASAN, Chief Judge, WILKINS, Circuit
Judge, and TATEL, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge TATEL.
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TATEL, Senior Circuit Judge: After a jury convicted
Lamont Johnson of drug trafficking and unlawful firearm
possession, the district court sentenced him to 420 months
imprisonment. Johnson challenges that sentence, arguing that
the district court procedurally erred by miscalculating his
Sentencing Guidelines range in three ways: overestimating the
quantity of phencyclidine (“PCP”) he possessed, finding that
he made credible threats of violence, and determining that he
acted as a manager or supervisor. As explained below, we
affirm on the first two points, reverse the role enhancement,
and remand for resentencing.
I.
While investigating drug trafficking and related shootings
in southeast D.C., the FBI learned that certain dealers,
including Antonio Tabron, obtained PCP through a
middleman, Jamar Gage. In turn, Gage and another individual,
Antoine Prailow, bought PCP from Appellant Johnson.
Wiretap evidence revealed that in 2017, Johnson sold drugs to
Gage and discussed with others a major shipment he was
expecting from the West Coast. When the shipment arrived,
Johnson called his wife, Karen Johnson, arranging to pick up
from her apartment a gun, funnels, and gasoline fuel treatment
to dilute the PCP. The government then arrested Johnson and
discovered an AR-15 and 1.4 kilograms of PCP in the trunk of
his car.
A jury convicted Johnson of conspiring to distribute
1 kilogram of a mixture containing 100 grams of PCP;
possessing with intent to distribute the same; and possessing a
firearm as a felon and in furtherance of a drug trafficking
offense. At sentencing, based on the Drug Quantity Table in
the U.S. Sentencing Guidelines, the district court found
Johnson responsible for 3 to 10 kilograms of PCP and set
Johnson’s base offense level at 32. U.S.S.G. § 2D1.1(c)(4). The
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court also imposed a two-level enhancement for “ma[king] a
credible threat to use violence,” U.S.S.G. § 2D1.1(b)(2), and a
three-level role enhancement for being “a manager or
supervisor” in a “criminal activity [that] involved five or more
participants or was otherwise extensive,” U.S.S.G. § 3B1.1(b).
Determining that the Guidelines range for the drug trafficking
counts was 324 to 405 months, the district court imposed a mid-
range sentence of 360 months. The court imposed mandatory-
minimum sentences on the other counts, for a total of 420
months.
Johnson appeals, arguing that the district court
procedurally erred by miscalculating the Guidelines range for
the drug trafficking counts. Specifically, he argues that he was
responsible for less than 3 kilograms of PCP, and that he
neither credibly threatened to use violence nor operated as a
manager or supervisor.
II.
Where, as here, the defendant argues that the district court
“miscalculat[ed] the Guidelines,” we “accept the district
court’s findings of fact unless they are clearly erroneous and
give due deference to the district court’s application of the
[G]uidelines to the facts.” United States v. Flores, 995 F.3d
214, 219 (D.C. Cir. 2021) (second alteration in original)
(internal quotation marks omitted).
Drug Quantity
The base offense level for drug crimes depends on “the
quantity of drugs involved in the offense.” United States v.
Miller, 890 F.3d 317, 329 (D.C. Cir. 2018) (internal quotation
marks omitted). “The district court must determine [drug]
weights by a preponderance of the evidence subject to appellate
review for clear error.” United States v. Graham, 162 F.3d
41180, 1182 (D.C. Cir. 1998). As noted, the district court found
that Johnson’s offense involved 3 to 10 kilograms of PCP,
which amounts to a base offense level of 32. This finding was
not clearly erroneous. Record evidence demonstrates that
Johnson bought a 1-gallon shipment from the West Coast and
sold another 24 fluid ounces to Gage. Together, these amounts
surpass the 3-kilogram threshold. See Supplemental Appendix
(“S.A.”) 126–27 (unrebutted expert testimony that a gallon of
PCP “conservative[ly]” weighs about 2.75 kilograms and 1
fluid ounce weighs about 22 grams).
Johnson’s contrary arguments lack merit. Start with the
West Coast shipment. Seizing on the district court’s use of the
plural “gallons,” Johnson insists that nothing in the record
shows that the offense involved “gallons of PCP.” Johnson Br.
17 (internal quotation marks omitted). But when discussing the
West Coast shipment specifically, the district court referred to
it as a single gallon. Joint Appendix (“J.A.”) 847 (Johnson
“wanted [Prailow] to deliver the gallon”). And given the
evidence of prior sales to Gage, the government had to prove
only that the West Coast shipment amounted to one gallon to
surpass 3 kilograms. See S.A. 126–27. The government’s
expert testified that PCP shipments from the West Coast are
“usually” or “typically” sent in quantities of “at least a gallon”
because “[y]ou’re taking a lot of risk.” J.A. 590. When
discussing the shipment, Johnson said that he “had a whole one
on there this time,” J.A. 664, and in his brief here, he never
disputes that the West Coast shipment was a gallon, Johnson
Br. 4 (acknowledging he was “seeking a gallon of PCP” and “it
arrived in mid-October”). See also Oral Arg. Rec. 8:18–8:37
(agreeing he “was seeking a gallon”).
Johnson’s arguments about the prior sales to Gage fare no
better. Johnson claims that their coded communications are
“incapable of a responsible reconciliation,” Johnson Br. 8, but
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the code was hardly enigmatic. The government’s expert
explained that the speakers simply swapped “16th” and “8th
street[s]” for 16 and 8 fluid ounces. S.A. 134–35. Using this
code, Johnson agreed to sell Gage 8 fluid ounces on one
occasion and at least 16 fluid ounces on a prior occasion. J.A.
649, 654–55.
Because the West Coast shipment and the prior sales
together exceeded the 3-kilogram threshold, we are hardly left
with a “definite and firm conviction that a mistake has been
committed.” See United States v. Borda, 848 F.3d 1044, 1069–
70 (D.C. Cir. 2017) (internal quotation marks omitted).
Credible Threat
The Guidelines direct the sentencing court to increase the
offense level by 2 if the defendant “made a credible threat to
use violence.” U.S.S.G. § 2D1.1(b)(2). The district court found
that Johnson made three such threats. Specifically, it found that
he twice threatened “Shorty,” who allegedly owed him $2800.
J.A. 689 (“Imma strap up, man, and slide up on shorty man.”);
J.A. 728 (“Shawty gonna make me punch him in the mouth
with that gun.”). The district court also found that Johnson
credibly threatened violence when he warned Karen that she
“better not have no n**** in there around my shit! I’m a kill
his ass! On my life! Kill his ass!” J.A. 742.
Our court has yet to determine what constitutes a “threat
to use violence” for purposes of this Guideline. We need not do
so here, however, because Johnson’s only argument as to why
these statements do not qualify as threats is that he never
“intended to use violence.” Johnson Br. 55. But a threat is a
threat, even if the speaker never intends to carry it out. See
Elonis v. United States, 575 U.S. 723, 740 (2015) (defendant
violates federal fraud statute where he knows “the
communication will be viewed as a threat”). Johnson also
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insists that if his statements were threats, they were not credible
threats. Johnson, however, was both armed and had been
convicted of several violent crimes, including shooting
someone. And as the district court observed, much was at stake:
Shorty owed Johnson a substantial debt, and anyone in Karen’s
apartment would place his contraband in jeopardy. Given this
contextual evidence, the district court committed no error by
finding that Johnson made a credible threat.
Manager or Supervisor
The Guidelines direct the sentencing court to increase the
offense level by 3 if the defendant “(i) managed or supervised
(ii) at least one ‘participant’ who was criminally responsible
for an offense (iii) in a criminal activity that involved five or
more participants or was otherwise extensive.” United States v.
Vega, 826 F.3d 514, 539 (D.C. Cir. 2016) (per curiam). A
manager or supervisor must “exercise some control over
others.” United States v. Bikundi, 926 F.3d 761, 801 (D.C. Cir.
2019) (internal quotation marks omitted). “We understand the
concept of ‘control’ or ‘authority,’ implicit in the notion of
‘management’ or ‘supervision,’ to connote some sort of
hierarchical relationship, in the sense that an employer is
hierarchically superior to his employee.” United States v.
Quigley, 373 F.3d 133, 140 (D.C. Cir. 2004). The district court
determined that Johnson managed or supervised five people:
his wife Karen, three codefendants, and a potential buyer.
Johnson argues that “nothing shows him . . . controlling at
least one . . . associate[] with mens rea.” Johnson Br. 5. In
response, the government focuses on Karen, arguing that
Johnson managed or supervised her by “exercising a strong
degree of control over [her] regarding his PCP, related
paraphernalia, and gun.” Government Br. 52. Indeed, as the
government emphasizes, he asked Karen to “secure this shit,”
J.A. 753, because someone might “get the police,” J.A. 754,
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and she agreed to “put it behind [her] [headboard],” J.A. 756.
But this exchange occurred only after an extended dialogue
reflecting give-and-take, not hierarchy or control. Karen
objected to his coming over, saying, “I don’t want to be
involved in none of that,” J.A. 740, and telling him to “do what
you need to do with that girl,” meaning his girlfriend, J.A. 746.
“[W]hy you bring that stuff here,” she complained, warning,
“You not gonna do it out of my house.” J.A. 747, 752. Johnson
acquiesced, asking her instead to “bring [his] gun . . .
downstairs” so he could “take [his] shit uptown.” J.A. 748.
“OK, cool,” she responded. Id. A few minutes later, Johnson
called back, pleading with her, “I’m just like you couldn’t hold
me down for a couple weeks? . . . The first mother fucking
3,000 I make I’m gone.” J.A. 752–53. Only then did Karen
relent. “Okay cool. I can give you two weeks.” Id.This conversation reveals that Karen was no “underling[],”
see United States v. Olejiya, 754 F.3d 986, 991 (D.C. Cir.
2014), and that Johnson was no “commander” with “authority
to direct” her, Flores, 995 F.3d at 221–22. Instead, as the
district court acknowledged in another context, Karen was “a
very strong person” who “wanted the drugs and guns out of
there,” but who “was willing to help [her husband] despite her
anger and upset.” J.A. 859. The evidence of control is
particularly weak given the spousal relationship. See United
States v. McGregor, 11 F.3d 1133, 1139 (2d Cir. 1993) (“One
isolated instance of a drug dealer husband asking his wife to
assist him in a drug transaction is not the type of situation that
section 3B1.1 was designed to reach.”); United States v.
Mankiewicz, 122 F.3d 399, 406 (7th Cir. 1997) (where father
assisted son with one large drug sale, concluding “this
relationship is [not] the sort of real and direct influence, aimed
at furthering the criminal activity, that the enhancement was
intended to punish”) (internal quotation marks and citation
omitted).
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Johnson also challenges the district court’s determination
that he managed or supervised three codefendants and one
anonymous buyer. According to the government, Johnson
“directed Prailow and Gage in regard to obtaining PCP from
Johnson” because Johnson told Prailow where to meet him
once and demanded that Gage come alone to their meetings.
Government Br. 53–54. But this reveals nothing more than a
seller setting the terms of sale. See United States v. Slade, 631
F.3d 185, 191 (4th Cir. 2011) (reversing role enhancement for
supplier who never “exercised any supervisory responsibility
over [those he supplied]”).
In imposing the role enhancement, the district court also
referenced Tabron and a would-be buyer, but nothing in the
record demonstrates Johnson’s control over either. Johnson
preferred not to interact with Tabron, S.A. 163, and his only
known contact with the potential buyer was to warn him against
texting in uncoded language, S.A. 99.
Of course we must “give due deference to the district
court’s application of the [G]uidelines to the facts.” United
States v. Kim, 23 F.3d 513, 517 (D.C. Cir. 1994) (quoting 18
U.S.C. § 3742(e)). But even where, as here, “the district court
reached its decision” with “care,” we will be “constrained to
[dis]agree” if “the facts simply do not support the [district
court’s] conclusion.” United States v. Tann, 532 F.3d 868, 875
(D.C. Cir. 2008). This is just such a case.
III.
We affirm the district court’s calculation of the base
offense level and its application of the credible-threat
enhancement. We reverse the district court’s application of the
role enhancement and remand for resentencing.
So ordered.