United States v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
APR 27 2000
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-3225
(D.C. No. 98-CR-10124-WEB)
TOMMIE L. JOHNSON, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before TACHA, McKAY, and ANDERSON, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Tommie L. Johnson was convicted by a jury of one count of possession
with intent to distribute cocaine base in violation of 21 U.S.C. § 841.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
At sentencing, the district court found him to be a career offender under USSG
§ 4B1.1 and determined a guideline range of 262 to 327 months’ imprisonment.
The district court sentenced him to 262 months. Johnson appeals.
Johnson’s counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and has requested leave to withdraw because he believes the
appeal to be frivolous. In his Anders brief, counsel raised three issues that he
said Johnson asked him to raise: (1) there is insufficient evidence to support the
conviction; (2) the trial court should have departed downward; and (3) the court
erred in finding him a career offender. Johnson filed a response to the Anders
brief requesting that the Anders brief be withdrawn and that his pro se brief be
substituted. In his brief, Johnson challenges only the district court’s
classification of him as a career offender.
We have reviewed the record, and we agree that there is sufficient evidence
to support the conviction. We also agree that there is no merit to the argument
that the district court should have departed downward; we do not have jurisdiction
to review a district court’s discretionary decision not to depart. See Untied States
v. Fagan, 162 F.3d 1280, 1282 (10th Cir. 1998).
With respect to Johnson’s status as a career offender, § 4B1.1 provides in
relevant part that to be determined to be a career offender, a defendant must have
two prior felony convictions for either a crime of violence or a controlled
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substance offense. He contends that the district court erred by not making any
findings regarding which of his prior crimes qualified him as a career offender.
He also apparently contends that he did not have two prior felonies because the
presentence report expressly designated only one–for “felony theft”–as a felony.
Because Johnson failed to raise this issue in the district court, we review only for
plain error. See United States v. Lindsay, 184 F.3d 1138, 1142 (10th Cir.),
cert. denied, 120 S. Ct. 438 (1999).
A “prior felony conviction” under § 4B1.1 is, inter alia, any prior adult
conviction punishable by more than one year in prison regardless of whether the
offense is specifically designated as a felony. See USSG § 4B1.2, comment.
(n.1). The presentence report identified as past convictions three burglaries that
qualify as felony convictions for crimes of violence because the sentences for
each exceeded one year and they were burglaries of residences, see § 4B1.2(a).
Additionally, in sentencing Johnson, the district court determined that the
presentence report, which expressly stated that Johnson’s residential burglaries
were prior felony convictions under § 4B1.1, was accurate. The district court did
not err in finding Johnson to be a career offender.
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AFFIRMED. Counsel’s motion to withdraw is GRANTED.
Entered for the Court
Monroe G. McKay
Circuit Judge
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