United States v. Kelvin Johnson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
____________________________
No. 13-12918
____________________________
D.C. Docket No. 1:11-cr-00012-WLS-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS JOHNSON,
Defendant-Appellant.
____________________________
No. 13-12920
____________________________
D.C. Docket No. 1:11-cr-00012-WLS-TQL-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KELVIN JOHNSON,
Defendant-Appellant.
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____________________________
Appeals from the United States District Court
for the Middle District of Georgia
____________________________
(March 12, 2015)
Before TJOFLAT and JILL PRYOR, Circuit Judges, and MOODY, * District
Judge.
PER CURIAM:
In this consolidated appeal, Carlos Johnson and Kelvin Johnson (collectively
the “Johnson brothers”) challenge their life sentences, which were imposed after
they both pleaded guilty to one count of conspiracy to possess with intent to
distribute cocaine and “crack cocaine,” in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A)(ii), (iii), 846. The Johnson brothers argue that their pleas were not
knowing and voluntary because the government withheld information prior to their
pleas that was later used to enhance their sentencing guidelines ranges. As such,
the Johnson brothers contend that the sentence appeal waivers contained within
their plea agreements no longer apply, and they may challenge on appeal the
district court’s decisions regarding the calculation of their guidelines ranges. The
*
Honorable James S. Moody, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.
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Johnson brothers also contend that both of their counsel were ineffective for failing
to impeach a witness during the sentencing hearing.
After careful review of the parties’ briefs and the relevant portions of the
record, and having had the benefit of oral argument, we affirm.
I. BACKGROUND
On March 9, 2011, a federal grand jury in the Middle District of Georgia
indicted the Johnson brothers along with seventeen other defendants for their
involvement in a large-scale drug operation in Southwest Georgia between 2008
and 2011. The Johnson brothers were arrested on March 16, 2011. On August 12,
2011, Carlos pleaded guilty pursuant to a plea agreement to one count of
conspiracy to possess with intent to distribute cocaine and “crack cocaine,” in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii), (iii), 846. 1 Following his
brother’s plea, Kelvin pleaded guilty pursuant to a plea agreement to the same
offense on August 17, 2011.
As part of their plea agreements, the Johnson brothers acknowledged that the
district court was not bound by any estimate of the advisory sentencing range that
they may have received from either their attorneys, the government, or the United
States Probation Office. The Johnson brothers also agreed that they would not be
permitted to withdraw their pleas on the basis that they received an estimate of the
1
Carlos also pleaded guilty to one forfeiture count, but he does not challenge that count
on appeal.
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advisory sentencing range that differed from the range computed by the Probation
Office and accepted by the district court as the correct advisory sentencing range.
The Johnson brothers averred that they understood that the district court would not
be able to compute an advisory guideline sentencing range until the Probation
Office prepared presentence investigation reports (“PSRs”). Finally, the Johnson
brothers agreed that after a sentence was imposed by the district court, they waived
their right to appeal that sentence unless certain enumerated exceptions were met.
The district court reviewed each of these provisions with the Johnson brothers and
confirmed that both understood these provisions.
After the Johnson brothers entered their guilty pleas, both entered into
cooperation agreements with the government to assist in ongoing criminal
investigations. The government sought release of the Johnson brothers prior to
sentencing to facilitate their cooperation, and the Johnson brothers were furloughed
for sixty days. After several continuances, sentencing was set for June 13, 2013.
Before the Johnson brothers were sentenced, the Probation Office prepared
several PSRs. The initial PSR filed by the Probation Office on October 27, 2011,
for Carlos calculated an adjusted total offense level of 39 and a criminal history
category of IV, which resulted in an advisory guideline range of 360 months’ to
life imprisonment. Similarly, Kelvin’s initial PSR filed on May 21, 2012,
calculated an adjusted total offense level of 39 and a criminal history category of
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III, which resulted in an advisory guideline range of 324 to 405 months’
imprisonment. On July 5, 2012, the Probation Office filed final PSRs for both
Kelvin and Carlos, which contained the same guidelines calculations as the initial
PSRs.
On June 10, 2013, the Probation Office filed revised final PSRs for the
Johnson brothers, which added a two-level enhancement for bribery of a law
enforcement officer in facilitation of the offense, increasing the Johnson brothers’
adjusted total offense levels to 41. The revision did not affect Carlos’s advisory
guideline range, but increased Kelvin’s advisory guideline range to 360 months’ to
life imprisonment. The Probation Office filed second revised final PSRs for the
Johnson brothers on June 11, 2013, which, in addition to the bribery enhancement,
reflected revocation of the Johnson brothers’ three-level reduction for acceptance
of responsibility due to illegal behavior while the Johnson brothers were
furloughed. Consequently, under the second revised final PSR, Carlos’s amended
adjusted total offense level was 43; with a criminal history category of IV, Carlos’s
amended advisory guideline range was life imprisonment. Kelvin’s amended
adjusted total offense level was also 43; with a criminal history category of III,
Kelvin’s amended advisory guideline range was life imprisonment.
At the sentencing hearing on June 13, 2013, counsel for both Carlos and
Kelvin objected to the two-level enhancement for bribery of a law enforcement
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officer and to the denial of the reduction for acceptance of responsibility. The
government produced three witnesses at the sentencing hearing in support of the
bribery enhancement and the denial of credit for acceptance of responsibility: (1)
William Franklin Green, a Drug Enforcement Agency Task Force Agent, (2)
Fredrick Harris, and (3) Stephanie Rogers. Kelvin Johnson also testified during
the sentencing hearing.
Agent Green testified that an individual named Jarrod Sims, who was
cooperating with the authorities, informed law enforcement that Robert Nicholson,
a member of the Pataula Drug Task Force, was selling information to the Johnson
brothers about drug investigations. Sims informed Agent Green that he acted as a
middleman to facilitate the transfer of information from Nicholson to the Johnson
brothers. According to Agent Green, this information came to light in 2010, well
before the Johnson brothers were arrested and entered their pleas. Nicholson was
later fired and prosecuted for his conduct. Nicholson entered a plea agreement in
2012, in which he agreed as a basis for the plea that he sold information through
Sims to the Johnson brothers. Agent Green also confirmed that the Johnson
brothers were released on furlough to aid the authorities in investigating dog
fighting in Alabama. At no time were the Johnson brothers requested to assist the
authorities by buying or selling drugs.
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Next, Fredrick Harris, who was arrested about a year after the Johnson
brothers for his involvement in the conspiracy, testified that he and a cousin of the
Johnson brothers purchased drugs on nine or ten occasions from the Johnson
brothers while they were on furlough cooperating with the government. He also
testified that he and his brother purchased drugs from Carlos on eight or nine
occasions while Carlos was detained by calling him on a cell phone. According to
Harris, Carlos then directed Stephanie Rogers to deliver the drugs on his behalf.
Stephanie Rogers, the Johnson brothers’ aunt, testified that she transported drugs
for Carlos while he was furloughed. She also stated that she delivered drugs to
Carlos and Kelvin in Alabama and that she was usually paid by Carlos, but she
admitted that on one occasion she was paid partially by Kelvin. She denied any
involvement with Fredrick Harris.
Finally, Kelvin testified. He denied participating in illegal activity while on
furlough. He explained that he gave Rogers money, but that it was not for drugs.
He also stated that Carlos did not participate in illegal activity while furloughed.
On cross examination, Kelvin admitted to using a cell phone while incarcerated.
After hearing the evidence, the district court overruled the objections,
accepted the guidelines calculations as presented in the second final revised PSRs,
and sentenced both Carlos and Kelvin to life imprisonment. This consolidated
appeal ensued.
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II. DISCUSSION
A. The Knowing and Voluntary Nature of the Pleas
The crux of this appeal is whether the Johnson brothers’ pleas were knowing
and voluntary. If they were knowing and voluntary, then their arguments
regarding the district court’s calculation of their guidelines range would be
precluded by the valid sentence appeal waivers contained in their plea agreements.2
The Johnson brothers argue that their pleas were not knowing and voluntary
because the government withheld information regarding their bribery of law
enforcement officer Robert Nicholson, which was later used to apply a two-level
enhancement in calculating their guidelines sentencing ranges.
Where, as here, a defendant fails to preserve a challenge to the voluntariness
of a guilty plea, we review only for plain error. 3 See United States v. Moriarty,
429 F.3d 1012, 1018-19 (11th Cir. 2005). Plain error exists if the defendant can
show (1) error, (2) that is plain, (3) affects substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of judicial proceedings. See
United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir. 2005). To establish
2
Namely, the Johnson brothers contend that the district court erred in applying the
two-level bribery enhancement and in denying credit for acceptance of responsibility.
3
The Johnson brothers could have challenged the voluntariness of their guilty pleas in the
district court by filing motions to withdraw their pleas.
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plain error regarding the voluntariness of a guilty plea, a defendant “must show a
reasonable probability that, but for the error, he would not have entered the plea.”
United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
“A plea of guilty cannot support a judgment of guilt unless it was voluntary
in a constitutional sense.” United States v. Brown, 117 F.3d 471, 476 (11th Cir.
1997) (citation and internal quotation marks omitted). In ensuring that a plea is
knowing and voluntary in the “constitutional sense,” the district court has an
obligation to establish that (1) the plea is free from coercion, (2) the defendant
understands the nature of the charges, and (3) the defendant understands the
consequences of his plea. See United States v. Hernandez-Fraire, 208 F.3d 945,
949 (11th Cir. 2000); see also Fed. R. Crim. P. 11(b)(2) (“Before accepting a plea
of guilty or nolo contendere, the court must address the defendant personally in
open court and determine that the plea is voluntary and did not result from force,
threats, or promises (other than promises in a plea agreement).”).
The Johnson brothers have failed to show that their pleas were not knowing
and voluntary. The plea agreements and a transcript of the change of plea hearing
demonstrate that the Johnson brothers both averred that their pleas were entered
free from coercion and that they understood the charges against them and the
nature of the constitutional rights they were waiving. The district court also
discussed with both Carlos and Kelvin the consequences of their pleas. Moreover,
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the Johnson brothers were both explicitly informed by the district court during the
change of plea hearing and by the plea agreements themselves that their guideline
ranges could be different than the ranges currently estimated by the government,
their attorneys, or the Probation Office.
Although the Johnson brothers contend that the government had an
obligation to inform them of all facts of which they were aware that could be used
to enhance their guidelines sentencing ranges, they offer no support for this
proposition. And, in fact, such an obligation would be overly burdensome on the
government and would undermine the goals of the plea bargaining process.
Cf. United States v. Ruiz, 536 U.S. 622, 631 (2002) (stating that “a constitutional
obligation to provide impeachment information during plea bargaining, prior to
entry of a guilty plea, could seriously interfere with the Government’s interest in
securing those guilty pleas that are factually justified, desired by defendants, and
help to secure the efficient administration of justice”). Regardless, even if the
government provided this information to the Johnson brothers, the government
would not have been able to identify or predict whether the Probation Office would
use the conduct in preparing the Johnson brothers’ PSRs. See United States v.
Behr, 93 F.3d 764, 766 (11th Cir. 1996).
More important, the government’s withholding of this information does not
affect the knowing and voluntary nature of the Johnson brothers’ pleas. First, the
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bribery information does not relate to their convictions. Rather, it only affects the
potential length of their sentences. Second, while “the more information the
defendant has, the more aware he is of the likely consequences of a plea, waiver, or
decision, and the wiser that decision will likely be[,] . . . the Constitution does not
require the prosecutor to share all useful information with the defendant.” Ruiz,
536 U.S. at 629. The Constitution requires only that a guilty plea be knowing and
voluntary; not that it be fully informed. Thus, we conclude that the Johnson
brothers’ pleas were knowing and voluntary.
Because the Johnson brothers’ pleas were knowing and voluntary, the
sentence appeal waivers contained within their plea agreements remain valid and
enforceable. Accordingly, the Johnson brothers may not challenge on appeal the
district court’s calculations regarding their guidelines ranges.
B. Ineffective Assistance of Counsel
The Johnson brothers also argue that their counsel were ineffective because
they failed to produce evidence to impeach Stephanie Rogers during the sentencing
hearing. Specifically, the Johnson brothers contend that counsel should have
produced the arrest records of T’Michael Jones, from whom Rogers claims to have
received drugs to transport to the Johnson brothers while they were furloughed.
According to the Johnson brothers, Jones’s arrest records would show that Jones
was incarcerated at the time of the alleged conduct and would therefore cast doubt
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upon Rogers’s credibility. Although the sentence appeal waivers executed by the
Johnson brothers do not preclude claims of ineffective assistance of counsel, we
will generally not review a claim of ineffective assistance of counsel raised on
direct appeal where the district court neither addressed the claim nor developed a
sufficient factual record. See United States v. Bender, 290 F.3d 1279, 1284 (11th
Cir. 2002). “If the record is sufficiently developed, however, this court will
consider an ineffective assistance of counsel claim on direct appeal.” Id. As to
this claim for ineffective assistance of counsel, the record is sufficiently developed.
In Strickland v. Washington, 466 U.S. 668, 687 (1984), the Supreme Court
set forth a two-part test for analyzing ineffective assistance of counsel claims:
First, the defendant must show that counsel’s performance was
deficient. This requires showing that counsel made errors so serious
that counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant must
show that the deficient performance prejudiced the defense. This
requires showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Strickland requires proof of both deficient performance and consequent prejudice.
Id. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim
. . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.”); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir.
1998) (“When applying Strickland, we are free to dispose of ineffectiveness claims
on either of its two grounds.” (internal quotation marks omitted)). “[C]ounsel is
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strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466
U.S. at 690.
As to the performance of Carlos’s counsel, he was not ineffective in failing
to impeach Rogers during the sentencing hearing. Even if the testimony of Rogers
was impugned, the testimony of Fredrick Harris directly implicated Carlos in
illegal activity while he was on furlough. In denying Carlos the reduction for
acceptance of responsibility, the district court specifically noted that it found the
testimony of Rogers and Harris credible despite their discrepancies, but it also
stated that Harris’s testimony alone implicated Carlos in the illegal activity. Thus,
because no reasonable probability exists that the outcome would have been
different for Carlos if his counsel impeached Rogers, his counsel was not
ineffective.
Similarly, Kelvin’s counsel was not ineffective in failing to impeach Rogers.
Kelvin’s counsel did not cross examine Rogers. Rather, Kelvin’s counsel argued
that the testimony of Rogers and Harris implicated only Carlos. Impeaching
Rogers’s testimony was not essential to that strategy. Also, Kelvin himself
testified and stated that he did not participate in illegal activity while on furlough.
Through Kelvin’s testimony, which contradicted that of Rogers’s, Kelvin’s counsel
attempted to impeach Rogers’s testimony, although not in the manner Kelvin
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alleges would have been most successful. This Court will not second guess the
reasonable strategic decisions of counsel, and counsel’s performance in this regard
was not deficient.
Kelvin also cannot establish that the failure to impeach Rogers resulted in
prejudice. First, Harris testified that he purchased drugs from both Johnson
brothers. Second, Kelvin admitted that he used a cell phone while incarcerated;
this behavior alone would have been sufficient to deny the reduction for
acceptance of responsibility. See 18 U.S.C. § 1791(d)(1)(F) (prohibiting the
possession of contraband, which includes a “phone or other device,” while in
prison). Therefore, even without the testimony of Rogers, the district court had
sufficient evidence on which to base its denial of the reduction for acceptance of
responsibility. Accordingly, Kelvin’s counsel was not ineffective.
III. CONCLUSION
The convictions and sentences of Carlos Johnson and Kelvin Johnson are
affirmed.
AFFIRMED.
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