United States v. Rashaud Johnson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 11, 2010
No. 09-16397 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00315-CR-18-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RASHAUD JOHNSON,
a.k.a. Rocky,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(June 11, 2010)
Before BLACK, HULL and PRYOR, Circuit Judges.
PER CURIAM:
After pleading guilty, Rashaud Johnson appeals his 142-month sentence for
conspiring to possess with intent to distribute cocaine, in violation of 21 U.S.C.
§§ 841(a) and 846. Johnson argues that the district court clearly erred in denying
his request for a two-level minor role reduction, pursuant to U.S.S.G. § 3B1.2(b).
After review, we affirm.1
A defendant may receive a two-level reduction in his offense level if he was
a minor participant in the criminal activity. U.S.S.G. § 3B1.2(b). A defendant is a
minor participant if he is less culpable than most other participants, but his role
could not be described as minimal. U.S.S.G. §3B1.2 cmt. n.5. The defendant has
the burden of establishing his role in the offense by a preponderance of the
evidence. United States v. DeVaron, 175 F.3d 930, 939 (11th Cir. 1999) (en banc).
The determination of whether to apply a minor role reduction “is heavily
dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 cmt. n.3(c).
“Two principles guide the district court’s consideration: (1) the court must
compare the defendant’s role in the offense with the relevant conduct attributed to
him in calculating his base offense level; and (2) the court may compare the
defendant’s conduct to that of other participants involved in the offense.” United
States v. Alvarez-Coria, 447 F.3d 1340, 1343 (11th Cir. 2006). When the relevant
conduct attributed to defendant is the same as his actual conduct, “he cannot prove
1
We review for clear error a district court’s determination as to a defendant’s role in the
offense. United States v. DeVaron, 175 F.3d 930, 937 (11th Cir. 1999) (en banc).
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that he is entitled to a minor-role adjustment simply by pointing to some broader
scheme for which he was not held accountable.” Id.; see also De Varon, 175 F.3d
at 942-43 (concluding that“when a drug courier’s relevant conduct is limited to
[his] own act of importation, a district court may legitimately conclude that the
courier played an important or essential role in the importation of those drugs”).
As to the second prong, the district court is permitted to “measure the
defendant’s conduct against that of other participants” but only “where the record
evidence is sufficient.” De Varon, F.3d at 934. Furthermore, “[t]he fact that a
defendant’s role may be less than that of other participants engaged in the relevant
conduct may not be dispositive of role in the offense, since it is possible that none
are minor or minimal participants.” Id. at 944.
Here, the district court did not clearly err in denying Johnson ’s request for a
minor role reduction. Johnson’s relevant conduct matched his actual conduct; that
is, he was held accountable for only the amount of cocaine he undisputedly
purchased or attempted to purchase from Telly Petty.2 Thus, Johnson’s argument
that he played no role in Petty’s larger drug trafficking operation is unavailing.
Johnson played an important role in his own conspiracy with Petty to purchase
2
According to Johnson’s presentence investigation report, to which Johnson did not
object, Johnson purchased six ounces from Petty on fifteen separate occasions and attempted to
purchase 18 ounces (or a half-kilogram) on August 29, 2008, for a total of 108 ounces, or 3.06
kilograms of cocaine. This was the amount used to calculate Johnson’s base offense level.
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cocaine.3
AFFIRMED.
3
The conclusion statement in Johnson’s brief states that he seeks the “protection . . . of
Section 3553(a)’s mandate to impose a sentence ‘sufficient, but not greater than necessary’” and
contends that the “sentencing judge did not or could not independently evaluate whether the
sentence complies with 18 [U.S.C.] § 3553(a) . . . .” To the extent Johnson is arguing that his
sentence is procedurally unreasonable because the district court erred in refusing to award him
the minor role reduction, that argument is without merit for the reasons discussed. To the extent
Johnson attempts to argue that his sentence is unreasonable for other reasons, he has waived this
issue. See Greenbriar, Ltd. v. Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989) (declining to
consider issue identified in brief’s statement of the case, but not elaborated upon in argument on
the merits).
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