United States v. Kiunte Johnson

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0306n.06
No. 17-6131
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 19, 2018
UNITED STATES OF AMERICA, ) DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
KIUNTE JOHNSON, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.
KETHLEDGE, Circuit Judge. Kiunte Johnson pled guilty to being a felon in possession
of a firearm and ammunition. He appeals his sentence, arguing that the district court miscalculated
his Sentencing Guidelines range by erroneously crediting an (allegedly) unreliable witness. We
affirm.
In February 2016, a man robbed Nicola Gray at gunpoint. According to Gray, the robber
followed her to her car as she was leaving a Memphis gas station, brandished his gun, demanded
her money, and took her purse, which contained $9,800. [R. 73 PID at 177-87.] When Gray
chased after him, he shot at her and missed. [Id.] She chased him in a car and memorized his
license plate. Then she called the police, gave his plate number, and identified Johnson by his
photograph the next day. [Id. at PID 184-87, 221-22.] Investigators later tested a shell casing
found at the gas station and determined that it had come from Johnson’s gun. [Id. at 223.] Federal
prosecutors thereafter charged Johnson with being a felon in possession of a firearm and
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United States v. Johnson
ammunition. See 18 U.S.C. § 922(g). Johnson pled guilty to those charges, admitting among other
things that he possessed the shell casing found at the scene of the robbery.
The district court later conducted a sentencing hearing at which Gray testified. She
described the robbery and again identified Johnson as the robber, stating that she “could never
forget that face.” [R.73 at PID 187.] Gray also admitted that she uses illegal drugs, had worked
as a prostitute, and was facing state charges for conduct unrelated to this case. [Id. at 184-87; 221-
22.] Johnson did not testify, but his attorney suggested that Gray had previously stolen $9,800
from Johnson and that the incident “was reclamation of th[at] amount.” [Id. at 196.]
The district court found Gray credible and concluded—based on her testimony and the
shell casing—that Johnson had used the gun to rob her. Under the Sentencing Guidelines, if a
defendant convicted under § 922(g) uses the firearm “in connection with the commission . . . of
another offense,” the district court must increase his Guidelines range to the range associated with
attempt, solicitation, or conspiracy in respect to the connected offense. See U.S.S.G.
§ 2K2.1(c)(1)(A). The Guidelines cross referenced the range for robbery, which the court applied.
[Id. at 262-64.] The court also found that Johnson had failed to accept responsibility for the
robbery, and therefore denied him a reduction for acceptance of responsibility under U.S.S.G.
§ 3E1.1(a). [R. 73 at PID267-70.] The court sentenced Johnson to 120 months’ imprisonment,
the bottom of his Guidelines range and the statutory maximum for a felon-in-possession charge.
See 18 U.S.C. § 924(a)(2). [R.73 at 304.]
We review for clear error the district court’s finding that Johnson used his gun to rob Gray,
giving its credibility determination “great deference.” See United States v. Rios, 830 F.3d 403,
435-37 (6th Cir. 2016) (citation omitted). Witness testimony (if credible) is typically enough to
support a court’s factual finding. See United States v. Jeross, 521 F.3d 562, 570-71 (6th Cir. 2008).
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Here, Gray’s testimony was consistent with her original statement to police; she candidly admitted
unflattering details about herself; and Johnson offered no evidence that contradicted Gray’s
testimony or otherwise supported his theory that he was reclaiming money Gray had previously
stolen from him. Moreover, Johnson admitted he possessed the spent shell casing found at the gas
station that day. The record thus supports the district court’s finding.
Johnson contends that Gray was unreliable because she used drugs, was facing state
charges, and (according to Johnson) could not explain why she had $9,800 in cash on her that day.
But Gray testified that she was not high during the robbery or when she later reported it to police
(indeed she had no money to buy drugs then). Gray also testified that she was sober during
Johnson’s sentencing hearing. Nor did Gray’s pending state charges affect her credibility, because
the charges were unrelated to the robbery and the government offered her nothing in exchange for
her testimony. [R.73 at 195-98.] As to the money, Gray explained that her “sugar daddy” had
given her $13,000 a few days earlier, that she had spent some of the money on shoes and clothes,
and that she kept the rest on her person because she did not trust her housemates. [Id. at 203-05,
208-09.] Johnson offers nothing to rebut these explanations. Johnson therefore has not shown
that the district court clearly erred in relying on Gray’s testimony to find that he used the gun to
rob Gray.
Johnson also argues that the district court should have reduced his Guidelines’ offense level
for acceptance of responsibility. A defendant is ineligible for that reduction if he “falsely denies,
or frivolously contests, relevant conduct that the court determines to be true[.]” See United States
v. Bacon, 617 F.3d 452, 458 (6th Cir. 2010) (citation omitted). Here, Johnson denied that he
robbed Gray—conduct that was relevant to his sentence, the district court found in fact occurred,
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and Johnson “must have known . . . was wrong when he did it.” Id. at 459. Hence the court
correctly found that he was ineligible for the reduction.
The district court’s judgment is affirmed.
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