United States v. Marcus Johnson

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 23, 2014
Decided May 23, 2014
Before
ANN CLAIRE WILLIAMS, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 13-2895
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 3:12CR00083-002
MARCUS JOHNSON, Barbara B. Crabb,
Defendant-Appellant. Judge.
ORDER
Marcus Johnson pleaded guilty to possessing with intent to deliver cocaine,
see 21 U.S.C. § 841(a)(1), after police discovered cocaine in his pocket while arresting
him as a suspect in a pistol-whipping and shooting, see United States v. Howard, 729 F.3d
655, 656–57 (7th Cir. 2013). The district court then determined that Johnson was a career
offender, see U.S.S.G. § 4B1.1, and sentenced him to 150 months’ imprisonment
consecutive to any term of imprisonment that he might receive on charges pending in
state court. Johnson’s appointed lawyer has concluded that the appeal is frivolous and
seeks to withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Johnson has not
accepted our invitation to respond to counsel’s motion. See CIR. R. 51(b). Counsel has
No. 13-2895 Page 2
submitted a brief that explains the nature of the case and addresses the issues that a
case of this kind might be expected to involve. Because the analysis in the brief appears
to be thorough, we limit our review to the subjects that counsel has discussed. United
States v. Bey, No. 13-1163, 2014 WL 1389090, at *2 (7th Cir. Apr. 10, 2014); United States v.
Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
Counsel informs us that Johnson does not wish to challenge his guilty plea, so
counsel properly forgoes discussing the voluntariness of the plea. See United States v.
Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671 (7th
Cir. 2002).
Counsel first considers whether Johnson could argue that the district court
misapplied the career-offender designation. See U.S.S.G. § 4B1.1(a). A defendant
qualifies as a career offender under § 4B1.1(a), if for instance he has at least two prior
felony convictions for crimes of violence. A crime of violence is defined as an offense
“punishable by imprisonment for a term exceeding one year, that . . . has as an element
the use, attempted use, or threatened use of physical force against the person of
another.” U.S.S.G. § 4B1.2(a)(1). Here, the district court determined that Johnson had
two qualifying convictions: battery by prisoners, WIS. STAT. § 940.20(1) (for intentionally
causing bodily harm to another inmate without the other’s consent) and substantial
battery, WIS. STAT. § 940.19(2) (for causing substantial bodily harm to another through
an act intended to cause bodily harm). Because each offense carried a sentence of
eighteen months and required that the defendant intentionally cause bodily harm,
see United States v. Peters, 462 F.3d 716, 719–20 (7th Cir. 2006), counsel properly
concludes that a challenge to the career-offender designation would be frivolous.
Counsel next considers whether Johnson could challenge the term of
imprisonment as unreasonable, but properly concludes that such a challenge would be
frivolous. The 150-month term is below his guidelines’ range of 151 to 188 months and
thus presumptively reasonable. See United States v. Poetz, 582 F.3d 835, 837 (7th Cir.
2009); United States v. Liddell, 543 F.3d 877, 885 (7th Cir. 2008). Counsel has not identified
any consideration rebutting that presumption, nor can we. The court considered the
relevant 18 U.S.C. § 3553(a) factors—including the nature and circumstances of the
offense (especially Johnson’s attempt to destroy evidence by ingesting it while under
arrest and possession of a gun provided by a “straw purchaser”) and his history and
characteristics (particularly his past and ongoing violent behavior), as well as the need
to protect the community and achieve sentencing parity with similarly-situated
offenders.
No. 13-2895 Page 3
Finally counsel briefly discusses whether Johnson could argue that the district
judge failed to justify why she imposed a consecutive sentence (as Johnson had sought a
sentence that was concurrent). See Howard, 729 F.3d at 665; United States v. Villegas-
Miranda, 579 F.3d 798, 802–04 (7th Cir. 2009). But we agree with counsel that it would be
frivolous to press this argument on appeal. First, this argument was not well-developed
in the district court—Johnson asserted only that he should receive a concurrent sentence
because he already was facing a “lengthy sentence”—and thus did not require a
response from the district judge. See United States v. Young, 590 F.3d 467, 474 (7th Cir.
2009); Villegas-Miranda, 579 F.3d at 801–02. Moreover, the judge’s rejection of Johnson’s
request can be construed as an attempt to align Johnson’s sentence with that of his
co-defendant, who had received a consecutive sentence. See Howard, 729 F.3d at 665.
Accordingly, we GRANT counsel’s motion to withdraw and DISMISS the appeal.