United States v. Johnny Johnson

702 F. App'x 815
CourtCourt of Appeals for the Eleventh Circuit
DecidedJuly 11, 2017
Docket16-10875 Non-Argument Calendar
StatusUnpublished

This text of 702 F. App'x 815 (United States v. Johnny Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnny Johnson, 702 F. App'x 815 (11th Cir. 2017).

Opinion

PER CURIAM:

Johnny L. Johnson appeals the revocation of his supervised release and the district court’s imposition of a 51-month sentence. On appeal, Johnson argues that the district court erred by failing to compel the government to reveal and produce a confidential informant for examination. Johnson further argues that his sentence was procedurally unreasonable because the district court miscalculated his guideline range by determining the class of his original offense based on the law at the time of his original sentencing rather than at the time of the revocation of his supervised release. Johnson also argues that his sentence was substantively unreasonable because the district court failed to account for the changes in the law over time since his original sentencing.

I.

We review a district court’s ruling that the government need not disclose the identity of a confidential informant for abuse of discretion. United States v. Flores, 572 F.3d 1254, 1265 (11th Cir. 2009).

The government’s privilege to withhold the identity of a confidential informant is limited. Id. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. Id. We have held that this inquiry principally involves consideration of three factors: (1) the extent of the informant’s participation in the criminal activity; (2) the directness of the relationship between the defendant’s asserted defense and the probable testimony of the informant; and (3) the government’s interest in nondisclosure. Id. The government’s interest may be proven by showing that disclosure might endanger the informant or other investigations. Id. The burden is on the appellant to show that the informant’s testimony would significantly aid in establishing an asserted defense. United States v. Gutierrez, 931 F.2d 1482, 1491 (11th Cir. 1991). Mere conjecture about the possible relevance of the testimony is insufficient to compel disclosure. Id.

In Roviaro, the Supreme Court explained that “once the identity of an informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.” Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957). We clarified that the statement must not be read out of context, and that the scope of the privilege was governed by its underlying purpose of recognizing the obligation of citizens to communicate their knowledge of the commission of crimes to law enforcement, and preserving their anonymity encourages them to perform that obligation. See United States v. Tenorio-Angel, 756 F.2d 1505, 1510 (11th Cir. 1985). We concluded that the privilege was still applicable where the confidential informant told the defendant his name. Id. We further noted that the “Roviaro Court did not intend for the existence of the government’s privilege to depend upon the fortuity of whether or not the confidential informant introduced himself or herself to the defendant.” Id.

*817 The district court did not abuse its discretion by declining to require the government produce the confidential informant. Johnson failed to demonstrate that the confidential informant’s testimony would significantly aid in establishing an asserted defense. Johnson’s assertions that the initial search may have been insufficient and the confidential informant may have produced the cocaine are speculative, and speculation is insufficient to compel disclosure. Gutierrez, 931 F.2d at 1491. Lastly, the brief visibility of the informant in a produced video did not waive the government’s privilege.

II.

We review for reasonableness the sentence imposed by the district court upon the revocation of supervised release. United States v. Vandergrift, 754 F.3d 1303, 1307 (11th Cir. 2014). When reviewing reasonableness, we apply a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

The guideline range for a sentence imposed after a violation of supervised release is based on the grade of the violation, the defendant’s criminal history at the time of his original sentencing, and the class of his original offense.. U.S.S.G. § 7B1.4(a). Violation of a federal, state, or local offense punishable by a term of imprisonment exceeding one year that is a controlled substance offense constitutes a grade A violation. Id, § 7Bl.l(a)(l). A felony for which the authorized term of imprisonment is life is a class A felony. 18 U.S.C. § 3559(a)(1). A felony for which the authorized term of imprisonment is 25 years or more is a class B felony.. Id. § 3559(a)(2). A grade A violation of supervised release imposed pursuant to a class A felony with a criminal history category of VI results in a guideline range of 51 to 63 months’ imprisonment. U.S.S.G. § 7B1.4(a). A grade A violation of supervised release imposed pursuant to a class B felony with a criminal history category of VI results in a guideline range of 33 to 41 months’ imprisonment. Id,

The Fair Sentencing Act of 2010 raised the amount of cocaine base required to qualify for a maximum sentence of life imprisonment from 60 grams to 280 grams. See Fair Sentencing Act of 2010, PL 111-220, August 3, 2010. Prior to the Fair Sentencing Act, possession with intent to distribute 50 grams of cocaine base was punishable by a term of imprisonment not less than 10 years and not more than life. 21 U.S.C. § 841(b)(1)(A)(iii) (1997). After the passage of the Fair Sentencing Act, possession with intent to distribute 280 grams or more of cocaine base is punishable by a term of imprisonment not less than 10 years and not more than life. 21 U.S.C. § 841(b)(l)(A)(iii). Possession with intent to distribute 28 grams or more of cocaine base is punishable by a term of imprisonment not less than 5 years and no more than 40 years. 21 U.S.C. § 841(b)(l)(B)(iii).

Post-supervised release revocation penalties relate back to the original offense. See Johnson v. United States, 529 U.S. 694, 701, 120 S.Ct. 1795, 146 L.Ed.2d 727 (2000).

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Related

United States v. John Windell Clay
483 F.3d 739 (Eleventh Circuit, 2007)
United States v. William Herman Dorman
488 F.3d 936 (Eleventh Circuit, 2007)
United States v. Flores
572 F.3d 1254 (Eleventh Circuit, 2009)
United States v. Langston
590 F.3d 1226 (Eleventh Circuit, 2009)
Roviaro v. United States
353 U.S. 53 (Supreme Court, 1957)
Johnson v. United States
529 U.S. 694 (Supreme Court, 2000)
Rita v. United States
551 U.S. 338 (Supreme Court, 2007)
Gall v. United States
552 U.S. 38 (Supreme Court, 2007)
United States v. Tome
611 F.3d 1371 (Eleventh Circuit, 2010)
United States v. Irey
612 F.3d 1160 (Eleventh Circuit, 2010)
United States v. Cesar Tenorio-Angel
756 F.2d 1505 (Eleventh Circuit, 1985)
United States v. Gregory Randolph Berry
701 F.3d 374 (Eleventh Circuit, 2012)
United States v. Walter Henry Vandergrift, Jr.
754 F.3d 1303 (Eleventh Circuit, 2014)

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Bluebook (online)
702 F. App'x 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnny-johnson-ca11-2017.