United States v. Johnson

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS APR 27 2000 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-3225 (D.C. No. 98-CR-10124-WEB) TOMMIE L. JOHNSON, (D. Kan.)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before TACHA, McKAY, and ANDERSON, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.

Tommie L. Johnson was convicted by a jury of one count of possession

with intent to distribute cocaine base in violation of 21 U.S.C. § 841.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. At sentencing, the district court found him to be a career offender under USSG

§ 4B1.1 and determined a guideline range of 262 to 327 months’ imprisonment.

The district court sentenced him to 262 months. Johnson appeals.

Johnson’s counsel has filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and has requested leave to withdraw because he believes the

appeal to be frivolous. In his Anders brief, counsel raised three issues that he

said Johnson asked him to raise: (1) there is insufficient evidence to support the

conviction; (2) the trial court should have departed downward; and (3) the court

erred in finding him a career offender. Johnson filed a response to the Anders

brief requesting that the Anders brief be withdrawn and that his pro se brief be

substituted. In his brief, Johnson challenges only the district court’s

classification of him as a career offender.

We have reviewed the record, and we agree that there is sufficient evidence

to support the conviction. We also agree that there is no merit to the argument

that the district court should have departed downward; we do not have jurisdiction

to review a district court’s discretionary decision not to depart. See Untied States

v. Fagan, 162 F.3d 1280, 1282 (10th Cir. 1998).

With respect to Johnson’s status as a career offender, § 4B1.1 provides in

relevant part that to be determined to be a career offender, a defendant must have

two prior felony convictions for either a crime of violence or a controlled

-2- substance offense. He contends that the district court erred by not making any

findings regarding which of his prior crimes qualified him as a career offender.

He also apparently contends that he did not have two prior felonies because the

presentence report expressly designated only one–for “felony theft”–as a felony.

Because Johnson failed to raise this issue in the district court, we review only for

plain error. See United States v. Lindsay, 184 F.3d 1138, 1142 (10th Cir.),

cert. denied, 120 S. Ct. 438 (1999).

A “prior felony conviction” under § 4B1.1 is, inter alia, any prior adult

conviction punishable by more than one year in prison regardless of whether the

offense is specifically designated as a felony. See USSG § 4B1.2, comment.

(n.1). The presentence report identified as past convictions three burglaries that

qualify as felony convictions for crimes of violence because the sentences for

each exceeded one year and they were burglaries of residences, see § 4B1.2(a).

Additionally, in sentencing Johnson, the district court determined that the

presentence report, which expressly stated that Johnson’s residential burglaries

were prior felony convictions under § 4B1.1, was accurate. The district court did

not err in finding Johnson to be a career offender.

-3- AFFIRMED. Counsel’s motion to withdraw is GRANTED.

Entered for the Court

Monroe G. McKay Circuit Judge

-4-