United States v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-41387 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

STEVIE WAYNE JOHNSON,

Defendant-Appellant -------------------- Appeal from the United States District Court for the Eastern District of Texas USDC No. 9:99-CR-27-1 -------------------- July 30, 2002

Before JOLLY, PARKER, and DENNIS, Circuit Judges.

PER CURIAM:*

Stevie Wayne Johnson (Johnson) appeals his convictions and

sentences for conspiracy to distribute and possess with intent to

distribute cocaine and possession with intent to distribute cocaine

in violation of 21 U.S.C. §§ 841(a)(1), 846. He argues that the

district court’s application of United States Sentencing Guidelines

§ 2D1.1(c)(3) violated Apprendi v. New Jersey, 530 U.S. 466 (2000),

that the evidence was insufficient to sustain his convictions, and

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 that the district court erred in adjusting his offense level upward

under U.S.S.G. §§ 3B1.1(b) and 3C1.1.

Johnson’s Apprendi argument is without merit as we have held

that a sentencing court’s use of the Guidelines’ drug quantity

table to determine a defendant’s base offense level does not

violate Apprendi, even when the question of drug quantity has not

been submitted to jury, if the sentence imposed does not exceed the

statutory maximum under 21 U.S.C. § 841(b)(1)(C). See United

States v. McWaine, 290 F.3d 269 (5th Cir. 2002). As the jury

retains sole responsibility for determining the weight and

credibility of the evidence and because Johnson has failed to show

that the corroborated testimony of his co-conspirators was

incredible or otherwise insubstantial on its face, he has failed to

show that the evidence was insufficient to sustain his convictions.

See United States v. Casilla, 20 F.3d 600, 602 (5th Cir. 1994);

United States v. Gibson, 55 F.3d 173, 181 (5th Cir. 1995); United

States v. Hernandez, 962 F.2d 1152, 1157 (5th Cir. 1992). Finally,

Johnson has failed to show that the district court clearly erred in

adjusting his offense level upward under U.S.S.G. §§ 3B1.1(b) and

3C1.1. See United States v. Miranda, 248 F.3d 434, 446 (5th Cir.

2001), cert. denied, 122 S. Ct. 823 (2002); United States v.

Odiodio, 244 F.3d 398, 404 (5th Cir. 2001); United States v.

Ronning, 47 F.3d 710, 711 (5th Cir. 1995).

AFFIRMED.