United States v. Johnson

638 F. App'x 514
CourtCourt of Appeals for the Seventh Circuit
DecidedFebruary 16, 2016
DocketNo. 15-1161
StatusPublished

This text of 638 F. App'x 514 (United States v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh 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. Johnson, 638 F. App'x 514 (7th Cir. 2016).

Opinion

ORDER

Mantrell Johnson pleaded guilty to possessing crack cocaine with intent to distribute and using a cell phone to commit that offense. See 21 U.S.C. §§ 841(a)(1), 843(b). He initially told authorities that he had purchased crack cocaine for resale weekly between 2004 and 2009, but by the time of sentencing he had recanted that testimony and argued that he should be held accountable only for two specific transactions in 2008. The district court found Johnson’s recanted testimony sufficient to establish—for purposes of its analysis under 18 U.S.C. § 3553(a)—that he [516]*516had engaged in “significant and serious” drag dealing. On appeal, Johnson challenges the procedural and substantive reasonableness of his above-Guidelines 180-month sentence. We affirm.

In August 2010, Chicago police arrested Johnson for violating Illinois law by being a felon in possession of a firearm with a defaced serial number. Johnson then provided sworn testimony supporting two state search-warrant applications, including one targeting a drug dealer named Ed White, who Johnson claimed to have seen with a firearm on multiple occasions. Police did, in fact, uncover a handgun during a search of White’s home, so White was arrested on a state firearm charge. Almost a year later, Johnson signed an affidavit recanting his earlier statement, and this recantation led to the charges against White being dismissed. Following a bench trial in 2013, Johnson was sentenced to 5 years’ imprisonment in his state case.

While his state case was pending, Johnson was charged in federal court with possessing with intent to distribute 63 grams of crack cocaine that he had obtained from Isaiah Hicks in May 2008, as well as two counts of using a cell phone to commit that offense. See 21 U.S.C. §§ 841(a)(1), 843(b). In a post-arrest statement, Johnson explained that Hicks had been introduced to him by Ed White, whom he identified as his regular supplier, and that he had bought crack cocaine from Hicks on two occasions when he was unable to reach White. Johnson estimated that he purchased approximately 13 kilograms of crack cocaine from White between 2004 and 2009, based on average weekly purchases during that time of 63 grams.

Johnson repeated his claims about purchasing drags from White in a subsequent proffer interview and in testimony before a grand jury. During his grand jury testimony, Johnson also recanted his earlier recantation of his statement about seeing White with a gun; he now stated that he had seen White with a gun after all. White had a reputation for violence, Johnson explained, and had intimidated him into falsely recanting his statements in support of the state search-warrant applications.

The government prepared a draft plea agreement recommending that the 13 kilograms of crack cocaine Johnson had admitted to purchasing from White count as relevant conduct to his conviction for purchasing 63 grams of the drag from Hicks in May 2008. Remarkably, six months later Johnson again changed his story. At a status hearing, he testified this time that he had lied to the grand jury about purchasing crack cocaine from White in order to make himself more important in the government’s eyes and, in the process, secure a more favorable plea deal. A year after that, Johnson pleaded guilty to reselling the 63 grams of crack cocaine he had purchased from Hicks in May 2008, and also to calling Hicks twice to facilitate that transaction.

A probation officer calculated a Guidelines.range of 235 to 293 months, based on a total offense level of 35 and a criminal-history category of IV. The offense level was boosted considerably by the inclusion of the 13 kilograms of crack cocaine as relevant conduct. Johnson objected, arguing that his inconsistent testimony was insufficient to establish by a preponderance of the evidence how much cocaine he had purchased from White.

The district court rejected the probation officer’s relevant conduct finding, concluding that the evidence was sufficient to show that Johnson had purchased crack cocaine from White but insufficiently precise to establish the quantity of those purchases for purposes of relevant conduct. Thus, the court recalculated a Guidelines [517]*517range of 92 to 115 months’ imprisonment. And the court sentenced Johnson well above the range to 180 months for the possession count and 48-month concurrent sentences for each of the cell phone counts. The court justified its above-Guidelines sentence as necessary to punish Johnson for the additional purchases he had made from White and for his repeated efforts to manipulate the judicial system.

On appeal Johnson presents two procedural arguments, asserting first that the district court based its above-Guidelines sentence on unreliable evidence. His recanted statements, he maintains, were insufficiently reliable to support the probation officer’s proposed relevant-conduct finding. As long as he is not regarded as a reliable witness, he says, then “his statements should not be credited either for the purpose of § 3553(a) or U.S.S.G. § 2D1.1 and § 1B1.3.”

Because a factfinder may accept some parts of a witness’s testimony while rejecting other parts, see Whitehead v. Bond, 680 F.3d 919, 926 (7th Cir.2012), the court was entitled to accept Johnson’s pri- or testimony that he purchased crack cocaine fi’om White while finding his testimony about the precise quantities unreliable. Moreover, the court’s conclusion that Johnson purchased some crack cocaine from White was partially supported by corroborating evidence introduced at the sentencing hearing, which showed that (1) White had supplied Hicks with powder cocaine, (2) Hicks sold drugs to Johnson, (3) Johnson purchased crack cocaine in 63-gram quantities, and (4) White had convinced Johnson to recant his testimony in White’s state case. This corroborating evidence did not establish that Johnson purchased kilograms of crack cocaine from White, but it did provide a reasonable basis for the court to credit part of Johnson’s recanted testimony.

Johnson also argues that the district court failed to justify the need for a sentence 65 months above the high end of the Guidelines range. He points to the court’s acknowledgment that it could hot estimate the amount of crack cocaine Johnson had resold over the years:

[Tjhere is sufficient evidence in his statement to say that he was doing other drug sales, and I just don’t know what those amounts are. I don’t know what they are. It may be it was 63 grams per week. But with the evidence that I’ve been presented, I don’t think there’s enough to corroborate it..
I do think there’s enough to vary from the guideline sentence to increase the sentence for that drug dealing and not to give him a benefit for lying to the grand jury or to the Court and to the agents.

As Johnson sees it, the court’s finding that he had bought some unquantifiable amount of drugs from White is so speculative and imprecise that it could not have justified a sentence nearly 50% above the top of the Guidelines range.

The district court did not err in citing these additional drug sales as one reason to impose an above-Guidelines sentence.

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Kimbrough v. United States
552 U.S. 85 (Supreme Court, 2007)
United States v. Fraser
647 F.3d 1242 (Tenth Circuit, 2011)
Whitehead v. Bond
680 F.3d 919 (Seventh Circuit, 2012)
United States v. Jeanette Grigsby
692 F.3d 778 (Seventh Circuit, 2012)
United States v. Willis
523 F.3d 762 (Seventh Circuit, 2008)

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Bluebook (online)
638 F. App'x 514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-ca7-2016.