United States v. Johnson (Timothy)

• Court: Court of Appeals for the Tenth Circuit
• Decided: February 28, 2000
• Docket: 99-6222
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS FEB 28 2000 TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 99-6222 v. (W.D. Oklahoma) TIMOTHY SHAUN JOHNSON, (D.C. No. CV-97-683-C)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, ANDERSON, and BRISCOE, Circuit Judges.

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

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Timothy Shaun Johnson seeks a certificate of appealability to appeal the

district court’s partial denial of his 28 U.S.C. § 2255 motion. A jury convicted

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Johnson of one count of conspiracy to distribute cocaine powder and/or cocaine

base in violation of 21 U.S.C. §§ 841(a), 846; twelve counts of distribution of

cocaine base in violation of 21 U.S.C. § 841(a)(1); three counts of aiding and

abetting interstate travel in aid of racketeering in violation of 18 U.S.C. §§ 2,

1952(a)(3); and one count of knowingly using or carrying a firearm during a drug

trafficking crime in violation of 18 U.S.C. § 924(c). Johnson was sentenced to

410 months on the conspiracy and drug related counts and a consecutive 60

months for the section 924(c) violation. We affirmed his convictions and

sentence. See United States v. Johnson, No. 94-6425, 1995 WL 678514 (10th Cir.

Nov. 15, 1995).

On April 24, 1997, Johnson filed a motion pursuant to 28 U.S.C. § 2255

attacking both his conviction and sentence on four grounds: (1) the conviction

and sentence on Count 19 (using or carrying a firearm) were invalid in light of

Bailey v. United States, 516 U.S. 137 (1995), (2) the relevant conduct attributed

to Johnson for sentencing purposes was not reasonably foreseeable, (3) the district

court erred in relying on the testimony of drug addicts to establish the amount of

drugs attributable to Johnson for sentencing purposes, and (4) Johnson was denied

effective assistance of trial counsel because counsel failed to call alibi witnesses,

to request a unanimous verdict, or to request a jury instruction on drug addict

testimony.

-2- In an amended order, the district court granted Johnson’s motion with

respect to Count 19, and vacated the firearm conviction and related sentence; held

that claims 2 and 3 were procedurally barred because Johnson did not raise them

on direct appeal; and, as to claim 4, held that trial counsel’s performance was not

deficient and did not prejudice Johnson. The court declined to resentence

Johnson, resulting in a remaining sentence (after vacating that portion relating to

Count 19) of 410 months.

Johnson appeals on the sole ground that the district court should have

resentenced him, thus relieving him of the procedural bar to his second and third

claims, set out above, and allowing him to pursue the substance of those matters

during resentencing. Essentially, Johnson argues that, under the “sentencing

package” doctrine, when the district court vacates a conviction and its related

sentence on one count, it must conduct resentencing on the entire case. See

Appellant’s Br. at 7. We disagree.

A district court possesses authority to resentence a defendant after vacating

a section 924(c) conviction under Bailey. See United States v. Easterling, 157

F.3d 1220, 1224 (10th Cir. 1998) (“holding that, on resentencing, a district court

is entitled to revisit a petitioner’s entire sentence, not just the challenged portion

of that sentence”); United States v. Mendoza, 118 F.3d 707, 710 (10th Cir. 1997)

(“district court possessed authority under § 2255 to resentence defendant on the

-3- [related] conspiracy conviction, after having vacated the § 924(c) conviction and

sentence”). However, that authority is discretionary, not mandatory. See United

States v. Pearce, 146 F.3d 771, 775 (10th Cir. 1998) (citing 29 U.S.C. § 2255).

After deleting part of Johnson’s sentence, the district court noted its

discretionary authority to recompute Johnson’s entire sentence but found that the

remaining “sentence originally imposed is more than sufficient to reflect the

seriousness of the offense conduct and satisfy the goals of the Sentencing Reform

Act. In the absence of authority mandating resentencing, the Court instead elects

to leave the 410-month sentence in effect, without recomputation or

resentencing.” United States v. Johnson, No. CR-94-64-C, slip op. at 2 (W.D.

Okla. May 13, 1999) (Order). Johnson advances no persuasive reason in support

of an argument that the court abused its discretionary authority, and we conclude

that it did not. Accordingly, Johnson’s other claims relating to alleged errors in

his original sentencing calculation remain procedurally barred.

For the reasons stated above, because Johnson has not “made a substantial

showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), we

DENY the request for a certificate of appealability and DISMISS the appeal.

ENTERED FOR THE COURT

Stephen H. Anderson Circuit Judge

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