United States v. Terrence Johnson

535 F. App'x 902
CourtCourt of Appeals for the Eleventh Circuit
DecidedSeptember 20, 2013
Docket12-14656
StatusUnpublished

This text of 535 F. App'x 902 (United States v. Terrence 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. Terrence Johnson, 535 F. App'x 902 (11th Cir. 2013).

Opinion

PER CURIAM:

After a guilty plea, Terrence Johnson appeals his conviction and sentence for conspiracy to possess with intent to distribute Oxycodone. For the first time on appeal, Johnson claims that the government breached the plea agreement when, at sentencing, it (1) refused to recommend a three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1 and (2) recommended a two-level enhancement for obstruction of justice under U.S.S.G. § 3C1.1. After oral argument, review of the record, and consideration of the parties’ briefs, we find no plain error and affirm.

I. BACKGROUND FACTS

A. Indictment

In November 2011, a grand jury returned a four-count indictment against Defendant Johnson, his brother Toriano Johnson (“Toriano”), and several other co-defendants. The indictment named Defendant Johnson only in Count 1 and Count 4, charging him with (1) conspiring to possess with intent to distribute cocaine and cocaine base (“crack”), in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 1), and (2) conspiring to possess with intent to distribute Oxycodone, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count 4).

B. Plea Agreement

In May 2012, Johnson entered into a plea agreement, in which he agreed to plead guilty to Count 4 (the Oxycodone conspiracy), and the government agreed to dismiss Count 1 (the cocaine conspiracy) after sentencing.

In Paragraph 6 of the plea agreement, the government further agreed to recommend (1) a total three-level reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, and (2) a sentence at the low end of the guidelines range, as that range is determined by the district court. The government would be excused from these obligations, however, if one of the following three exceptions applied: (1) if the defendant “fails or refuses to make a full, accurate and complete disclosure to the probation office of the circumstances surrounding the relevant offense conduct”; (2) “is found to have misrepresented facts to the government prior to entering into this plea agreement”; or (3) “commits any misconduct after entering into this plea agreement, including but not limited to committing a state or federal offense, violating any term of release, or making false statements or misrepresentations to any governmental entity or official.” 1

*904 Another provision in Defendant Johnson’s plea agreement authorized the government to inform the district court and the probation office “of all facts pertinent to the sentencing process, including all relevant information concerning the offenses committed, whether charged or not, as well as concerning the defendant and the defendant’s background,” subject to the other terms of the agreement. The government also reserved the right to “make any recommendation as to the quality and quantity of punishment,” subject “only to the express terms of any agreed-upon sentencing recommendations contained in this agreement.” The plea agreement contained a provision waiving Johnson’s right to appeal his sentence except in certain limited circumstances.

C. Plea Hearing

At the change-of-plea hearing, the government described the facts of Defendant Johnson’s Oxycodone offense that would have been proved at trial. The government stated that the Federal Bureau of Investigations (“FBI”) and local law enforcement investigated a “traditional” drug-trafficking organization that received drugs from a supplier and distributed them to the public. Johnson purchased or obtained Oxycodone pills from individual co-conspirators, both indicted and unindict-ed, and transported them to Tallahassee, Florida, where the drugs would be sold for a significant profit. According to the government, Johnson agreed that his relationship with his co-conspirators “constituted more than a buyer-seller relationship.” The government stated that Johnson moved approximately 4,400 Oxycodone pills in this fashion, each averaging 30 milligrams in strength.

Defendant Johnson expressly admitted the facts as described by the government and pled guilty to Count 4. The district court then read most of the plea agreement to Johnson, including Paragraph 6, which concerned the acceptance-of-responsibility reduction and the recommendation for a sentence at the low end of the guidelines range. Johnson affirmed that he had read the plea agreement, discussed it with his attorney, and understood its terms.

D. Original Presentence Investigation Report

The original Presentenee Investigation Report (“PSI”) was issued in August 2012. In a section entitled “The Offense Conduct,” the PSI described in detail the drug-trafficking activities of Defendant Johnson and his codefendants. Specifically, the PSI stated that law enforcement officers mounted a federal investigation into a “violent drug trafficking organization (DTO)” that operated from an apartment complex and used the complex as a “drug trap.” Members of this DTO were “tied to homicides and armed robberies.” As part of the investigation, law enforcement agents conducted wiretaps on cell phones belonging to various DTO members, including Defendant Johnson and his brother, Toriano.

Agents learned that one DTO member, Dwayne Miller, was involved with cocaine and MDMA, served as the primary “lieutenant” for the “Johnson brothers,” and “received pre-packaged drugs from them for distribution.” Agents also learned that Defendant Johnson and Toriano funded the purchase of Oxycodone pills that were shipped in bulk to unindicted co-conspirators. The “Johnson brothers” used a house to store the drugs before distribu *905 tion. During the course of the conspiracy, the DTO possessed and distributed in excess of five kilograms of cocaine, at least 200 grams of crack, at least 1,000 MDMA pills, at least 30,000 Oxycodone pills, and at least 3.627 kilograms of marijuana.

In a section entitled “Role Assessment,” the PSI stated that Toriano headed the DTO and supplied cocaine, Ecstasy, and marijuana to the DTO for distribution. Defendant Johnson, on the other hand, was the “supervisor” of the DTO, and used the DTO to distribute Oxycodone and marijuana. Defendant Johnson was also involved in the cocaine conspiracy “to the extent that he would assist Toriano intermittently when Toriano was not available for delivery or distribution.” The PSI did not assign Johnson any responsibility for cocaine, but held him accountable for only 4,400 Oxycodone pills.

The PSI noted that Defendant Johnson had provided a statement accepting responsibility for his charged Oxycodone-conspiracy offense, as follows:

I accept responsibility for what I was accused of in the Indictment. The factual proffer, announced by the government in open court was accurate, and I assume accountability for my actions.

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Bluebook (online)
535 F. App'x 902, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-terrence-johnson-ca11-2013.