United States v. Johnson

Citation732 F.3d 577
Decision Date07 October 2013
Docket NumberNo. 12–2138.,12–2138.
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Andrew Marcus JOHNSON, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

OPINION TEXT STARTS HERE

ON BRIEF:Michael M. Brownlee, Brownstone, P.A., Winter Park, Florida, for Appellant. Maarten Vermaat, United States Attorney's Office, Marquette, Michigan, for Appellee.

Before: BATCHELDER, Chief Judge; GUY and MOORE, Circuit Judges.

OPINION

RALPH B. GUY, JR., Circuit Judge.

Defendant Andrew Johnson pleaded guilty to one count of conspiracy to distribute and to possess with intent to distribute 280 grams or more of cocaine base. See21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(iii). Appealing his sentence, Johnson attacks the district court's determination that his relevant conduct involved the distribution of nearly 4.5 kilograms of cocaine base as both clearly erroneous and a violation of his Sixth Amendment rights. For the reasons that follow, we affirm.

I.

Johnson's Rule 11 Plea Agreement provided that, with the dismissal of two substantive distribution counts and other state weapons charges, Johnson would plead guilty to having conspired with others—including seven named cooperating coconspirators—to distribute and possess with intent to distribute at least 280 grams of cocaine base in Marquette County, Michigan, beginning in 2007 and continuing through July 2010. Johnson acknowledged that pleading guilty to this 280–gram quantity would trigger a mandatory minimum 10–year sentence and a maximum sentence of life imprisonment. There was no stipulation regarding drug quantities greater than 280 grams, although it was understood that Johnson could contest the drug quantity being attributed to him for purposes of sentencing without jeopardizing his ability to receive an acceptance-of-responsibility adjustment.

The presentence report detailed Johnson's involvement in the conspiracy, including his participation both in bringing cocaine base from Chicago to Marquette and in selling it to coconspirators and confidential informants. In fact, the two dismissed counts of distribution were based on Johnson's indirect involvement in two controlled buys of crack cocaine made through coconspirator Robert Petrocik. Proffers from Petrocik and several other cooperating coconspirators implicated Johnson directly and indirectly in the distribution of cocaine base in Marquette. The most significant proffer for purposes of this appeal, however, was made by coconspirator Ashley Rose Walker detailing how she and Johnson moved cocaine base from Chicago to Marquette three to four times per month from October 2008 through July 2010.

The presentence report prepared for Johnson sought to avoid possible double counting with respect to drug quantity by including only those quantities of cocaine base attributed to Johnson directly by coconspirators Crystal Abbott (70 grams), Petrocik (140 grams), and Walker (4,368 grams). Together, these amounts easily exceeded the 2.8 kilograms (roughly 100 ounces) of cocaine base necessary to trigger a base offense level of 36. See United States Sentencing Guidelines Manual (USSG) § 2D1.1(c)(2) (2012) (“At least 2.8 KG but less than 8.4 KG of Cocaine Base”). Johnson objected, arguing that his base offense level should be 34 because he should be held responsible for less than 2.8 kilograms (or 100 ounces) of cocaine base. SeeUSSG § 2D1.1(c)(3) (“At least 840 G but less than 2.8 KG of Cocaine Base”).1

Since the quantities in Walker's proffer alone were both necessary and sufficient to support a base offense level of 36, it is not surprising that the other quantities of cocaine base were not objected to by Johnson or relied upon by the district court. Walker estimated that she and Johnson moved a total of 160 ounces of cocaine base from Chicago to Marquette as follows: (1) 16 ounces from October 2008 through February 2009 (Walker drove Johnson in her Stratus); (2) 59 ounces from March to September 2009 (Walker and Johnson took the bus together); (3) 72 ounces from September 2009 to mid-April 2010 (Walker made trips mostly with Johnson in her Yukon SUV); and (4) 13 ounces from mid-April 2010 through July 2010 (Walker drove the Yukon alone).

In fact, at sentencing, Johnson expressly conceded that he should be held accountable for the quantities that Walker estimated they distributed during the first two periods (a total of 75 ounces or 2.1 kilograms); hence, his stipulation to a base offense level of 34. However, Johnson contested the quantities that Walker estimated they moved during the latter two periods. After an evidentiary sentencing hearing, at which Walker and Johnson's mother testified, the district court found by a preponderance of the evidence that Johnson was directly involved with Walker in the distribution of a slightly more conservative estimate of 82 ounces of cocaine base during the disputed period.

In total, the district court found that Johnson's relevant conduct involved the distribution of at least 157 ounces (or 4.45 kilograms) of cocaine base and that he therefore had a base offense level of 36. Further adjustments (which are not in dispute) lowered his offense level to 34, which, when combined with a criminal history category of IV, produced a Guidelines range of 210–262 months. The district court sentenced Johnson to a 210–month term of imprisonment, to be followed by a five-year term of supervised release. This appeal followed.

II.

Johnson's attack on the correctness of the Guidelines calculation—a challenge to the procedural reasonableness of his sentence—is reviewed for abuse of discretion. Gall v. United States, 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). If the district court miscalculates the Guidelines range, the resulting sentenceis procedurally unreasonable. United States v. Bolds, 511 F.3d 568, 579 (6th Cir.2007). ‘A district court's determination of the quantity of drugs used to compute a defendant's sentence is a finding of fact that should be upheld unless clearly erroneous.’ United States v. Young, 553 F.3d 1035, 1051 (6th Cir.2009) (citation omitted).

When, as here, the precise quantity of drugs involved is uncertain, the district court must “err on the side of caution” and may only hold a defendant accountable for a specific quantity for which he is more likely than not actually responsible. United States v. Walton, 908 F.2d 1289, 1301, 1302 (6th Cir.1990). An estimate will suffice as long as it is supported by a preponderance of the evidence. Id. at 1301;see also Young, 553 F.3d at 1051.

Having conceded responsibility for the 75 ounces of cocaine base attributed to him for the periods covering October 2008 through September 2009, Johnson cannot (and does not) challenge the district court's inclusion of that amount in the relevant conduct determination. See United States v. Pruitt, 156 F.3d 638, 648 (6th Cir.1998). Walker, who had distributed drugs with someone else previously, began driving Johnson to Chicago to pick up cocaine base at the end of September 2008. Johnson paid Walker to drive him to Chicago in her Stratus to pick up cocaine base eight to ten times during the period from October 2008 through February 2009. They then traveled together to Chicago by bus to pick up cocaine base from March 2009 through September 2009. Walker described carrying as much as $5,000 or $6,000 in cash in her purse. Near the end of that period, sometime in June or July 2009, Walker began paying Johnson to obtain an extra ounce of cocaine base to distribute for herself. With Johnson's concession, and since the district court “may accept any undisputed portion of the presentence report as a finding of fact,” Fed.R.Crim.P. 32(i)(3)(A), the district court did not err in finding Johnson's relevant conduct included at least 75 ounces of cocaine base.

The question that remains is whether it was clear error for the district court to find that Johnson continued to be involved with Walker in the distribution of an additional 82 ounces of cocaine base during the two remaining periods: October 2009 until mid-April 2010 (72 ounces); and mid-April 2010 through July 2010 (10 ounces). Walker testified that she purchased a Yukon SUV in October 2009, which was used to distribute cocaine base from the Chicago area to the Marquette area three or four times per month until her arrest at the end of July 2010. Specifically, Walker was arrested on July 27, 2010, after being stopped while driving the Yukon and found to be in possession of two ounces of cocaine base, some marijuana, and several Moneygram receipts. Walker identified Johnson as her source at the time of her arrest, and gave a protected proffer to the government in October 2010.

At sentencing, Walker testified—consistent with her earlier proffer—that during the six-month period from October 2009 through mid-April 2010, she and Johnson transported four to six ounces of cocaine base, three or four times per month, for a total of 72 ounces (4 oz. x 18 trips). Walker testified that Johnson traveled with her to Chicago on most of those trips, except on four or five occasions when he was already in Chicago. Walker maintained that Johnson was living with her as of October 2009, but she conceded on cross-examination that Johnson may have stayed in Chicago for extended periods to take care of his son.

Two events marked the dividing point between the last two contested periods. First, Johnson was arrested in Chicago on weapons charges on April 12, 2010, after which he refused to travel with Walker and she transported the drugs alone until her arrest in July 2010. Second, Walker was stopped in a rental car on April 13, 2010, and $3,600 that she claimed to have to bail out an unnamed boyfriend was seized. After that seizure, Walker initially was able to get only one ounce of cocaine base at a time, but that increased to two ounces in early July 2010. In all, Walker estimated that she made seven or eight trips with cocaine base from mid-April...

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