U.S. v. Johnson

• Decision Date: 16 June 1994
• Docket Number: Nos. 91-1200,91-1201,s. 91-1200
• Citation: 25 F.3d 1335
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee JOHNSON, Defendant-Appellant. . Re
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1335

25 F.3d 1335

UNITED STATES of America, Plaintiff-Appellee, v. Roy Lee JOHNSON, Defendant-Appellant.

Nos. 91-1200, 91-1201.

United States Court of Appeals, Sixth Circuit.

Reargued Dec. 8, 1993.

Decided June 16, 1994.

Jennifer Mulhern Granholm (briefed and argued), Jennifer J. Peregord (reargued), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

William L. Spern (argued and briefed), Woodhaven, MI, Roy Lee Johnson (briefed), pro se.

Before: MERRITT, Chief Judge; and KEITH, KENNEDY, MARTIN, JONES, MILBURN, GUY, NELSON, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER and DAUGHTREY, Circuit Judges.

SILER, J., delivered the opinion of the court, in which MERRITT, C.J., KEITH, JONES, MILBURN, BOGGS, SUHRHEINRICH, and DAUGHTREY, JJ., joined. MARTIN, J. (pp. 1338-39), delivered a separate concurring opinion, in which KEITH and JONES, JJ., joined. GUY, J. (p. 1339), also delivered a separate concurring opinion. NELSON, J. (pp. 1339-42), delivered a separate dissenting opinion in which KENNEDY, RYAN, NORRIS, and BATCHELDER, JJ., joined.

SILER, Circuit Judge.

Defendant, Roy Lee Johnson, appeals his jury conviction and consecutive sentences. A panel of this court previously affirmed the conviction in United States v. Johnson, 986 F.2d 134 (6th Cir.1993). We now adopt that decision on all issues set out in the unpublished appendix to the opinion, but we reverse the decision of the district court in finding that the defendant committed two violations of 18 U.S.C. Sec. 924(c) under the circumstances of this case.

In 1989, federal officers executed a search warrant at defendant's residence in Detroit. In the bedroom, the officers found two firearms and two different types of controlled substances, to-wit, fourteen grams of cocaine and 150 Dilaudid (hydromorphone) tablets.

Defendant was indicted for, and convicted of, five counts of criminal offenses, all arising from what was found in his bedroom. Count 1 charged him with possessing cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1); Count 2 charged him with the use of the firearms (rifle and handgun) in relation to the drug trafficking crime specified in Count 1, in violation of 18 U.S.C. Sec. 924(c); Count 3 charged him with possession with intent to distribute Dilaudid, in violation of 21 U.S.C. Sec. 841(a)(1); Count 4 charged him with a second violation of 18 U.S.C. Sec. 924(c), using the same firearms in relation to the drug trafficking crime charged in Count 3; and Count 5 charged defendant as a felon in possession of a firearm, in violation of 18 U.S.C. Sec. 922(g)(1). The sentence on Counts 1, 3, and 5 was for 51 months on each count, to run concurrently. However, the sentence on Counts 2 and 4 was for the mandatory minimum five years per count, consecutive to each other, and consecutive to the 51-month sentence imposed on Counts 1, 3, and 5. Thus, the defendant was sentenced to a total of 171 months' incarceration, plus supervised release.

The narrow question before this court is whether a defendant may be sentenced to two or more consecutive terms for violating 18 U.S.C. Sec. 924(c)(1) ¹ by possessing firearms while simultaneously trafficking in two or more controlled substances under 21 U.S.C. Sec. 841.

We decided in United States v. Pope, 561 F.2d 663, 669 (6th Cir.1977), that the simultaneous possession of two distinct controlled substances with intent to distribute can be two offenses and result in consecutive sentences. Other circuits have reached a similar conclusion. See, e.g., United States v. Bonilla Romero, 836 F.2d 39, 47 (1st Cir.1987), cert. denied, 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33 (1988); United States v. DeJesus, 806 F.2d 31, 35-37 (2d Cir.1986), cert. denied, 479 U.S. 1090, 107 S.Ct. 1299, 94 L.Ed.2d 155 (1987); United States v. Grandison, 783 F.2d 1152, 1155-56 (4th Cir.), cert. denied, 479 U.S. 845, 107 S.Ct. 160, 93 L.Ed.2d 99 (1986); United States v. Davis, 656 F.2d 153 (5th Cir. Unit B Sept. 1981), cert. denied, 456 U.S. 930, 102 S.Ct. 1979, 72 L.Ed.2d 446 (1982); but see United States v. Martin, 302 F.Supp. 498 (W.D.Pa.1969), aff'd, 428 F.2d 1140 (3d Cir.), cert. denied, 400 U.S. 960, 91 S.Ct. 361, 27 L.Ed.2d 269 (1970).

Inasmuch as the Sentencing Guidelines now provide for grouping or combining of controlled substances for purposes of sentencing, see generally USSG Sec. 2D1.1, and because the offenses under 21 U.S.C. Sec. 841 carry high maximum penalties, the simultaneous possession of controlled substances almost always results in concurrent sentences, as it did in this case, even where the controlled substances are charged in separate counts of the indictment. See USSG Sec. 5G1.2(c). Thus, most, if not all, of the recorded cases on the issue were decided prior to the effective date of the Sentencing Guidelines in 1987. In this case, the defendant did not challenge in the district court the charging or conviction in two separate counts for simultaneous violations of 21 U.S.C. Sec. 841. Therefore, we leave to another occasion the question of whether Pope should be overruled.

The defendant claims that the imposition of consecutive sentences for multiple Sec. 924(c) convictions would violate the Double Jeopardy Clause of the Fifth Amendment to the Constitution under Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). However, because we do not reach the question of whether possessing separate controlled substances simultaneously is one predicate offense rather than two, we need not decide whether a problem of multiplicity exists under Blockburger. Cf. United States v. Nabors, 901 F.2d 1351, 1358 (6th Cir.), cert. denied, 498 U.S. 871, 111 S.Ct. 192, 112 L.Ed.2d 154 (1990).

Assuming from Pope that the simultaneous possession of more than one controlled substance constitutes more than one predicate offense, we now consider whether the possession of firearms in conjunction with such predicate offenses can result in consecutive mandatory minimum terms under Sec. 924(c). This court, as well as other circuits, has condoned the use of consecutive mandatory minimum terms under Sec. 924(c)(1). For example, in Nabors, 901 F.2d at 1357-58, we upheld the use of consecutive sentences under Sec. 924(c)(1) when the defendant used two firearms to protect his sales of crack cocaine and to assault a federal agent attempting to search his apartment. In that case, the two predicate offenses were distinct, in that one was an assault and attempted murder of a federal agent, in violation of 18 U.S.C. Secs. 111, 1114, and the other was the possession of cocaine with intent to distribute, in violation of 21 U.S.C. Sec. 841(a)(1). We declined to follow United States v. Torres, 862 F.2d 1025, 1032 (3d Cir.1988), which held that "although the law allows separate and discrete offenses to be charged, it does not permit separate and discrete sentences to be imposed when Congress did not intend double punishment." However, in Torres, the government stipulated that only one sentence could be imposed for multiple violations of Sec. 924(c)(2), when the predicate offenses were similar to those in Nabors, that is, assaulting a federal officer and conspiracy to distribute cocaine. Previously, our court in United States v. Henry, 878 F.2d 937, 944 (6th Cir.1989), left "for another day the question of whether we agree with Torres." In that case, one of the convictions under Sec. 924(c)(1) was vacated, because the prosecution used the same predicate offense for two separate Sec. 924(c)(1) counts.

In United States v. Clark, 928 F.2d 733, 738 (6th Cir.) (per curiam), cert. denied, --- U.S. ----, 112 S.Ct. 144, 116 L.Ed.2d 110, and cert. denied, --- U.S. ----, 112 S.Ct. 240, 116 L.Ed.2d 195 (1991), we held that where the defendant possessed one firearm in his hand and another in a bedroom, he could be charged with two separate Sec. 924(c)(1) offenses, even though there was only one predicate drug trafficking offense, that is, possession of crack with intent to distribute. However, the district court merged the two convictions under Sec. 924(c)(1) for purposes of sentencing. Inasmuch as the United States was not an appellant in that case, the decision does not uphold the use of merged convictions for sentencing under similar facts. Nevertheless, such a procedure was upheld in United States v. Sims, 975 F.2d 1225, 1235 (6th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1315, 122 L.Ed.2d 702 and cert. denied, --- U.S. ----, 113 S.Ct. 1617, 123 L.Ed.2d 177, and cert. denied, --- U.S. ----, 113 S.Ct. 1620, 123 L.Ed.2d 179 (1993). Recently, our court has further refined sentencing under the circumstances involving one predicate offense and two firearms by directing the district court to vacate the sentence on the additional firearm count while allowing the first, or the one with the higher penalty, to stand. See United States v. Taylor, 13 F.3d 986, 994 (6th Cir.1994). See also United States v. Freisinger, 937 F.2d 383, 392 (8th Cir.1991) (concurrent sentences authorized for Sec. 924(c)(1) convictions with a single underlying offense); United States v. Chalan, 812 F.2d 1302, 1317 (10th Cir.1987) (vacated one of two Sec. 924(c)(1) convictions where predicate offenses merged).

Our recitation shows that this hair-splitting sometimes leads to absurd results, which "makes it unreasonable to believe that the legislator intended to include the particular act." Church of the Holy Trinity v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892). The absurdity is that a defendant with one firearm and one marijuana joint, one rock of crack, and one Dilaudid would receive fifteen years (or forty-five years, under the government's theory ²) for the gun in addition to the sentence on the drug charges, assuming the drugs were possessed with intent to distribute, while a drug kingpin with ten kilos of crack and the same firearm would only receive one five-year sentence,...