U.S. v. Johnson

• Decision Date: 03 January 1995
• Docket Number: No. 94-2244,94-2244
• Citation: 43 F.3d 1211
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Julius Randolph JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1211

43 F.3d 1211

UNITED STATES of America, Plaintiff-Appellee, v. Julius Randolph JOHNSON, Defendant-Appellant.

No. 94-2244.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 11, 1994.

Decided Jan. 3, 1995.

Robert D. Richman, Minneapolis, MN, argued, for appellant.

Joseph T. Walbran, Minneapolis, MN, argued (Don W. Bakke, Legal Intern, on the brief), for appellee.

Before WOLLMAN, Circuit Judge, HEANEY, Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Julius Randolph Johnson appeals the sentence imposed upon him after he pleaded guilty to possession with intent to distribute cocaine base and using and carrying a firearm during a drug trafficking offense. On appeal, Johnson contends that the district court erred by assigning one point to his criminal history score based on a prior Minnesota state misdemeanor conviction for which he received a straight stay of imposition of sentence without an accompanying term of probation. We reverse and remand for resentencing.

I. BACKGROUND

On October 20, 1993, a federal grand jury charged Julius Randolph Johnson in a two-count indictment with possession of cocaine base with intent to distribute in violation of 21 U.S.C. Sec. 841 (Count I) and with using and carrying a firearm during the commission of a drug trafficking crime in violation of 18 U.S.C. Sec. 924(c) (Count II). Johnson pled guilty to both counts pursuant to a plea agreement.

The presentence report (PSR) calculated Johnson's total offense level on Count I to be 31 and his criminal history score to be 4, placing him in criminal history category III with a resulting sentencing range of 135 to 168 months of imprisonment. The PSR assigned one point to Johnson's criminal history score for a 1992 Minnesota state misdemeanor conviction for obstructing the legal process. As punishment for this misdemeanor conviction, Johnson received a stay of imposition of sentence for one year, see Minn.Stat.Ann. Sec. 609.135(1) (West Supp.1994), on the condition that he refrain from committing the same or similar offenses, after which time the case would be dismissed if no further offenses had been committed. The case was dismissed one year after the sentence was stayed because Johnson had not committed any further offenses.

At his federal sentencing hearing in the present case, Johnson objected to the addition of this one point to his criminal history score. The district court rejected Johnson's arguments, adopted the recommendations set forth in the PSR, and sentenced Johnson at the bottom of the identified Guidelines range to 135 months of imprisonment on Count I and imposed the mandatory 60-month consecutive sentence on Count II. Johnson appeals.

II. DISCUSSION

The sole issue in this appeal is whether the district court erred in assigning the one criminal history point to Johnson's criminal history score on Count I under the United States Sentencing Commission Guidelines Manual Secs. 4A1.1(c) and 4A1.2(c)(1) (Nov. 1993) for his prior Minnesota state misdemeanor conviction for obstructing the legal process. Johnson contends that this prior conviction should not be used to calculate his criminal history score because: (1) due to the nature of a stay of imposition of sentence, he never actually received a sentence for this conviction; or alternatively (2) assuming this one-year period is considered to be a sentence in itself, such a sentence does not fall within the meaning of "probation" as that term is found in U.S.S.G. Sec. 4A1.2(c)(1). We review factual determinations made by the district court under the clearly erroneous standard while the application of a Guidelines provision to the facts of the case presents an issue of law which we review de novo. United States v. Frieberger, 28 F.3d 916, 918 (8th Cir.1994).

As a threshold matter, the government observes that even if Johnson's criminal history category is determined to be II rather than III, his sentence of 135 months of imprisonment falls within the lower of the two applicable Guidelines ranges. ¹ The government argues that the sentencing court deliberately chose a sentence that fell within both ranges and indicated at sentencing that the same sentence would be imposed if Johnson's arguments concerning his criminal history score later prevailed and he was placed in category II. Therefore, the government contends that under our prior case law, Johnson's sentence is unreviewable.

We have previously emphasized that a sentence which falls within two arguable Guidelines ranges is unreviewable only under circumstances where "it is clear that the sentencing court would have imposed the same sentence regardless of whether the appellant's argument for a lower guideline range ultimately prevailed." United States v. Simpkins, 953 F.2d 443, 446 (8th Cir.1992); see also United States v. Kloor, 961 F.2d 1393, 1394 (8th Cir.1992). After thoroughly reviewing the record, we believe that it is far from clear that the district court would impose the same sentence in this case if Johnson's criminal history category was determined to be II. The district court acknowledged that Johnson's sentence fell within an area of overlap between the two arguably applicable Guidelines ranges, but it expressly declined the government's invitation to state on the record that it would impose the same sentence if Johnson's arguments concerning his criminal history category later prevailed. ² Thus, Johnson's sentence is reviewable, and we proceed to the merits of his arguments.

U.S.S.G. Sec. 4A1.2(c)(1) provides that certain enumerated prior misdemeanor offenses are to be calculated in a defendant's criminal history score if "the sentence [imposed for the offense] was a term of probation of at least one year." U.S.S.G. Sec. 4A1.2(c)(1). Johnson concedes that his conviction for obstructing the legal process is within the meaning of U.S.S.G. Sec. 4A1.2(c)(1). See U.S.S.G. Sec. 4A1.2(c)(1) ("[h]indering or failure to obey a police officer" countable). Johnson also concedes that the term of the stay of imposition of sentence was one year in duration. Therefore, we need only determine if the stay of imposition of sentence was: (1) a "sentence" within the meaning of U.S.S.G. Sec. 4A1.2(c)(1) and if so, (2) whether such sentence falls within the meaning of "probation" in that Guidelines provision.

Johnson first argues that he did not receive a "sentence" within the meaning of U.S.S.G. Sec. 4A1.2(c)(1) for his prior misdemeanor conviction because the state sentencing judge did not impose a fine, imprisonment, or a combination thereof pursuant to Minn.Stat.Ann. Sec. 609.125 (West Supp.1994), the governing Minnesota statute for misdemeanor sentences. ³ Rather, the sentencing judge chose to stay imposition of sentence entirely, a procedure authorized by Minn.Stat.Ann. Sec. 609.135(1). Johnson reasons that because the state court refrained from imposing a sentence upon him for a period of one year and then dismissed the case, the effect was as if no sentence was imposed at all. Thus, U.S.S.G. Sec. 4A1.2(c)(1), which by its terms expressly requires a "sentence" in order to apply, is inapposite in this case.

We reject this reasoning. U.S.S.G. Sec. 4A1.2(a) defines what is a prior sentence for criminal history purposes. Section 4A1.2(a)(3) clearly states that "[a] conviction for which the imposition or execution of sentence was totally suspended or stayed shall be counted as a prior sentence under Sec. 4A1.1(c)." Section 4A1.1(c) would assess one point for a sentence for which imposition of sentence was stayed. Hence, Johnson's argument that his stayed sentence is not a "prior sentence" under the Sentencing Guidelines is answered by the Guidelines themselves. The real issue is not whether Johnson's prior stayed sentence is a "prior sentence," but rather whether or not it is a "countable" sentence under the Guidelines. See Application Note 3 to U.S.S.G. Sec. 4A1.1 ("Sentences for certain specified non-felony offenses are counted only if they meet certain requirements. See Sec. 4A1.2(c)(1).") As noted above, Johnson's prior sentence is countable only if his sentence was one of "probation" for at least one year. Accordingly, we proceed to analyze whether the disposition of Johnson's case falls within the meaning of "probation" under U.S.S.G. Sec. 4A1.2(c)(1).

Johnson contends that where imposition of sentence is stayed, without an accompanying term of probation, such disposition does not constitute a sentence of probation under U.S.S.G. Sec. 4A1.2(c)(1). He observes that under Minnesota law, the trial court had the discretion to sentence him to formal or informal probation as a condition of staying imposition of his sentence, but chose to do neither and thus his sentence falls short of "a term of probation" under U.S.S.G. Sec. 4A1.2(c)(1). We agree.

Under Minnesota law, with certain exceptions not relevant here, a sentencing court:

may stay imposition or execution of sentence and (a) may order intermediate sanctions without placing the defendant on probation or (b) may place the defendant on probation with or without...