U.S. v. Johnson

• Citation: 331 F.3d 962
• Decision Date: 17 June 2003
• Docket Number: No. 01-3087.,01-3087.
• Parties: UNITED STATES of America, Appellee, v. Spencer L. JOHNSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

331 F.3d 962

UNITED STATES of America, Appellee, v. Spencer L. JOHNSON, Appellant.

No. 01-3087.

United States Court of Appeals, District of Columbia Circuit.

Argued September 6, 2002.

Decided June 17, 2003.

Appeal from the United States District Court for the District of Columbia (No. 98cr00062-01).

Lisa B. Wright, Assistant Federal Public Defender, argued the cause and filed the briefs for appellant. A. J. Kramer, Federal Public Defender, entered an appearance.

Valinda Jones, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, and Thomas C. Black, Assistant U.S. Attorneys.

Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

In this appeal we consider Spencer Johnson's challenges to his conviction and sentence for possessing with intent to distribute 50 grams or more of cocaine base. Johnson levels one challenge premised on the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and three attacking the district court's refusal to depart downward from the sentence prescribed by the United States Sentencing Guidelines (U.S.S.G.). Although the appeal poses procedural complexities as a consequence of the loss and later recovery of the court reporter's notes of Johnson's sentencing hearing, the substantive analysis of Johnson's claims is relatively straightforward. For the reasons stated below, we reject the defendant's arguments and affirm the judgment of the district court.

I

On June 22, 1998, a jury found Johnson guilty of possessing with intent to distribute 50 grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and of simple possession of marijuana, in violation of 21 U.S.C. § 844(a). Johnson was sentenced to 121 months' incarceration and 5 years' supervised release for the first count, and 12 months' incarceration and one year of supervised release for the second, to be served concurrently. Johnson appealed his conviction, arguing that the prosecutor had made improper statements in his closing argument to the jury. This court found that, although the prosecutor's remarks were improper, the error was harmless. See United States v. Johnson, 231 F.3d 43, 49 (D.C.Cir.2000) [hereinafter Johnson I].

Johnson also advised the court that he wanted to raise several challenges to his sentence, particularly a claim that the district court should have granted a two-level adjustment to his offense level under the so-called "safety valve" provisions of the Sentencing Guidelines, U.S.S.G. §§ 2D1.1(b)(6) & 5C1.2. Johnson contended that he was hampered in making these challenges, however, because the court reporter's notes and any transcript of the sentencing hearing had been lost by the Miller Reporting Company, and because the sentencing judge — who under such circumstances would normally have approved a reconstruction of the proceedings pursuant to Federal Rule of Appellate Procedure 10(c) — had fallen ill and was unable to reconstruct the record. Agreeing that Johnson had been disadvantaged, the court remanded the case for resentencing "[i]n light of these unusual circumstances." 231 F.3d at 45.

On remand, the circumstances became even more unusual. Shortly after the decision in Johnson I, Miller Reporting found the court reporter's notes and reproduced the missing transcript. The government then moved to recall this court's mandate and to reopen the appeal to permit Johnson to raise any issues that appeared in the newly-available transcript, arguing that the existence of the transcript rendered resentencing unnecessary. In response, the court issued an order denying the government's motion, "without prejudice to the matters set forth by [the government] ... being presented to the district court for its consideration." United States v. Johnson, No. 98-3111, Order at 1 (D.C.Cir. Mar. 1, 2001).

At the resentencing, Johnson abandoned the safety valve argument and instead raised several claims that he had not asserted at his original sentencing. Chief among these was an attack on his conviction and sentence based upon the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), a decision that had not been issued until after Johnson submitted his briefs in Johnson I. Johnson also contended that he was entitled, on a number of grounds, to a departure from the sentence otherwise dictated by the Sentencing Guidelines. Finally, Johnson argued that the resentencing court should consider all of these claims de novo, despite his failure to raise them at his original sentencing.

The district court rejected Johnson's request for a de novo sentencing. Finding that the limited purpose of the remand had evaporated once the reporter's notes were discovered and transcribed, and that the transcript showed that there was "nothing wrong with what [the original sentencing judge] did, why he did it, or how he did it," the court held that "the purpose for the remand [would best be] served by reissuing or newly issuing" the same judgment and commitment. Resentencing Tr. at 48-49 (July 5, 2001). In the alternative, the court held that there was no Apprendi error in Johnson's trial or sentencing, see id. at 50-51, and that the defendant was entitled to "no downward adjustment of any kind," Resentencing Tr. at 9 (July 16, 2001); see id. at 13. Accordingly, the court reimposed the original sentence.

Johnson now appeals from his resentencing. Of the many arguments raised during the remand, he presses only four here. The first is the claim of Apprendi error, which we consider in Part II below. The remaining three are claims for departure from the Sentencing Guidelines, which we consider in Part III.

II

In Apprendi, the Supreme Court held that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. at 2362-63. Johnson contends that both his conviction and his sentence under § 841(b)(1)(A)(iii), for a drug offense involving 50 grams or more of cocaine base, violate this rule. We begin by addressing the appropriate standard of review, and then consider the merits of Johnson's Apprendi argument in Parts II.B and II.C below.

A

Ordinarily, we would review an Apprendi claim not raised at trial or sentencing only for plain error under Federal Rule of Criminal Procedure 52(b) — even when Apprendi itself was not issued until after the sentencing took place. See United States v. Cotton, 535 U.S. 625, 631, 122 S.Ct. 1781 1785, 152 L.Ed.2d 860 (2002); see also United States v. Saro, 24 F.3d 283, 286-87 (D.C.Cir.1994). Johnson asks us to eschew this usual course in light of the remand for resentencing that was ordered in Johnson I. Although he did not raise any of his current objections at his trial or initial sentencing, Johnson maintains that the district court should have treated the resentencing as a "replacement" sentencing and reviewed his claims de novo. He further contends that this court should now review the district court's rejection of those claims as if they had been properly raised below. While he does not quite close the loop, the implication of Johnson's argument is that we should review the district court's decision under the harmless error standard of Rule 52(a). See Neder v. United States, 527 U.S. 1, 7-9, 119 S.Ct. 1827, 1832-34, 144 L.Ed.2d 35 (1999).

At the time this appeal was argued, the standard governing remands for resentencing was that stated in United States v. Whren: "[U]pon a resentencing occasioned by a remand, unless the court of appeals expressly directs otherwise, the district court may consider only such new arguments or new facts as are made newly relevant by the court of appeals' decision — whether by the reasoning or by the result." 111 F.3d 956, 960 (D.C.Cir.1997). After oral argument in this case, the en banc court decided United States v. McCoy, 313 F.3d 561 (D.C.Cir.2002). In McCoy, we held that, when a defendant seeks to raise for the first time on remand an argument that was only "contingently relevant in the initial sentencing (but the contingency did not then materialize)," and when "the district court's action on remand renders the contention determinative," a defendant may raise the previously contingent issue if "she [can] establish `good cause' ... for not having raised it sooner." Id. at 561-62.

In neither McCoy nor Whren did the defendant seek to raise on remand an argument that had become newly available because of an intervening change in law, like the Apprendi decision in Johnson's case. Nor need we decide today the standard that would ordinarily apply in such cases. As we have noted, this is an unusual case that became even more unusual as events unfolded. Although we might not have employed the same adjective, we are sympathetic to the district judge's statement that it "seem[ed] surrealistic" to pretend that the transcript of the original sentencing did not exist when it did. Resentencing Tr. at 25 (July 5, 2001). As the judge put it: "Why should I act as though there is no transcript and search for error and problems when we now have the transcript and there was no error and there are no problems?" Id. at 37.

We have no good answer to the judge's query. Indeed, we have no good answer as to why this case should be treated any differently than if the missing transcript had been discovered before our decision in Johnson I, rather than shortly thereafter. That is particularly so since defendant's Apprendi claim has nothing to do with anything he discovered in the lost transcript. We therefore conclude, in retrospect, that we should have granted the government's motion to...