U.S. v. Johnson

• Decision Date: 26 January 2009
• Docket Number: No. 07-2447.,07-2447.
• Citation: 553 F.3d 990
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth James JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

553 F.3d 990

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth James JOHNSON, Defendant-Appellant.

No. 07-2447.

United States Court of Appeals, Sixth Circuit.

Argued: January 22, 2009.

Decided and Filed: January 26, 2009.

ARGUED:

Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant. B. Rene Shekmer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

ON BRIEF:

Martin J. Beres, Law Offices of Martin J. Beres, Clinton Township, Michigan, for Appellant. B. Rene Shekmer, Assistant United States Attorney, Grand Rapids, Michigan, for Appellee.

Before: MARTIN and MOORE, Circuit Judges; GWIN, District Judge.^*

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant-Appellant Kenneth James Johnson ("Johnson") appeals a 110-month sentence imposed after he pleaded guilty to one count of conspiracy to distribute more than five grams of cocaine base (crack), one count of distribution of cocaine base (crack), and four counts of distribution of more than five grams of cocaine base (crack). Johnson makes five arguments on appeal: (1) the district court abused its discretion in ordering Johnson's federal sentence to be served consecutive to his state sentence for drug possession; (2) the within-guidelines sentence imposed is procedurally and substantively unreasonable; (3) the district court erred in failing to grant a downward departure on the ground that Johnson's criminal history category of VI substantially overrepresented the seriousness of his criminal history; (4) trial counsel was ineffective at sentencing by failing sufficiently to argue for a downward departure based upon Johnson's exceptional cooperation and acceptance of responsibility; (5) the district court erred in failing to articulate whether it considered Johnson's exceptional cooperation and acceptance of responsibility in denying Johnson's motion for a downward departure.

In light of the Supreme Court's recent decision in Spears v. United States, 129 S.Ct. 840, No. 08-5721, 2009 WL 129044 (Jan. 21, 2009), we VACATE Johnson's sentence and REMAND for resentencing. Spears held that district courts have the power to categorically reject and vary from the crack-cocaine sentencing guidelines based on a policy disagreement with the guidelines, even in a mine-run case such as this. Because the district court sentenced Johnson without the benefit of Spears, we remand for resentencing to give the district court an opportunity to impose a sentence with full recognition of its authority to reject and vary from the crack-cocaine Guidelines based solely on a policy disagreement with those Guidelines.

I. BACKGROUND

On October 11, 2006, a nine-count indictment was filed charging Johnson and his co-conspirator, McKinley Laverne Underwood, with various counts relating to the distribution of crack cocaine from February 2006 to April 2006 in Kalamazoo County, Michigan. Joint Appendix ("J.A.") at 12-20 (Indictment). Johnson was indicted on one count of conspiracy to distribute more than five grams of cocaine base (crack) in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(B)(iii), one count of distribution of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and four counts of distribution of more than five grams of cocaine base (crack) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). An admitted cocaine addict for much of his life, Johnson says that he delivered crack cocaine for Underwood, and in exchange Underwood gave him cocaine for his personal use. According to Johnson, Underwood would drive or accompany him to prearranged drug buys in parking lots, where Johnson would exit the vehicle, carry the crack cocaine to the buyer in another vehicle, and then return with the money to Underwood. Johnson's involvement came to light during an ongoing investigation of Underwood and followed a series of controlled buys by an undercover officer in March and April of 2006 in which Johnson delivered a total of 47.633 grams of cocaine base (crack).

Following a parole violation for his 2002 sentence for possession of cocaine, Johnson was arrested on July 16, 2006. Two days later, Johnson was interviewed at the Kalamazoo County Jail by a DEA agent and state drug-enforcement officers, including the undercover agent who conducted the controlled buys. After waiving his Miranda rights, Johnson stated that he first sold powder cocaine for Underwood from the summer of 2001 until August 2002, when he was imprisoned following a state conviction for possession of cocaine. Johnson said that after his release from prison in the summer of 2003, he returned to Underwood's operation to deliver both crack and powder cocaine on a daily basis. Johnson detailed the quantities of drugs he delivered for Underwood and the relevant time frames, described various inner-workings of Underwood's operation, and identified both Underwood's source of supply and his main customer.

On March 26, 2007, Johnson entered a plea of guilty to all six counts charged in the indictment before a magistrate judge, which was later accepted by the district court. Although there was no written plea agreement, the government stated at the plea hearing that if Johnson pleaded guilty instead of proceeding to trial, it would forego filing a supplemental notice of a prior felony-drug conviction that would enhance Johnson's potential sentence on five of the counts from five to forty years, to ten years to life in prison.

At the sentencing hearing on November 7, 2007, the district court determined that Johnson's total adjusted offense level was 25 and assessed his criminal history at Category VI, for a Guidelines range of 110-137 months. The Presentence Investigation Report ("PSR") had calculated a base offense level of 30 based on 47.663 grams of crack cocaine, a two-level downward adjustment for acceptance of responsibility, and a one-level downward adjustment for timely entry of a guilty plea, for a total offense level of 27. The district court lowered Johnson's base offense level by two levels pursuant to the amended cocaine base (crack) Guidelines, which became effective on November 1, 2007. See U.S. SENTENCING GUIDELINES MANUAL ("U.S.S.G.") § 2D1.1(c)(6) (2007) (providing a base offense level of 28 for at least 35 grams but less than 50 grams of cocaine base). This resulted in an adjusted offense level of 25. The district court declined to make a downward adjustment for a mitigating role pursuant to U.S.S.G. § 3B1.2, finding that Johnson was not a mere drug "mule" with no knowledge of the amount or price of the drugs he carried, but instead a key player who brokered drug transactions for Underwood's drug-distribution operation.

Johnson's criminal history was assessed at Category VI based on the following prior convictions: (1) a 1993 conviction for operating while impaired (1 point); (2) a 1995 conviction for retail fraud in the second degree (1 point); (3) a 1995 conviction for retail fraud in the first degree (3 points); (4) a 1999 conviction for possession of marijuana (2 points); (5) a 1999 conviction for aggravated domestic violence (1 point); (6) a 2001 conviction for retail fraud in the second degree (1 point); (7) a 2002 conviction for possession of less than 25 grams of cocaine (Johnson possessed 0.29 grams) (3 points). Two additional points were assessed pursuant to U.S.S.G. § 4A1.1(d) because Johnson was on parole for the 2002 conviction when he committed the instant offense, and one additional point was assessed pursuant to U.S.S.G. § 4A1.1(e) because Johnson committed the instant offense less than two years after he was released from custody for the 2002 conviction. Johnson was thus assessed with a total of 15 points for a criminal history of Category VI. At the sentencing hearing, the district court rejected Johnson's argument that the 1993 and 1995 convictions were more than ten years prior to the instant offense and therefore should not count toward his criminal history. See U.S.S.G § 4A1.2(e)(2) (providing that prior sentences imposed within ten years of the instance offense are counted in computing the criminal history). Noting that the instant offense included relevant conduct under U.S.S.G. § 1B1.3, the court observed that Johnson had admitted to selling drugs for Underwood as early as the summer of 2001 and that the instant conspiracy dated to at least 2003.

Before announcing the sentence, the district judge heard in-court statements by Johnson and Johnson's brother regarding Johnson's history of drug addiction and need for treatment. The district judge also explained that he had "read all the materials that have been presented to me, including the sentencing memorandum of defense counsel, as well as the letters in support of Mr. Johnson and Mr. Johnson's letter that he sent to the Court himself." J.A. at 119 (Sent. Tr. at 21). After explaining that the correctly calculated range was 110-137 months, the district judge recited several of the 18 U.S.C. § 3553 factors. Next, the district judge explained that he would not grant a guideline departure or a variance:

The Court has reviewed [] whether a guideline departure or a variance under Section 3553 factors is warranted in this case. The Court finds that no such departure or variance is warranted in this case because the circumstances here, in the Court's judgment, are not so exceptional as to form the factual basis for any such departure or variance.

J.A. at 120 (Sent. Tr. at 22).

The district judge then explained his specific considerations in determining Johnson's within-guidelines sentence. He first explained that he had considered Johnson's "regretfully very long and varied criminal history, including larceny, domestic violence, unarmed robbery." Id. The district judge concluded that the risk Johnson would "re-offend without major changes in his life [was] high." Id. The judge also noted that Johnson had committed the instant offense...