U.S. v. Johnson, 89-5158

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM; HENLEY
• Citation: U.S. v. Johnson, 888 F.2d 1255 (8th Cir. 1989)
• Decision Date: 08 November 1989
• Docket Number: No. 89-5158,89-5158
• Parties: UNITED STATES of America, Appellee, v. Brent Joseph JOHNSON, Appellant.

Page 1255

888 F.2d 1255

UNITED STATES of America, Appellee, v. Brent Joseph JOHNSON, Appellant.

No. 89-5158.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 12, 1989.

Decided Nov. 8, 1989.

C. Charles Chinquist, Fargo, N.D., for appellant.

Gary Annear, Fargo, N.D., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and BEAM, Circuit Judge.

HENLEY, Senior Circuit Judge.

Brent Joseph Johnson appeals from the sentence imposed by the district court ¹ following his plea of guilty to conspiracy to possess with intent to distribute and distribute cocaine, D-Lysergic Acid Diethylamide (LSD), and psilocybin in violation of 21 U.S.C. Sec. 846. The sole issue on appeal is whether the district court erred in calculating the base offense level under the Sentencing Guidelines. We affirm.

Johnson and Wesley Hawkins were charged in a six-count indictment with possession with intent to distribute and distribution of seven grams of cocaine (Count I); possession with intent to distribute and distribution of five hundred dosage units of LSD (Count II); possession with intent to distribute and distribution of one-half ounce of psilocybin mushrooms (Count III); possession with intent to distribute and distribution of one ounce of cocaine (Count IV); possession with intent to distribute and distribution of five thousand dosage units of LSD (Count V); and conspiracy to possess with the intent to distribute and distribute cocaine, LSD, and psilocybin mushrooms (Count VI). Johnson pleaded guilty to Count VI and the government dismissed the remaining counts.

The presentence investigation report (PSR) undertook to relate the essential facts. According to that report, on September 19, 1988 special agent Gerald Kemmet spoke with Hawkins by telephone to arrange a sale of LSD and cocaine. Johnson drove Hawkins to a motel in Wahpeton, North Dakota. In a bathroom of the motel, Hawkins offered to sell Kemmet one-eighth ounce of cocaine for $300.00 and five hundred "hits" of LSD for $1,000.00, and instructed Kemmet to drive him to a restaurant in Breckenridge, Minnesota to consummate the sale. Hawkins told Kemmet that Johnson was his "connection" and would follow them to the restaurant. In a bathroom of the restaurant, Hawkins and Kemmet exchanged the drugs for $1,300.00.

On October 12, 1988 Hawkins telephoned Kemmet and offered to sell him five thousand "hits" of LSD, one ounce of cocaine, and one-fourth pound of psilocybin mushrooms. Hawkins instructed Kemmet to meet him at a motel in Fergus Falls, Minnesota. Johnson again drove Hawkins to the transaction. Hawkins and Kemmet exchanged the drugs for $17,800.00 in an undercover vehicle in the motel parking lot. After the transaction, Johnson was arrested one-half block from the motel.

In the PSR, the probation officer recommended a base offense level of 20 which was calculated on 430 milligrams of LSD, 30.92 grams of cocaine, and one-half ounce of mushrooms. The officer also recommended a two-point reduction for acceptance of responsibility. Because Johnson had a criminal history category of III, the guideline range was thirty-three to forty-one months. Johnson objected to the calculation of the base offense level, asserting that he had no knowledge of the LSD and mushrooms, and that the base offense level should be 14 based solely on the weight of the cocaine.

At the sentencing hearing, the district court noted Johnson's objection to the calculation of the base offense level. The court also noted that Johnson had pleaded guilty to conspiracy that included distribution of LSD and mushrooms, as well as cocaine. The court allowed Johnson's counsel, the government, and the probation officer to address Johnson's objection. Johnson's counsel noted that although Johnson had supplied the cocaine and transportation, he had not participated in the telephone calls between Hawkins and Kemmet and was not present at the time Hawkins and Kemmet exchanged the drugs. The government noted, among other things, that Johnson had admitted securing the cocaine and providing transportation, that after the first transaction a police officer stopped Johnson and Hawkins for a traffic offense and saw Johnson had a large amount of cash, and that Johnson had pleaded guilty to the charges. The probation officer also noted that Johnson had pleaded guilty to the conspiracy count of the indictment and had been named in the substantive counts. In addition, she pointed out that Sec. 2D1.4 of the Guidelines provided that if a defendant was convicted of conspiracy, a sentence should be imposed on the basis of the conduct of coconspirators that was known to a defendant or was reasonably foreseeable. The officer further noted that Johnson was aware of the dollar amounts of the transactions.

The court rejected Johnson's explanation and adopted the recommendation of the PSR. The court sentenced Johnson to thirty-six months imprisonment and three years...