U.S. v. Johnson, No. 02-3971.

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtPer Curiam
Citation335 F.3d 589
PartiesUNITED STATES of America, Plaintiff-Appellee, v. James E. JOHNSON, Defendant-Appellant.
Decision Date09 July 2003
Docket NumberNo. 02-3971.
335 F.3d 589
UNITED STATES of America, Plaintiff-Appellee,
v.
James E. JOHNSON, Defendant-Appellant.
No. 02-3971.
United States Court of Appeals, Seventh Circuit.
Argued June 11, 2003.
Decided July 9, 2003.

Brian E. Pawlak (argued), Jason Torchinsky, Office of the U.S. Attorney, Milwaukee, WI, for plaintiff-appellee.

Robert R. Henak (argued), Milwaukee, WI, for defendant-appellant.

Before POSNER, COFFEY and RIPPLE, Circuit Judges.

PER CURIAM.


A jury found James Johnson guilty of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His first sentence was vacated and, at resentencing, the district court imposed a term of 210 months' imprisonment and five years' supervised release. Mr. Johnson now appeals

Page 590

this sentence. He argues that the district court enhanced the sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it calculated the drug quantity involved in the offense without submitting that issue to a jury. Mr. Johnson acknowledges our precedent holding that Apprendi does not affect the application of the Sentencing Guidelines as long as the sentence is within the statutory maximum. Nevertheless, he requests that we reconsider this issue in light of the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). For the reasons set forth in the following opinion, we affirm the judgment of the district court.

I
BACKGROUND

The facts in this case are not at issue; we set forth a plenary rendition in our earlier decision in United States v. Johnson, 200 F.3d 529, 531-32 (7th Cir.2000). We shall summarize here.

Mr. Johnson distributed cocaine for many years, beginning around 1979. From 1995 until his arrest in November 1997, he obtained cocaine from Michael Blake and Gordon Hagenkord, both of whom had received the cocaine from Candelario Nevarez-Diaz. When cocaine was available, Blake and Hagenkord delivered it to Mr. Johnson; on those occasions (every few weeks), Mr. Johnson paid them for previous deliveries. Most deliveries involved between one and four kilograms of cocaine. Although Blake was arrested in July 1997, Mr. Johnson continued thereafter to obtain cocaine from Hagenkord and another associate.

After his arrest, Blake agreed to cooperate with the government and record several conversations with Mr. Johnson about buying cocaine. At one meeting, Mr. Johnson provided Blake $5,000 toward the purchase of a kilogram or more of cocaine. Through Blake's cooperation, Mr. Johnson was arrested in November 1997 in connection with the drug conspiracy.

At his trial in October 1998, Mr. Johnson testified that he was not involved in the conspiracy. Blake, however, testified as the government's primary witness, and audio tapes of his conversations with Mr. Johnson were admitted into evidence. Id. These conversations corroborated Blake's testimony that he fronted cocaine to Mr. Johnson and that Mr. Johnson willingly participated in the conspiracy. Blake specifically testified that he supplied Mr. Johnson with between three and four kilograms of cocaine every ten to twelve days from 1995 until his arrest and that Mr. Johnson sold the cocaine on credit for approximately $27,000 per kilogram. Blake estimated that between January 1, 1996 and July 24, 1997, he supplied Mr. Johnson with between thirty-five and forty-five kilograms of cocaine. Id. Similarly, the government estimated, based on the recollection of witnesses at trial, that Mr. Johnson distributed approximately two kilograms of cocaine a month for twenty-one months, a total of forty-two kilograms. At the conclusion of the trial, the jury returned a verdict of guilty on one count of conspiracy to distribute and possession with intent to distribute cocaine.

Mr. Johnson was sentenced originally in 1999. The district court determined that he was responsible for 42 kilograms of cocaine. After finding that Mr. Johnson had been convicted of at least three controlled substance offenses in the past, the court applied the Armed Career Criminal Act. The court sentenced him to 360 months' imprisonment. We affirmed that judgment. See Johnson, 200 F.3d at 531. One of Mr. Johnson's prior convictions was

Page 591

later vacated, however, and Mr. Johnson filed a motion under 28 U.S.C. § 2255 seeking resentencing because the Armed Career Criminal Act no longer applied. At resentencing in October 2002, the district court calculated an offense level of 34, a criminal history category of IV, and a guideline imprisonment...

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11 practice notes
  • Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), No. 02-1632.
    • United States
    • United States Supreme Court
    • June 24, 2004
    ...(CA4 2000); United States v. Randle, 304 F.3d 373 (CA5 2002); United States v. Helton, 349 F.3d 295 (CA6 2003); United States v. Johnson, 335 F.3d 589 (CA7 2003) (per curiam); United States v. Piggie, 316 F.3d 789 (CA8 2003); United States v. Toliver, 351 F.3d 423 (CA9 2003); United States ......
  • Peralta-Basilio v. Hill, 03-08-3017M.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...to the same conclusion, regarding schemes similar to Oregon's sentencing guidelines, as we did in Dilts. See United States v. Johnson, 335 F.3d 589, 591-92 (7th Cir.2003), cert. den., 540 U.S. 1011, 124 S.Ct. 550, 157 L.Ed.2d 421 (2003); United States v. Piggie, 316 F.3d 789, 791 (8th Cir.2......
  • United States v. Patterson, No. 02-3134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 22, 2003
    ...a particular sentence does not implicate Apprendi `unless it exceeds a default statutory maximum.'" United States v. Johnson, 335 F.3d 589, 591 (7th Cir.2003) (quoting United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002)). As Patterson was sentenced to two concurrent sentences of 23......
  • Rucker v. U.S., No. 2:04-CV-00914PGC.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • February 10, 2005
    ...United States v. Randle, 304 F.3d 373 (5th Cir.2002); United States v. Helton, 349 F.3d 295 (6th Cir.2003); United States v. Johnson, 335 F.3d 589 (7th Cir.2003); United States v. Piggie, 316 F.3d 789 (8th Cir.2003); United States v. Toliver, 351 F.3d 423 (9th Cir.2003); United States v. Me......
  • Request a trial to view additional results
11 cases
  • Blakely v. Washington, No. 02-1632 (U.S. June 24, 2004), No. 02-1632.
    • United States
    • United States Supreme Court
    • June 24, 2004
    ...(CA4 2000); United States v. Randle, 304 F.3d 373 (CA5 2002); United States v. Helton, 349 F.3d 295 (CA6 2003); United States v. Johnson, 335 F.3d 589 (CA7 2003) (per curiam); United States v. Piggie, 316 F.3d 789 (CA8 2003); United States v. Toliver, 351 F.3d 423 (CA9 2003); United States ......
  • Peralta-Basilio v. Hill, 03-08-3017M.
    • United States
    • Supreme Court of Oregon
    • December 28, 2005
    ...to the same conclusion, regarding schemes similar to Oregon's sentencing guidelines, as we did in Dilts. See United States v. Johnson, 335 F.3d 589, 591-92 (7th Cir.2003), cert. den., 540 U.S. 1011, 124 S.Ct. 550, 157 L.Ed.2d 421 (2003); United States v. Piggie, 316 F.3d 789, 791 (8th Cir.2......
  • United States v. Patterson, No. 02-3134.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • October 22, 2003
    ...a particular sentence does not implicate Apprendi `unless it exceeds a default statutory maximum.'" United States v. Johnson, 335 F.3d 589, 591 (7th Cir.2003) (quoting United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002)). As Patterson was sentenced to two concurrent sentences of 23......
  • Rucker v. U.S., No. 2:04-CV-00914PGC.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • February 10, 2005
    ...United States v. Randle, 304 F.3d 373 (5th Cir.2002); United States v. Helton, 349 F.3d 295 (6th Cir.2003); United States v. Johnson, 335 F.3d 589 (7th Cir.2003); United States v. Piggie, 316 F.3d 789 (8th Cir.2003); United States v. Toliver, 351 F.3d 423 (9th Cir.2003); United States v. Me......
  • Request a trial to view additional results

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