U.S. v. Johnston, 91-3860
Decision Date | 20 October 1992 |
Docket Number | No. 91-3860,91-3860 |
Citation | 973 F.2d 611 |
Parties | UNITED STATES of America, Appellee, v. Darrin Dean JOHNSTON, Appellant. |
Court | U.S. Court of Appeals — Eighth Circuit |
David P. McManus, Cedar Rapids, Iowa, argued, for appellant.
James L. Papenthien, Cedar Rapids, Iowa, argued (Daniel C. Tvedt, on the brief), for appellee.
Before BOWMAN, LOKEN, Circuit Judges, and LARSON, * Senior District Judge.
Darrin Johnston appeals the prison sentence and fine imposed by the District Court after he pled guilty to manufacturing marijuana, a violation of 21 U.S.C. § 841(a)(1) and (b)(1) (1988). We affirm.
Johnston first attacks the mandatory application of the federal sentencing guidelines. He claims that instead of automatically applying the sentencing guidelines, as 18 U.S.C. § 3553(b) (1988) requires, the sentencing court first must apply 18 U.S.C. § 3553(a) (1988), which counsels the sentencing court "to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth [later] in this section." Johnston contends that the District Court is not bound by the guidelines, but instead should treat them simply as one factor to be considered in determining the appropriate sentence. As our court has rejected this line of argument in earlier cases, and the law of the Circuit thus has been established, Johnston's argument must fail. See United States v. Edgar, 971 F.2d 89, 96-99 (8th Cir.1992) (Heaney, J., concurring and dissenting) ( ); United States v. Stockton, 968 F.2d 715, 721 (8th Cir.1992) (Bright, J., concurring) ( ); United States v. England, 966 F.2d 403, 410 (8th Cir.1992) (Bright, J., concurring) (same); see generally United States v. Kelley, 956 F.2d 748 (8th Cir.1992) (en banc) ( ). 1
Johnston next attacks the constitutionality of 18 U.S.C. § 841(b) and United States Sentencing Commission, Guidelines Manual, § 2D1.1 (Nov. 1989), 2 United States v. Smith, 961 F.2d 1389, 1390 (8th Cir.1992). This argument is foreclosed by our holding in Smith that "the challenged ratio is not irrational" and thus is not unconstitutional. Id.; cf. United States v. Brown, 921 F.2d 785, 790 (8th Cir.1990) ( ); United States v. Buckner, 894 F.2d 975, 980 (8th Cir.1990) ( ). 3
Johnston objects to the District Court's decision to impose a two-level upward adjustment to his offense level for his role in the offense pursuant to U.S.S.G. § 3B1.1(c) (Nov. 1989). We will reverse the District Court's finding that Johnston was "an organizer, leader, manager, or supervisor," id., only if that finding is clearly erroneous. United States v. Schwarck, 961 F.2d 121, 123 (8th Cir.1992). Based on our review of the record, the court's finding is not clearly erroneous, as Johnston apparently owned the farm upon which much of the marijuana-growing activity took place, had the only set of keys to the barn (where growing apparatus was kept), and was to receive fifty percent of the illicit proceeds, while the other two people involved in the operation were to receive twenty-five percent each.
We consider next Johnston's contention that he should not have received a two-level increase in his offense level for obstructing justice, an adjustment imposed pursuant to U.S.S.G. § 3C1.1 (Nov. 1991). The record indicates that after he became aware the police knew of his marijuana-growing activity, he destroyed many of his marijuana plants and fled from Iowa to Arizona. In addition, after he was arrested in Arizona and brought back to Iowa, he wrote letters while in jail to his father and his wife asking them to provide a false alibi for him. In these circumstances, we cannot say that the District Court's finding that Johnston attempted to obstruct justice is clearly erroneous. See United States v. Todd, 963 F.2d 207, 211 (8th Cir.1992); United States v. Noland, 960 F.2d 1384, 1390 (8th Cir.1992); cf. United States v. Yerks, 918 F.2d 1371, 1375 (8th Cir.1990) ( ).
Johnston argues that the District Court erred in not granting him a two-level downward adjustment in his offense level for accepting responsibility pursuant to U.S.S.G. § 3E1.1 (Nov. 1991), an adjustment the government recommended be granted. U.S.S.G. § 3E1.1, comment. (n. 4) (Nov. 1991). Id. comment. (n. 5). The District Court noted that Johnston's acceptance of responsibility was an eleventh-hour jailhouse conversion and that Johnston did not voluntarily terminate his criminal activity. That being the case, the court's finding that Johnston was not entitled to the acceptance-of-responsibility adjustment is not clearly erroneous. See United States v. Askew, 958 F.2d 806, 811-12 (8th Cir.1992).
Johnston also argues that the District Court erred in denying his motion for a downward departure pursuant to U.S.S.G. § 5K2.0 (Nov. 1991) ( ). Such a discretionary decision by the District Court is not reviewable by this Court. 4 United States v. Wilson, 955 F.2d 547, 552 (8th Cir.1992).
Johnston further argues that he should have received a U.S.S.G. § 5K1.1 (Nov. 1989) downward departure for substantial assistance, and that he should have been allowed to inquire into the government's reasons why it did not make a section 5K1.1 motion. "[A]s a general rule, a government motion for departure is a prerequisite to departure for substantial assistance." United States v. Davila, 964 F.2d 778, 786 (8th Cir.1992). However, Id. Johnston offers no support for his claim that the government acted in bad faith, other than stating that he could not think of any other reason why the government did not make such a motion. Without more than this bare allegation, the District Court properly denied Johnston's attempt to conduct an inquiry into the government's reasons...
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