United States v. Johnson, 040919 FED11, 18-10176

Docket Nº:18-10176
Opinion Judge:PER CURIAM
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. RICHARD JOHNSON, Defendant-Appellant.
Judge Panel:Before ED CARNES, Chief Judge, WILSON, and HULL, Circuit Judges.
Case Date:April 09, 2019
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

RICHARD JOHNSON, Defendant-Appellant.

No. 18-10176

United States Court of Appeals, Eleventh Circuit

April 9, 2019

DO NOT PUBLISH

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 1:17-cr-20299-FAM-1

Before ED CARNES, Chief Judge, WILSON, and HULL, Circuit Judges.

PER CURIAM

Richard Johnson was convicted of conspiracy to possess with intent to distribute a controlled substance within 1, 000 feet of a school, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(2), 846, and 860(a); possession with intent to distribute a controlled substance within 1, 000 feet of a school, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(C), (b)(2), and 860(a); and maintaining a premises within 1, 000 feet of a school for the purpose of distributing a controlled substance, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 856(a)(1) and 860(a). He argues that the district court erred when it denied his motion to suppress evidence because: (1) his arrest was not based on probable cause; (2) the police improperly searched his home before obtaining a warrant; and (3) the search warrant that was later issued was invalid because it was based on intentional and reckless misrepresentations and omissions of facts, which required a Franks hearing. He also argues that his sentence is procedurally and substantively unreasonable.

I.

Detective Onassis Perdomo surveilled Johnson's home throughout December 2016 and January 2017 after receiving an anonymous tip that narcotics were being sold at Johnson's address. On multiple occasions Perdomo observed different individuals make quick hand-to-hand transactions with Johnson through his front door or bedroom window. Perdomo testified that he had seen this type of transaction "thousands of times" but could not see exactly what was being exchanged.

On January 11 and January 17, 2017, Perdomo directed controlled drug buys with a confidential informant (CI). On both of those occasions Perdomo observed the CI make a hand-to-hand transaction with Johnson, retrieved drugs from the CI, and performed testing that indicated that the drugs were cocaine.

On January 19 Perdomo surveilled the house with Detectives Anibal Wagner and Juan Gonzalez. He saw Johnson exit his front door and give a paper bag to a young girl. When Wagner and Gonzalez approached Johnson he yelled "they're jumping, they're jumping." Wagner knew that this was a slang term used to indicate the presence of plainclothes officers and believed Johnson was trying to alert someone inside the house. He approached the bedroom window next to Johnson's front door and saw what appeared to be a firearm and several small baggies filled with cocaine. Wagner approached the open front door and yelled, "Police, come out with your hands up." Wagner saw a man later identified as Ricardo Jackson walk past the front door with his back toward Wagner. He ordered Jackson to stop and put his hands up, but Jackson did not comply. Wagner detained Jackson and conducted a protective sweep of the house. Meanwhile Gonzalez arrested Johnson and discovered that the paper bag he had handed to the girl contained only perfume. Gonzalez searched Johnson and found two Altoid tins containing several bags of cocaine. Perdomo then obtained a search warrant and found additional narcotics and drug paraphernalia inside the house.

Before trial Johnson moved to suppress evidence seized from his person and his residence. He argued that a Franks hearing was necessary because the warrant application contained misleading information. But he did not challenge the existence of probable cause for his arrest or the protective sweep of his home conducted before the issuance of the search warrant. Johnson also filed a motion to compel the disclosure of the CI's identity. The district court conducted an in camera hearing with the CI. After speaking with the CI ex parte at the hearing, the court concluded that there was no need for a Franks hearing and denied both of Johnson's motions. Johnson was then convicted after a two-day trial.

The Presentence Investigation Report set Johnson's base offense level at 20. The PSR documented an extensive criminal history including 30 criminal charges and over a dozen convictions from 1981 through 2017. But only one conviction was scored in calculating Johnson's criminal history category of II. The resulting guidelines range was 37 to 46 months. The district court determined that an upward variance was appropriate due to Johnson's extensive unscored criminal history and the need to provide adequate deterrence and protect the public from future crimes that Johnson might commit. The court also emphasized the proximity of the transactions to a local elementary school. After considering the statements of both parties, the advisory guidelines range, and the 18 U.S.C. § 3553(a) factors, the court sentenced Johnson to three concurrent 15-year sentences.

II.

Johnson first contends that the district court abused its discretion in failing to suppress evidence because his arrest was not supported by probable cause. Johnson did not assert below that his arrest was not supported by probable cause, but moved to suppress evidence based solely on alleged deficiencies in the search warrant Perdomo executed. Because this argument is raised for the first time on appeal, we review it for plain error. See United States v. Johnson, 777 F.3d 1270, 1277 (11th Cir. 2015). Under plain-error review, we may reverse the district court where (1) an error occurred; (2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously affects the integrity of a judicial proceeding. United States v. Schultz, 565 F.3d 1353, 1356-57 (11th Cir. 2009) (per curiam). "An error is not plain unless it is contrary to explicit statutory provisions or to on-point precedent in this Court or the Supreme Court." Id. at 1357.

"For probable cause to exist, . . . an arrest must be objectively reasonable based on the totality of the circumstances." United States v. Street, 472 F.3d 1298, 1305 (11th Cir. 2006) (quotation marks omitted). "This standard is met when the facts and circumstances within the officer's knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed . . . an offense." Id. (quotation marks omitted). An uncorroborated tip is insufficient, standing alone, to establish probable cause. United States v. Rollins, 699 F.2d 530, 533 (11th Cir. 1983). "However, if independent investigation by government agents yields information consistent with and...

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