United States v. Johnson
| Decision Date | 06 January 2021 |
| Docket Number | No. CR 18-0220 JB,CR 18-0220 JB |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. NATHANIEL DONALD JOHNSON, Defendant. |
| Court | U.S. District Court — District of New Mexico |
THIS MATTER comes before the Court on the Defendant's Objections to the Presentence Investigation Report, filed August 3, 2020 (Doc. 108)("Objections"). The primary issues are: (i) whether Defendant Nathaniel Johnson's 1997 conviction for assault with intent to murder, committed when he was seventeen years old, should (a) count towards his criminal history score, and (b) act as a predicate for designating Johnson as a career offender; (ii) whether Johnson's 2008 and 2013 Michigan drug distribution convictions qualify as controlled substance offenses under § 4B1.2 of the United States Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines"); (iii) whether Johnson's 2008 attempt conviction is a controlled substance offense; and (iv) whether Johnson's 2013 conviction for possession with intent to deliver marijuana is a controlled substance offense, where Michigan law at the time of Johnson's offense criminalizes hemp distribution, but the current Controlled Substances Act, 21 U.S.C. § 802(6) ("CSA"), does not. The Court concludes that: (i) Johnson's conviction for assault with intent to murder counts towards his criminal history score and acts as a predicate for designating Johnson as a career offender, because, although Johnson was seventeen years old at the time of the offense, he was convicted as an adult; (ii) Johnson's Michigan drug distribution convictions qualify as controlled substance offenses, because the state statute at issue is a categorical match with the U.S.S.G.; (iii) Johnson's attempt conviction is a controlled substance offense, because Application Note 1 to U.S.S.G. § 4B1.2 explains that attempt convictions qualify as controlled substance offenses; and (iv) Johnson's conviction for possession with intent to deliver marijuana is a controlled substance offense, because the state and federal laws at issue (a) were a categorical match at the time of the offense and conviction; and (b) are a categorical match currently. The Court, therefore, overrules Johnson's Objections.
The Court takes its facts from the Plea Agreement, filed April 2, 2020 (Doc. 91)("Plea Agreement"), the Sentencing Memorandum by Nathaniel Donald Johnson, filed September 29, 2020 (Doc. 119), and the Presentence Investigation Report, filed June 1, 2020 (Doc. 95)("PSR").
Johnson's first conviction occurred in state court 1997, when he was seventeen years old. See PSR ¶ 27, at 5. Johnson "assaulted the victims" "with a pistol" "with intent to commit murder." PSR ¶ 27, at 5. Johnson committed the assault in "response to violent threats from [a] gang member" at age seventeen. Johnson Memo at 1-2. In 1998, Johnson was sentenced to nine to twenty-two years in custody for the assault. See PSR ¶ 27, at 5. Johnson was released on parole for the assault conviction on September 21, 2005. See PSR ¶ 27, at 5. Although Johnson earned his General Educational Development ("GED") while in custody for the 1997 conviction and continued his education upon release, he had difficulty obtaining a job and struggled financially. See Johnson Memo at 2.
Subsequently, Johnson was arrested in April, 2006, for trespass in Ann, Missouri, and was sentenced to five days in custody. See PSR ¶ 28, at 6. In December, 2007, Johnson was convicted of attempted possession with intent to distribute heroin. See PSR ¶ 29, at 6. He was released on parole on September 9, 2011. See PSR ¶ 29, at 6. Then, on May 23, 2012, Johnson committed "controlled substance/delivery/manufacture marijuana" in Detroit, Michigan. PSR ¶ 30, at 6. On October 10, 2013, he received a sentence of six months in custody, with two years' probation. See PSR ¶ 30, at 6. He was released on probation, but during probation he "violated his terms of probation and was ordered to attend anger management classes" in 2015. PSR ¶ 30, at 7.
During his time on probation, Johnson cared for his aging parents, who are now deceased. See Johnson Memo at 2. His mother died of cancer in 2013, which was "especially hard on him because she had been a key source of support throughout his life." Johnson Memo at 2. After his mother's death, Johnson moved in with his father, who struggled with heroin addiction. See Johnson Memo at 2. Johnson made multiple unsuccessful attempts to stop his father from using heroin. See Johnson Memo at 3-4. His father ultimately passed away, and Johnson moved to Arizona, where he continued to struggle financially. See Johnson Memo at 4. On May 23, 2017, sometime after his father's death, Johnson smoked marijuana on a bus in Vinita, Oklahoma. See PSR ¶ 31, at 7. Police searched Johnson's bag, and located a firearm and two containers of marijuana. See PSR ¶ 31, at 7. Johnson was sentenced to "fifteen years custody, all suspended," and "two years probation." PSR ¶ 31, at 7.
Also in 2017, Johnson began a relationship with Kiarra Height, which was "a source of pride and happiness for him, especially given the contrast with his previous marriage." Johnson Memo at 4. Johnson planned to have a family with Height, and they hoped to buy a trailer. See Johnson Memo at 4. Consequently, "[w]hen Mr. Johnson received a call from an acquaintance offering an opportunity to earn a few hundred dollars to transport drugs," Johnson decided to accept the offer to save money for a deposit on the trailer. Johnson Memo at 4.
On January 5, 2018, Johnson, aged thirty-seven, was travelling on a Greyhound bus from Phoenix, Arizona, to Joplin, Missouri, with a backpack. See PSR ¶ 8 at 3; Plea Agreement at 4. The bus had a layover in Albuquerque, New Mexico. See PSR ¶ 8 at 3. Johnson got off the bus during the stop, then re-boarded the bus, and took his seat. See Plea Agreement at 4. A Drug Enforcement Administration ("DEA") agent approached Johnson. See PSR ¶ 8 at 3; Plea Agreement at 4. After denying initially that he had any luggage with him, Johnson allowed the agent to search his backpack. See PSR ¶ 8 at 3; Plea Agreement at 4. The agent found two bundles of methamphetamine, amounting to 875 grams in total. See PSR ¶ 9 at 3; Plea Agreement at 4. Johnson's crime "was motivated by financial hardship and the expected benefit to him was extremely limited." Johnson Memo at 1. Specifically, Johnson expected to transport under two pounds of methamphetamine for under $500.00. See Johnson Memo at 1; PSR ¶ 10 at 4 (). Johnson pled guilty to "Possession with Intent to Distribute 500 Grams and More of a Mixture or Substance Containing Methamphetamine" under 21 U.S.C § 841(a)(1); § 841(b)(1)(A). PSR ¶ 3, at 3. There "is nothing in this case or his criminal history to suggest that Mr. Johnson is a serious drug trafficker." Johnson Memo at 5. Moreover, Johnson has not been convicted of any violent offenses since age seventeen. See Johnson Memo at 4.
The United States Probation offices ("USPO") filed the PSR on June 1, 2020. See PSR at 1. The PSR states that Johnson "is a career offender, therefore, the criminal history category is VI." PSR ¶ 34, at 7 (citing U.S.S.G. § 4B1.1(b)). The PSR explains that Johnson "has at least two prior felony convictions of either a crime of violence or a controlled substance offense; therefore, he is classified as a Career Offender." PSR ¶ 11, at 16. Johnson filed Objections in response to the PSR. See Objections at 1.
In his Objections, Johnson disputes several conclusions in the PSR. See Objections at 1-8. First, Johnson argues that his conviction for "assault excluding sexual (assault with intent to murder)" and "felony firearm," PSR ¶ 27, at 5, should not be counted, because he was seventeen years old when he committed the offense, see Objections at 1. Johnson argues that this conviction should only be counted "if he was released from custody within five years of the commencement of the instant offense." Objections at 1 (citing U.S.S.G. §§ 4A1.2(e)(3)-(4); 4A1.2(d)(2)). Johnson notes that he was released from prison for the assault charges in 2011, and that the present offense occurred in 2018. See Objections at 2. Johnson maintains, therefore, that his assault conviction should "not be counted for purposes of criminal history and cannot be a predicate for a career offender designation." Objections at 2.
Next, Johnson argues that his Michigan drug distribution convictions do not qualify as a "'controlled substance offense'" under the U.S.S.G. Objections at 3 (quoting United States v. McKibbon, 878 F.3d 967, 971 (10th Cir. 2017)). The relevant provision states:
The term "controlled substance offense" means an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense.
U.S.S.G. § 4B1.2. Johnson asks the Court to apply a categorical analysis, and determine that, because Michigan's "statute of conviction encompasses a broader range of conduct than the conduct described in section 4B1.2(b), then the state conviction does not meet the Guidelines' definition and is not a categorical match." Objections at 3. Johnson notes that he was convicted in Michigan under Mich. Comp. Laws Ann. § 333.7401(2)(d)(iii) on two separate occasions. See Objections at 3. The first incident involved heroin, and the second incident involved marijuana. See Objections at 3. The state law at issue makes it a crime to "'manufacture, create, deliver, or possess with intent to manufacture, create, or deliver a controlled substance . . ....
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