US v. Bruce Johnson

Filing 920100128

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5152 UNITED STATES OF AMERICA, Plaintiff Appellee, v. BRUCE JOHNSON, Defendant Appellant. No. 08-5194 UNITED STATES OF AMERICA, Plaintiff Appellee, v. CHARLES JONES, Defendant Appellant. Appeals from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O'Grady, District Judge. (1:08-cr-00240-LO-2; 1:08-cr-00240-LO-3) Submitted: January 4, 2010 Decided: January 28, 2010 Before MICHAEL and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Christopher B. Amolsch, LAW OFFICE OF CHRISTOPHER AMOLSCH, Alexandria, Virginia; Mark H. Bodner, Fairfax, Virginia, for Appellants. Dana J. Boente, United States Attorney, Lawrence J. Leiser, Assistant United States Attorney, Alexandria, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: A jury convicted Bruce Johnson and Charles Jones of conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. 841(a)(1), 846 (2006). The district court sentenced Johnson to 135 months' On appeal, on his imprisonment and Jones to 188 months' imprisonment. Johnson argues that of the the district court's limitation cooperating cross-examination Government's witness violated his Sixth Amendment right to confront witnesses against him. Jones appeals his sentence, arguing the district court's of a two-level enhancement for possession of a application firearm was erroneous and that his sentence is unreasonable. The two appeals have been consolidated. affirm. Johnson's sole claim is that the district court erred in limiting his cross-examination of the Government's Finding no error, we cooperating witness, Jubal Culver, about potential sources of bias. A district court's limitation on a defendant's cross-examination of a Government witness is reviewed for abuse of discretion. 2006). United An States improper v. Smith, of 451 an F.3d 209, 220 to (4th Cir. denial opportunity cross-examine a witness is subject to harmless error review. United States v. Turner, 198 F.3d 425, 430-31 (4th Cir. 1999). While the Confrontation Clause protects a defendant's right to 3 cross-examine a witness regarding potential bias, this right to cross-examination is not unlimited. 475 U.S. 673, 678-79 (1986). Delaware v. Van Arsdall, Rather, trial judges "retain wide latitude . . . to impose reasonable limits" on cross-examination based on concerns such as harassment, prejudice, confusion of the issues, and relevance. Id. at 679. A district court does not abuse its discretion by prohibiting a defendant from asking a cooperating witness about the specific sentence the witness faced absent cooperation or the specific sentence the witness hoped for due to any cooperation. United States v. Cropp, 127 F.3d 354, 358-59 (4th Cir. 1997). whether the defendant is permitted The relevant question is to question a witness' "subjective understanding of his bargain with the government[,] for it is this understanding which is of probative value on the issue of bias." United States v. Ambers, 85 F.3d 173, 176 (4th Cir. 1996) (quoting Hoover v. Maryland, 714 F.2d 301, 305, 306 (4th Cir. 1983) (internal quotation marks omitted)). We have reviewed the transcript and find the district court did not abuse its discretion in limiting Johnson's crossexamination of Culver. Johnson was given an opportunity to extensively cross-examine the witness on the terms and potential benefits of his plea agreement. We find the district court permissibly restricted questioning of Culver as to the actual sentence an additional gun charge would have carried. 4 Finally, even if this court were to assume that the district court's limitation on Johnson's cross-examination of the witness was an abuse of discretion, we find any error by the district court was harmless in light of the evidence presented at trial. Accordingly, Johnson's claim is without merit. Jones raises two claims on appeal. First, Jones claims the district court erred in enhancing his base offense level two levels pursuant to U.S. Sentencing Guidelines Manual 2D1.1(b)(1) (2007) ("USSG") based on the firearms possessed by his co-conspirators. adduce a scintilla According to Jones, the Government did not of evidence to show that he had advance knowledge, or should have known, that guns would be carried or used by his co-conspirators. Whether the district court properly applied the two-level USSG 2D1.1(b)(1) enhancement is a factual question reviewed for clear error. See United States v. McAllister, 272 F.3d 228, 234 (4th Cir. 2001). of review, this court will Under a clear error standard only if "left with the reverse definite and firm conviction that a mistake has been committed." United States v. Stevenson, 396 F.3d 538, 542 (4th Cir. 2005) (quoting Anderson v. Bessemer City, 470 U.S. 564, 573 (1985)). According to USSG 2D1.1(b)(1), a district court is to increase a defendant's base offense level two levels "[i]f a dangerous weapon (including a firearm) was possessed." 5 USSG 2D1.1(b)(1). "The adjustment should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." USSG 2D1.1(b)(1), cmt. n.3. The enhancement is appropriate when "`the weapon was possessed in connection with drug activity that was part of the same course of conduct or common scheme as the offense of conviction.'" McAllister, 272 F.3d at 233-34 (quoting United States v. Ortega, 94 F.3d 764, 767 (2d Cir. 1996)). It is well established that a conspirator is liable for all reasonably foreseeable acts of a co-conspirator done in furtherance of the conspiracy. Pinkerton v. United States, 328 U.S. 640, 646-47 (1946); United States v. Cummings, 937 F.2d 941, 944 (4th Cir. 1991). evidence of As this court has noted, "[a]bsent . . . it [is] fairly exceptional circumstances, inferable that a codefendant's possession of a dangerous weapon is foreseeable to a defendant with reason to believe that their collaborative controlled criminal for venture a large includes amount an of exchange cash." of substances United States v. Kimberlin, 18 F.3d 1156, 1160 (4th Cir. 1994) (quoting United States v. Bianco, 922 F.2d 910, 912 (1st Cir. 1991)). We have reviewed the material submitted by the parties and find that it was reasonably foreseeable to Jones that his co-conspirators would be in possession of dangerous weapons. See United States v. Lomax, 293 F.3d 701, 706 (4th Cir. 2002). 6 Moreover, Jones reasonably should have known that his co- conspirators were in possession of dangerous weapons as he came to the drug deal armed not with a stun err gun. in Accordingly, applying the the USSG district court did clearly 2D1.1(b)(1) enhancement. See USSG 1B1.3(a)(1)(B). Finally, Jones contends his sentence is unreasonable. This court reviews a sentence imposed by a district court under a deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Evans, 526 F.3d 155, 161 (4th court Cir. must 2008). first In ensure reviewing that the a sentence, district the court appellate committed no procedural error, such as improperly calculating the Guidelines range, failing to consider the 3553(a) factors, or failing to adequately explain the chosen sentence. 552 U.S. at 51. If there are no procedural errors, Gall, the appellate court then considers the substantive reasonableness of the sentence. When Id. rendering a sentence, the district court must make an individualized assessment based on the facts presented and state in open court the particular reasons that support its chosen sentence. (4th Cir. 2009). enough to satisfy United States v. Carter, 564 F.3d 325, 328 This requires the district court to set forth this court that the district court has a reasoned basis for its decision and has considered the parties' 7 arguments. Id. The district court, however, is not required to See "robotically tick through" every subsection of 3553(a). United States v. Johnson, 445 F.3d 339, 345 (4th Cir. 2006). When reviewing a sentence on appeal, we presume a sentence within the properly calculated Guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007). Jones claims that his sentence is unreasonable because of the disparity between his sentence and that of Culver. Culver, however, unlike Jones, pled guilty and cooperated with the Government. See United States v. Abu Ali, 528 F.3d 210, 263-64 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312 (2009). Additionally, Jones maintains the district court failed to adequately explain its consideration of the 18 U.S.C. 3553(a) (2006) factors in fashioning his sentence. The district court provided a sufficiently detailed explanation for Jones' sentence and was not required to exalt form over substance by robotically ticking through each 3553(a) factor. 345. end Johnson, 445 F.3d at The district court determined that a sentence at the low of Jones' and properly Jones does calculated not Guidelines the range was of appropriate overcome presumption reasonableness accorded his within-Guidelines sentence. Accordingly, we deny Jones' motion to file a pro se supplemental court. brief and affirm the judgments of the district We dispense with oral argument as the facts and legal 8 contentions are adequately presented in the materials before the court and argument would not aid the decisional process. AFFIRMED 9

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