USA v. Johnson

Filing

UNPUBLISHED OPINION FILED. [08-40162 Affirmed ] Judge: WED , Judge: JLW , Judge: JLD Mandate pull date is 12/20/2010; denying motion to appoint counsel filed by Appellant Mr. Tommy Lynn Johnson [6576632-2] [08-40162]

USA v. Johnson

Case: 08-40162 Document: 00511276102 Page: 1 Date Filed: 10/27/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
October 27, 2010 N o . 08-40162 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA P la in t if f -A p p e lle e v. T O M M Y LYNN JOHNSON D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court for the Eastern District of Texas, Tyler Division 6 :0 7 -C V -8 2

B e fo r e DAVIS, WIENER, and DENNIS, Circuit Judges. P E R CURIAM:* D e fe n d a n t Tommy Lynn Johnson appeals the denial of his motion under 2 8 U.S.C. § 2255 to set aside or correct his sentence. Specifically, Johnson c la im s that his counsel was ineffective for failing to raise a due process challenge t o the 25-year consecutive sentence imposed on the firearm charge because J o h n s o n was incorrectly notified that he faced a 10-year sentence on that count. We affirm.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

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I. Tommy Lynn Johnson was charged in a second superceding indictment w it h conspiracy to manufacture, distribute, and possess with intent to m a n u fa c t u r e and distribute 50 grams or more of methamphetamine; conspiracy t o possess pseudoephedrine knowing that it would be used to manufacture a c o n t r o ll e d substance; four counts of possession of pseudoephedrine with k n o w le d g e or intent that it would be used to manufacture a controlled substance; p o s s e s s io n of an unregistered short-barreled shotgun; and two counts of p o s s e s s io n of a firearm in furtherance of a drug trafficking offense. In a notice o f penalty filed with the indictment, the Government informed Johnson that the fir s t count of possession of a firearm in furtherance of a drug trafficking offense c a r r ie d a sentence of five years of imprisonment to be served consecutively to a n y other term of imprisonment, and that the second count of possession of a fir e a r m in furtherance of a drug trafficking offense carried a sentence of 10 years o f imprisonment to be served consecutively to any other term of imprisonment. At arraignment, the district court likewise informed Johnson that he faced a c o n s e c u t iv e sentence of 5 years of imprisonment on the first count of possession o f a firearm in furtherance of a drug trafficking offense and a sentence of 10 y e a r s of imprisonment on the second count of possession of a firearm in fu r t h e r a n c e of a drug trafficking offense. A jury found Johnson guilty on all counts. The district court sentenced J o h n s o n to 151 months of imprisonment on each of the drug counts and 120 m o n th s of imprisonment on the short-barreled shotgun count, the sentences to r u n concurrently. It additionally sentenced Johnson to the statutory minimum c o n s e c u t iv e sentences of five years of imprisonment on the first possession of a fi r e a r m in furtherance of a drug trafficking offense count and 25 years of im p r is o n m e n t on the second possession of a firearm in furtherance of a drug

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t r a ffic k in g offense count. 18 U.S.C. § 924(c)(1)(a)(i), (c)(1)(c)(i); Deal v. United S ta te s , 508 U.S. 129, 131-37 (1993) (holding that a "second or subsequent" c o n v ic t io n under § 924(c)(1) can be a second count at the same trial). These s e n te n c e s resulted in an overall sentence of 511 months of imprisonment. The d is t r ic t court also sentenced Johnson to a total of 5 years of supervised release. T h is court affirmed Johnson's convictions and sentences. United States v. J o h n s o n , 105 F. App'x 578, 581 (5th Cir. 2004). The Supreme Court vacated and r e m a n d e d for reconsideration in light of Booker. Johnson v. United States, 543 U .S . 1114, 1114 (2005). On remand, this court again affirmed Johnson's

c o n v ic t io n s and sentences. United States v. Johnson, 156 F. App'x 640, 642 (5th C ir . 2005). The Supreme Court denied certiorari. Johnson v. United States, 547 U .S . 1050, 1050 (2006). J o h n s o n subsequently filed the present § 2255 motion. In the § 2255 m o t io n , Johnson raised the following claims: (1) his counsel was ineffective for n o t challenging his 25-year consecutive sentence for the second firearm count on t h e basis that his prior conviction was not alleged in the indictment or found by t h e jury; (2) his counsel was ineffective for not challenging the constitutionality o f the Sentencing Guidelines at sentencing based upon the cases that led to the S u p r e m e Court's later ruling in Booker; (3) his counsel was ineffective for not a r g u in g that his conviction on the second firearm count was not a second or s u b s e q u e n t conviction under § 924(c)(1)(C)(i); (4) his counsel was ineffective for n o t arguing that his convictions for possession of pseudoephedrine with k n o w le d g e or intent that it would be used to manufacture a controlled substance w e r e not drug trafficking offenses that could serve as the predicates for his c o n v ic t io n s for possession of a firearm in furtherance of a drug trafficking o ffe n s e ; (5) the first count of the indictment was fraudulent because the G o v e r n m e n t knew that there was no evidence that he was involved in a 3

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c o n s p ir a c y involving 50 grams or more of methamphetamine and his counsel was in e ffe c t iv e for not raising this issue at trial; and (6) his due process rights were v io la t e d and his counsel was ineffective at sentencing for not arguing that s e n te n c in g him to 25 years of imprisonment on the second firearm count violated h is due process rights because both the Government and the district court n o tifie d him that the maximum sentence was 10 years of imprisonment. The magistrate judge (MJ) recommended that Johnson's § 2255 motion be d is m is s e d on its merits. Over Johnson's objections, the district court adopted the M J 's report and recommendation and dismissed Johnson's § 2255 motion. It sua s p o n t e denied Johnson a COA. Regarding Johnson's ineffective assistance of c o u n s e l and due process claim based on the incorrect notice of penalty, the d is t r ic t court ruled that the erroneous notice of penalty was "`regrettable, even in e x c u s a b le ,'" but failed to provide a basis for relief because the statute notified J o h n s o n of the possible penalty. (quoting United States v. McCalla, 38 F.3d 675, 6 7 9 (3d Cir. 1994). In support of its conclusion, the district court cited to

M c C a lla and United States v. Perez-Torres, 15 F.3d 403, 406 (5th Cir. 1994), two c a s e s in which the court rejected a due process challenge to a sentence for illegal r e e n tr y into the United States following deportation that was based upon an e r r o n e o u s notice of the maximum penalty for illegal reentry provided to the d e fe n d a n t when he was deported. J o h n s o n filed a timely notice of appeal from the denial of his § 2255 m o t io n . This court granted Johnson a COA on his claim "that his counsel was in e ffe c t iv e for not arguing at sentencing that he could not be sentenced to 25 y e a r s of imprisonment on the second firearm count because he had been in c o r r e c t ly notified that he faced only a sentence of 10 years of imprisonment on t h a t count." United States v. Johnson, No. 08-40162, slip op. at 2 (5th Cir. Mar. 1 0 , 2009) (unpublished).

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II. Johnson argues that his counsel was ineffective at sentencing for failing t o challenge the 25-year sentence on the second possession of a firearm in fu r t h e r a n c e of a drug trafficking offense count on due process grounds because J o h n s o n was incorrectly notified that he could receive only a 10-year sentence o n that count. He maintains that the district court's reliance upon McCalla and P e r e z -T o r r e s is misplaced because in both of those cases the defendant was in fo r m e d of the correct maximum sentence prior to being convicted. He

m a in t a in s that the incorrect penalty notification by the Government and the d is t r i c t court amounted to a decision to prosecute him for violating § 924(c)(1)(B)(i) instead of violating § 924(c)(1)(C)(i). Johnson contends that his c a s e is similar to United States v. LaBonte, 520 U.S. 751 (1997), where the Court n o te d that pursuant to 21 U.S.C. § 851, enhanced penalties for repeat drug o ffe n s e s are only applicable if the defendant is given notice prior to trial or the e n tr y of a guilty plea. J o h n s o n additionally raises a new claim that his counsel was ineffective f o r not raising the issue that applying a sentence enhancement under § 924(c)(1)(B)(i) for Johnson's firearm being a short-barreled shotgun was im p r o p e r because the type of gun was an element of the offense that was r e q u ir e d to be charged in the indictment and proven beyond a reasonable doubt t o a jury. As Johnson has not been granted a COA on this issue, this court does n o t have jurisdiction to consider it. See Larry v. Dretke, 361 F.3d 890, 896 (5th C ir . 2004) (holding that this court has jurisdiction to consider only those issues o n which a COA has been granted). T o demonstrate that he received ineffective assistance of counsel, Johnson m u s t show, under the two-prong test enunciated in Strickland v. Washington, 4 6 6 U.S. 668, 687 (1984), that counsel's assistance was deficient and that the

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d e fic ie n c y prejudiced his defense.

A failure to establish either deficient

p e r fo r m a n c e or resulting prejudice defeats the claim. Id. at 697. To demonstrate d e fic ie n t performance, a habeas applicant must show that "counsel made errors s o serious that counsel was not functioning as the `counsel' guaranteed the d e fe n d a n t by the Sixth Amendment." Id. at 687. To demonstrate prejudice, a " d e fe n d a n t must show that there is a reasonable probability that, but for c o u n s e l's unprofessional errors, the result of the proceeding would have been d iffe r e n t ," id. at 694, and that counsel's errors were so serious that they r e n d e r e d the proceedings unfair or the result unreliable. Lockhart v. Fretwell, 5 0 6 U.S. 364, 372 (1993). T h is court has previously considered a case in which three defendants w e r e charged with possession of a firearm in furtherance of a drug trafficking o ffe n s e , notified at arraignment that they faced a five-year sentence pursuant t o § 924(c), which would implicate subsection 924(c)(1)(A)(i), and then sentenced t o 30 years of imprisonment pursuant to § 924(c)(1)(B)(ii) because the firearm t h e y possessed was a machine gun. See United States v. Gonzales, 121 F.3d 928, 9 3 4 (5th Cir. 1997). The defendants argued that the imposition of the sentence e n h a n c e m e n t for the firearm being a machine gun violated their due process r ig h t s because it was not alleged in the indictment and they were not notified t h a t they faced the sentence enhancement at arraignment. Id. at 940-41. This c o u r t held that the 30-year sentence mandated by § 924(c)(1)(B)(ii) when a d e fe n d a n t possesses a machine gun was a sentence enhancement, not an e le m e n t of the offense, and did not need to be charged in the indictment. Id. at 9 4 1 . It further held that because the machine gun enhancement was sentence e n h a n c e m e n t , not an element of the offense, the Due Process Clause was s a t is fie d because the defendants were informed of the enhancement prior to

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s e n te n c in g even though they were not informed of the enhancement prior to t r ia l. Id. T h e Supreme Court has subsequently overruled the portion of this court's r u lin g in Gonzales holding that the machine gun provision in § 924(c)(1)(B) is a s e n te n c in g factor and held that the machine gun provision is an element of the o ffe n s e . United States v. O'Brien, 130 S. Ct. 2169, 2180 (2010). In the present c a s e , however, Johnson's sentence enhancement under § 924(c)(1)(C)(i) was b a s e d solely upon a prior conviction, not the type of weapon involved under § 9 2 4 (c )(1 )(B ) , and was therefore a sentence enhancement rather than an element o f the offense.1 To distinguish a sentence enhancement from an element of the c r im e , courts are directed to examine (1) the statute's language and structure; (2 ) tradition; (3) the risk of unfairness, (4) severity of the sentence, and (5) le g is la t iv e history. Id. at 2175. The factors of "tradition" and "risk of Almendarez-Torres v.

u n fa ir n e s s " dominate the analysis in this situation.

U n ite d States, 523 U.S. 224, 239-47 (1998), analyzed 8 U.S.C. § 1326, which im p o s e s a greater sentence on aliens who reenter the United States after being d e p o r t e d following conviction for an aggravated felony, under similar factors. In deciding that § 1326 was a sentencing factor, the court noted at the outset

18 U.S.C. § 924(c) reads in pertinent part (1) . . . (B) If the firearm possessed by a person convicted of a violation of this subsection-(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person shall be sentenced to a term of imprisonment of not less than 10 years; or (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years. (C) In the case of a second or subsequent conviction under this subsection, the person shall-(i) be sentenced to a term of imprisonment of not less than 25 years; and (ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm muffler, be sentenced to imprisonment for life. The type of gun described in § 924(c)(1)(B) is thus an element of the offense under O'Brien. The sentence enhancement based on a prior conviction under § 924(c)(1)(C) is not. 7

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t h a t the subject matter of the provision is recidivism, which "is as typical a s e n te n c in g factor as one might imagine." Id. at 230. The court also noted that lo w e r courts uniformly interpret such statutes as setting forth sentencing factors a n d that it had found no statute that clearly makes recidivism an offense e le m e n t . Id. Finally, the contrary interpretation -- a substantive criminal offense -- risks unfairness. If subsection (b)(2) sets forth a separate crime, t h e Government would be required to prove to the jury that the d e fe n d a n t was previously deported "subsequent to a conviction for c o m m is s io n of an aggravated felony." As this Court has long r e c o g n iz e d , the introduction of evidence of a defendant's prior crimes r is k s significant prejudice. Id. at 234-235. This analysis applies equally to § 924(c)(1)(C)(i). O'Brien also r e c o g n iz e s that the "recidivist provisions in (C)(i) and (ii) . . . are typically s e n te n c in g factors as well". 130 S.Ct. at 2180. Nothing related to the statute's la n g u a g e and structure, the severity of the sentence or the legislative history in d ic a te s a Congressional intention to the contrary. Therefore, § 924(c)(1)(C)(i) is a sentence enhancement not an element of the offense. Accordingly, because Johnson was informed of the sentence enhancement p r io r to sentencing in the presentence report, the application of the sentence e n h a n c e m e n t under § 924(c)(1)(C)(i) did not violate the Due Process Clause d e s p it e the incorrect notice of punishment given at arraignment. See Gonzales, 1 2 1 F.3d at 941. As the enhancement for Johnson's having a prior conviction w a s a sentence enhancement, not an element of the offense, the Government did n o t need to include it in the indictment. See id. at 940-41. Accordingly,

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J o h n s o n 's assertion that the Government chose to prosecute him under § 924(c)(1)(B)(i) instead of § 924(c)(1)(C)(i) is without merit. See id. at 940-41.2 J o h n s o n attempts to distinguish Gonzales by arguing that the issue in G o n z a le s was whether the enhancement was alleged in the indictment, not w h e t h e r the defendants were incorrectly informed of the possible sentence at a r r a ig n m e n t . This argument is without merit as one of the defendants in

G o n z a l e s raised, without success, the exact argument that Johnson is raising: t h a t the application of the sentence enhancement violated the Due Process C la u s e because he was not notified of the sentence enhancement at arraignment. See Gonzales, 121 F.3d at 941. While Johnson further notes that the district c o u r t did not rely on Gonzales, this does not affect the resolution of this appeal, a s this court may affirm based on any ground apparent in the record. See M a n g a r o o v. Nelson, 864 F.2d 1202, 1204 n.2 (5th Cir. 1989). Finally, Johnson's r e lia n c e upon LaBonte is misplaced, as that case involved sentence e n h a n c e m e n t s under 21 U.S.C. § 851, and the language of that statute requires n o tific a t io n of the enhancement prior to trial, while the language of § 924(c)(1)(C)(i) does not. See LaBonte, 520 U.S. at 754 n.1. A s shown above, the argument that Johnson could not be sentenced to 25 y e a r s of imprisonment on the second possession of a firearm in furtherance of a d r u g trafficking offense count because he was not notified of the correct possible s e n te n c e at arraignment is without merit. See Gonzales, 121 F.3d at 941. Therefore, Johnson's counsel was not ineffective for not raising this argument.

Although the government points out that it offered Johnson a plea agreement including a sentence of 10 years, Johnson does not argue that the error in the notice of possible sentence precluded him from making an informed decision on the plea deal. The possible sentence that Johnson was facing on the drug and conspiracy counts was up to 150 years, if imposed consecutively, before considering the two firearm counts that required consecutive sentences of five and ten years individually.

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S e e Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (holding that failure to r a is e meritless objection is not ineffective assistance). III. Johnson has moved for appointment of counsel on appeal to participate in o r a l argument. Counsel should be appointed in a habeas appeal only if the in t e r e s t s of justice so require. See Schwander v. Blackburn, 750 F.2d 494, 502 (5 t h Cir. 1985). As Johnson's appeal is without merit and oral argument is not n e c e s s a r y , Johnson has not shown that the interests of justice require the a p p o in tm e n t of counsel. Johnson's motion for appointment of counsel is hereby d e n ie d . IV . In summary, the district court had no duty at arraignment to advise J o h n s o n of the possible 25-year sentence enhancement that might apply to the s e c o n d firearm charge as opposed to the statutory maximum that applied to the c o u n t on a stand alone basis. At that point in the proceedings the district court is not in a position to warn of possible sentence enhancements because it doesn't k n o w which may apply until the defendant is convicted or pleads guilty. Consequently, counsel was not ineffective for failing to argue that the 25-year s e n te n c e violated Johnson's due process rights despite the earlier notification t h a t the maximum sentence on that count was 10 years of imprisonment. F o r the foregoing reasons, the denial of Johnson's § 2255 motion is A F F IR M E D and Johnson's motion for appointment of counsel is DENIED.

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