USA v. Joseph Johnson

Filing

UNPUBLISHED OPINION FILED. [09-10966 Affirmed ] Judge: JLW , Judge: ECP , Judge: PRO Mandate pull date is 11/15/2010 for Appellant Joseph Deshun Johnson [09-10966]

USA v. Joseph Johnsonse: 09-10966 Ca

Document: 00511272538 Page: 1 Date Filed: 10/25/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-10966 S u m m a r y Calendar October 25, 2010 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. J O S E P H DESHUN JOHNSON, also known as Deshun Joseph Johnson, also k n o w n as Buck, 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 fo r the Northern District of Texas U S D C No. 4:08-CR-98-33

B e fo r e WIENER, PRADO and OWEN, Circuit Judges. P E R CURIAM:* J o s e p h Deshun Johnson pleaded guilty to conspiracy to possess with the in t e n t to distribute more than five kilograms of cocaine. The district court s e n te n c e d Johnson to a below-guidelines sentence of 324 months of im p r is o n m e n t . Johnson appeals his sentence, arguing that the district court c le a r ly erred in adopting the presentence report's (PSR's) finding that he c o n v e r t e d a majority of his powder cocaine into crack cocaine.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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Case: 09-10966 Document: 00511272538 Page: 2 Date Filed: 10/25/2010 No. 09-10966 T h e Government argues that Johnson's argument is not reviewable on a p p e a l because he withdrew his objection to the determination at the sentencing h e a r in g . Perceiving no intentional withdrawal of Johnson's objection to the PSR, w e reject the Government's assertion of a waiver. See United States v. ArvisoM a ta , 442 F.3d 382, 384 (5th Cir. 2006). Turning to the merits of the appeal, we review the district court's factual fin d in g for clear error. United States v. Villanueva, 408 F.3d 193, 203 & n.9 (5th C ir . 2005). "In making its factual findings for sentencing, a district court may a d o p t the findings of the PSR without additional inquiry if those facts have an e v id e n t ia r y basis with sufficient indicia of reliability and the defendant does not p r e s e n t rebuttal evidence or otherwise demonstrate that the information is m a t e r ia lly unreliable." United States v. Ford, 558 F.3d 371, 377 (5th Cir. 2009) (in t e r n a l quotation marks and citation omitted). The information contained in t h e offense conduct portion of Johnson's PSR was gleaned from, inter alia, " in v e s tig a t iv e material prepared and compiled by FBI and ATF agents/TFOs [t a s k force officers], DPS deputies, and Arlington and Fort Worth Police D e p a r t m e n t officers." The PSR stated that the probation officer had personally c o n d u c t e d interviews with two FBI Special Agents and an ATF Special Agent, a ll of whom were identified by name. Further, in response to Johnson's

o b je ction , the probation officer stated that her information was derived from "the in v e s t ig a t iv e materials and the reports of several reliable codefendants." The PSR was supported by an adequate evidentiary basis with sufficient in d ic ia of reliability. Johnson did not present any rebuttal evidence; nor did he demonstrate that the information was materially unreliable. The district court t h u s did not clearly err in adopting the finding made in the PSR. See Ford, 558 F .3 d at 377. AFFIRMED.

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