                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-31-2004

USA v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1645




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 03-1645


                            UNITED STATES OF AMERICA

                                             v.

                                 CHARLES JOHNSON,
                                              Appellant


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Criminal No. 01-cr-00638
                          (Honorable Ronald L. Buckwalter)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  February 9, 2004
          Before: SCIRICA, Chief Judge, ROTH and McKEE, Circuit Judges

                                 (Filed: March 31, 2004)




                               OPINION OF THE COURT


SCIRICA, Chief Judge.

       Defendant Charles Johnson appeals his conviction and sentence, alleging that the

District Court erred in (1) denying his motion to suppress physical evidence recovered in

a search of his residence, and (2) in calculating his sentence. We will affirm.
                                                I.

       On March 7, 2001, state parole agents conducted a warrantless search of parolee

Charles Johnson’s residence and recovered items including a 9mm handgun, 19.2 grams

of cocaine base (“crack”), and a bulletproof vest.1 The search was prompted by a tip

from a confidential informant to Johnson’s parole agent. The informant told Johnson’s

parole agent that he had heard Johnson had a gun and was selling narcotics. The

informant also told Johnson’s parole agent that police had confiscated firearms and

narcotics from a South Eighth Street boarding house where Johnson formerly resided.

The agent subsequently confirmed the South Eighth Street raid information with local

police. The informant, who had been paid for giving another parole agent information in

the past, was paid for his tip about Johnson.

       The informant’s second tip about Johnson’s alleged illegal activities came on

March 7, 2001. Later that day the parole agent met with Johnson and explained that he

intended to search Johnson’s current Franklin Street residence because of the information

he had received that Johnson was selling drugs and possessed a handgun. Johnson

replied he no longer lived at that address. The agent confiscated Johnson’s keys and

drove with Johnson and two other parole agents to the Franklin Street house. The



   1
    Johnson had previously signed a Pennsylvania Board of Probation and Parole form
consenting to the conditions of his supervised release, which specifically included his
consent to searches of his person, property and residence without a warrant. As we find
that reasonable suspicion to search existed, we do not discuss consent.

                                                2
landlord there confirmed that the keys were to Johnson’s Franklin Street apartment and

that Johnson was currently a tenant. Having confirmed that Johnson lied about his

residence, the agents used the keys to obtain access to Johnson’s apartment where they

found the contraband.

       At trial, a jury convicted Johnson of: (1) possession of cocaine base with the intent

to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) possession of a

firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c);

and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§

922(g)(1) and 924(e)(1). Johnson was sentenced to 360 months’ imprisonment on

Counts One and Three, to run concurrently, and to 60 months’ imprisonment on Count

Two, to run consecutively. We have jurisdiction over Johnson’s appeal under 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742.

                                             II.

       The first issue is whether the District Court erred in admitting the physical

evidence recovered in the search of parolee Johnson’s apartment. The Fourth

Amendment permits parole officers to search a parolee’s residence without a warrant

where there is reasonable suspicion of parole violations. United States v. Hill, 967 F.2d

902, 909-911 (3d Cir. 1992). Johnson claims that the “reasonable suspicion” standard

was not satisfied where the search of his residence was prompted by an “anonymous” tip

conveyed to parole agents by a confidential informant. We exercise plenary review over


                                             3
the District Court’s application of Fourth Amendment law to the facts in this case.

United States v. Valentine, 232 F.3d 350, 353 (3d Cir. 2000). But we review the District

Court’s findings of fact under a clearly erroneous standard. United States v. Riddick, 156

F.3d 505, 509 (3d Cir. 1998).

       Whether “reasonable suspicion” exists is determined from the totality of the

circumstances. United States v. Arvizu, 534 U.S. 266, 273-74 (2002). In examining the

totality of circumstances known to the agents at the time of the search, courts are to give

“due weight” to the factual inferences and deductions drawn by the officers based on

their experience and specialized training. Id. The District Court found that Johnson’s

parole agent had a reasonable suspicion that Johnson was in violation of his parole based

on the confidential informant’s tips, the agent’s own investigation, and the agent’s

verification of the previous tip regarding police activity at Johnson’s former South

Eighth Street residence.

       An anonymous tip by itself is not sufficient to create reasonable suspicion, without

sufficient indicia of reliability. Florida v. J.L., 529 U.S. 266, 270 (2000). Although the

informant here (who was not anonymous) reported that he had “heard” the information

which he relayed, the parole agent knew enough about the informant himself to establish

that the tip was sufficiently trustworthy. The informant reported the tip in a face-to-face




                                             4
meeting with Johnson’s agent and was paid.2 Furthermore, the informant was known to

the parole agents as a reliable source based on previous verified tips. Finally, Johnson’s

parole agent himself confirmed one piece of the information provided by the informant

when he investigated the South Eighth Street raid.3 We agree with the District Court that

under the circumstances known to the parole agents at the time of the search, there was

reasonable suspicion to search Johnson’s apartment.

                                              III.

         Johnson also contends the District Court erred in calculating his sentence.

Because his record included several prior drug convictions, Johnson’s Presentence

Report noted that he was subject to an enhanced mandatory term of ten years and

maximum term of life imprisonment for Count One. But Johnson alleges that the Court

erred in invoking this enhanced sentence because the government failed to file a notice of

its intent to seek the enhancement under 21 U.S.C. § 851.4

   2
    See U.S. v. Valentine, 232 F.3d 350, 354-55 (3d Cir. 2000) (holding that tips
conveyed in person are more reliable than anonymous tips because “when an informant
relates information to the police face to face, the officer has an opportunity to assess the
informant's credibility and demeanor,” and because the informant, by coming forward in
person, exposes himself to retribution by the police if his information proves to be false.).
   3
    Prior to entering Johnson’s apartment, parole agents also knew that Johnson had lied
about his place of residence – this act, in itself, was a violation of Johnson’s parole.
Although the District Court did not explicitly cite this fact in support of its decision that
“reasonable suspicion” existed to justify the search, we believe this formed part of the
“totality of the circumstances” that supported the District Court’s determination.
   4
       21 U.S.C. § 851(1) reads:
                                                                                (continued...)

                                               5
          Johnson’s prior convictions qualified him as a career offender, so under 18

U.S.S.G. § 4B1.1 calculation of his base offense level depended on the maximum

possible penalty for his offense. Based on the enhanced sentence carrying a maximum

term of life imprisonment, the court calculated Johnson’s offense level to be 37. Johnson

argues that the appropriate maximum term, due to the government’s § 851 omission, was

40 years, and therefore the appropriate offense level was 34, under § 4B1.1(b)(B).

          Because Johnson failed to object to the Government’s procedural error at the time

of sentencing, we review under a “plain error” standard. United States v. Couch, 291

F.3d 251, 252-253 (3d Cir. 2002). The defendant bears the burden of showing that a

plain error occurred. United States v. Syme, 276 F.3d 131, 143 n.4 (3d Cir. 2002).

Under this standard,

          there must be (1) error, (2) that is plain, and (3) that affects substantial
          rights. If all three conditions are met, an appellate court may then exercise
          its discretion to notice a forfeited error, but only if (4) the error seriously
          affects the fairness, integrity, or public reputation of judicial proceedings.

United States v. Campbell, 295 F.3d 398, 404 (3d Cir. 2002) (quoting Johnson v. United

States, 520 U.S. 461, 466-67 (1997)).



   4
       (...continued)
           No person who stands convicted of an offense under this part shall be sentenced to
           increased punishment by reason of one or more prior convictions, unless before
           trial, or before entry of a plea of guilty, the United States attorney files an
           information with the court (and serves a copy of such information on the person or
           counsel for the person) stating in writing the previous convictions to be relied
           upon.

                                                 6
       In this case, we find no reason to disturb the District Court’s sentence. Johnson

was clearly aware that the government sought to use specific prior convictions to obtain

an enhanced sentence. Johnson’s indictment included a “Notice of Prior Convictions”

which listed five prior felony convictions for purposes of enhanced sentencing in

connection with his indictment on Count Three (felon in possession of a firearm). This

included three convictions for robbery and two for serious drug offenses. At one point,

Johnson’s counsel agreed to a change of language in the fifth conviction listed in this

“Notice of Prior Convictions” from “two counts of possession with intent to distribute a

controlled substance” to “two counts of delivery of a controlled substance.”

       At trial, the jury returned a supplemental verdict form in which it specifically

determined that Johnson was previously convicted of five prior violent felony and

serious felony drug offenses listed in the indictment. At no point did Johnson contest his

criminal history or allege that any of the prior convictions could not be counted. In a

similar case involving a plea agreement, the Court of Appeals for the Fifth Circuit held

that reversal under the “plain error” standard is not required where the defendant was on

notice that the government was seeking an enhanced sentence based on criminal history,

and where the defendant did not contest his criminal history. United States v. Dodson,

288 F.3d 153, 159-62 (5th Cir.), cert. denied, 537 U.S. 888 (2002). 5 Here, as in Dodson,


   5
    We also agree with the Fifth Circuit’s determination in Dodson that the government’s
inclusion of prior conviction information in an indictment and Presentence Report does
                                                                             (continued...)

                                             7
the government’s failure to file the § 851 information did not “seriously affect the

fairness and integrity of the judicial proceedings.” Id. at 162.

                                            IV.

       For the foregoing reasons, we will affirm the conviction and sentence.




   5
    (...continued)
not serve to satisfy the § 851 requirement. Rather, the protections of § 851 are subject to
waiver and forfeiture by a defendant. Here, Johnson’s failure to object resulted in
forfeiture.

                                              8
