                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-21-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4958




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                                                           NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                    No. 06-4958


                          UNITED STATES OF AMERICA

                                          v.

                                KERION JOHNSON,
                                   a/k/a Black

                                                           Appellant


                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                             (D.C. Crim. No. 06-00029)
                    Honorable James M. Munley, District Judge


                      Submitted under Third Circuit LAR 34.1(a)
                                 December 14, 2007

    BEFORE: RENDELL, GREENBERG, and VAN ANTWERPEN, Circuit Judges

                             (Filed: December 21, 2007)


                             OPINION OF THE COURT


GREENBERG, Circuit Judge.

      This matter comes on before the court on an appeal from a judgment of conviction

and sentence entered on November 30, 2006, following appellant Kerion Johnson’s plea
of guilty to a single count of a multi-count indictment pursuant to a plea agreement. The

appeal is limited to the sentence. A grand jury indicted Johnson for conspiracy to make

false statements to a federal firearms dealer in connection with the acquisition of firearms

in violation of 18 U.S.C. §§ 371 and 922(a)(6), conspiracy to distribute and possess with

intent to distribute in excess of five grams of cocaine base (“crack”) in violation of 21

U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), distribution of more than five grams of

cocaine base (“crack”) in violation of 21 U.S.C. § 841(a)(1), and two counts of using a

communication facility to cause or facilitate a drug trafficking felony in violation of 21

U.S.C. § 843(b). Johnson pleaded guilty to conspiracy to distribute and possess with

intent to distribute in excess of five grams of cocaine base (“crack”) and the court

ultimately dismissed the indictment’s remaining counts.

       The presentence report indicated that Johnson’s total offense level was 27 which,

with his criminal history category of IV, yielded a guidelines range of 100 to 125 months.

However, at the sentencing the court made an unchallenged determination that Johnson’s

total offense level was 25 which, with his criminal history category of IV, yielded a

guidelines range of 84 to 105 months. At the sentencing Johnson sought consideration by

reason of the so-called 100-to-1 sentencing discrepancy between crack and powder

cocaine. In fact, as the Supreme Court so recently has explained, the “100-to-1 ratio

yields sentences for crack offenses three to six times longer than those for powder

offenses involving equal amounts of drugs.” Kimbrough v. United States, No. 06-6330,



                                              2
2007 WL 4292040, at *6 (U.S. Dec. 10, 2007).

      The District Court in sentencing took into account all of the factors set forth in 18

U.S.C. § 3553(a) and then pointed out the following:

              Mr. Johnson is 32 years of age, and he was involved in the
      distribution of quantities of crack cocaine in Monroe County. He has a
      significant drug history and a criminal record. He has spent a considerable
      amount of time in prison on previous drug convictions, only to engage in
      this similar conduct, similar behavior.

             For his 32 years, he sports two adjudications when he was a juvenile
      and his number of convictions are rank – eight adult convictions.

            In 2005, in this matter, the FBI and the state police investigated 12
      purchases of firearms and drug trafficking in Monroe County. And from
      2005, April, to October 13th, purchases of firearms were made on behalf of
      Mr. Johnson from various firearm dealers in Northeastern Pennsylvania.
      Guns were taken by Johnson to Trenton, sold to others in housing projects.
      On those occasions, females received a quantity of crack cocaine from
      Johnson in exchange for firearms.

             The parties have stipulated that Johnson was involved in the
      distribution and possession with intent to distribute between 5 and 35 grams
      of cocaine base; and that he possessed firearms in connection with his
      distribution activities.

            And I’m in agreement with the government’s counsel; this
      combination is deadly, you know, the guns and the crack cocaine, bad stuff,
      you know.

              And Mr. Johnson, I don’t have much more to say except that this is
      really serious business, that combination.

Sentencing Hr’g Tr. 27-28, Nov. 20, 2006. The court then sentenced Johnson to a

custodial term of 102 months to be followed by a term of supervised release of five years.

Johnson appeals, raising the following point:

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       The District Court Erred in Imposing Sentence Without Adequately
       Articulating its Consideration of the Factors in Section 3553(a) of Title 18
       of the United States Code, 18 U.S.C. § 3553(a), Particularly in Relation to
       the Disparity under the Sentencing Guidelines Between the Powder and
       Crack Forms of Cocaine.

Appellant’s br. at 10.

       The District Court had jurisdiction under 18 U.S.C. § 3231 and we have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). The parties agree that

inasmuch as Johnson did not make any objection to the adequacy of the District Court’s

articulation of the 18 U.S.C. § 3553(a) factors at the sentencing we review the sentence

on the basis of the exacting plain error standard. See United States v. Olano, 507 U.S.

725, 732-35, 113 S.Ct. 1770, 1776-78 (1993); United States v. Dragon, 471 F.3d 501, 505

(3d Cir. 2006). Of course, even though we are concerned here with a plain error

challenge, the underlying question on review is whether we can say that the District Court

abused its discretion in its sentencing determinations. See United States v. Lloyd, 469

F.3d 319, 321 (3d Cir. 2006). As the Supreme Court explained in Gall v. United States,

No. 06-7949, 2007 WL 4292116, at *7 (U.S. Dec. 10, 2007), “[r]egardless of whether the

sentence imposed is inside or outside the Guidelines range, the appellate court must

review the sentence under an abuse-of discretion standard.”

       We see no merit at all in this appeal. The District Court was well aware of the

challenges that have been raised to the distinction between the length of the sentences

statutorily authorized for crack and powder cocaine so that the same quantity of crack as



                                             4
compared to powder cocaine will yield a longer sentencing range. But the court,

understandably in view of the circumstances of this case, was not moved by reason of that

distinction to impose a shorter sentence than it did. Moreover, it imposed a sentence

within the advisory guidelines range though it undoubtedly knew that it could impose a

shorter sentence. Thus, consideration of the Supreme Court opinion in Kimbrough does

not require that we remand this case for resentencing. Though a sentence by reason of

being within the guidelines sentencing range is not immunized from challenge, still the

circumstance that a sentence is within the range is a positive factor for a court to take into

account in considering its reasonableness. See United States v. Cooper, 437 F.3d 324,

332 (3d Cir. 2006) (“A sentence that falls within the guidelines range is more likely to be

reasonable than one outside the guidelines range.”). Overall, it is clear that we would not

disturb the sentence here even on an ordinary abuse of discretion review and we certainly

will not do so on an enhanced plain error review.

       The judgment of conviction and sentence entered November 30, 2006, will be

affirmed.




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