              NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 09a0077n.06
                         Filed: January 30, 2009

                                        No. 06-6545

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,                                      On Appeal from the United
                                                                States District Court for the
              v.                                                Eastern District of Tennessee
                                                                at Chattanooga
MICHAEL JOHNSON,

       Defendant-Appellant.




                                                          /

Before:       GUY, CLAY, and COOK, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge.          Defendant Michael Johnson was convicted

by a jury of: (1) conspiracy to distribute and possess with intent to distribute 5 grams or more

of cocaine base (21 U.S.C. § 846 and § 841(a)(1)); (2) being a felon in possession of a

firearm (18 U.S.C. § 922(g)(1)); (3) possession with intent to distribute cocaine base (21

U.S.C. § 841(a)(1) and 18 U.S.C. § 2); and (4) possession of a firearm in furtherance of a

drug trafficking offense (18 U.S.C. § 924(c)(1)(A)(i) and § 2). The district court sentenced

defendant to a total of 360 months of imprisonment, to be followed by a four-year term of

supervised release.

       Defendant, through counsel, appeals from the denial of his motion for a new trial

based on the jury’s exposure to extra-judicial matters during deliberations. Raising other
No. 06-6545                                                                                                2

claims pro se, defendant challenges the sufficiency of the evidence to support the conspiracy

conviction, the determination that he was a career offender based on a prior state conviction

for reckless endangerment, and the refusal to reduce his sentence to account for the 100:1

disparity for offenses involving crack and powder cocaine.1 For the reasons that follow, we

affirm defendant’s convictions, vacate his sentence, and remand for resentencing consistent

with the recent decisions in Begay v. United States, 128 S. Ct. 1581 (2008), and Kimbrough

v. United States, 128 S. Ct. 558 (2007).

                                                     I.

        On April 7, 2004, police executed a search warrant at 3011 North Cumberland Avenue

in Chattanooga, Tennessee, and arrested defendant and Akil Lee. Making forced entry

through the front door, police saw Lee and at least one other person run out the back door.

Lee was apprehended outside, a small amount of powder cocaine was seized near him, and

$190 was found in his pocket. Defendant was seen ducking into a bedroom. Officers

followed, heard a thud, and caught up with defendant in the bathroom, where defendant held

the officers away from the already flushing toilet. One officer testified that he could see

“crumbs” of what appeared to be “easily an ounce” of crack cocaine, although no drugs were

recovered. Defendant had $230 in cash in his pocket, and no drugs were found on his person.

        Once defendant was secured, officers backtracked and discovered a loaded .38 caliber

Rossi revolver lying in a box with trash located along the route defendant had taken to the


        1
          Defendant also argued that the government denied him equal protection by refusing to provide him
with transcripts from his trial to use in preparation of this appeal. We will not entertain this claim where
there is no factual basis offered to support it, the defendant is represented by appointed counsel, and trial
transcripts are part of the record.
No. 06-6545                                                                                  3

bathroom. In a further search of the premises, officers also found a set of digital scales on

top of a speaker in the living room, .9 grams of crack cocaine on the living room floor, and

a bag containing 110 white pills. Lee initially claimed that he no longer lived there, but that

defendant and a cousin named Shaun Robinson did. However, a letter addressed to Lee was

found in the house, and Lee’s driver’s license—renewed that same day—listed the 3011

North Cumberland address as his residence. It was stipulated at trial that this was not

defendant’s permanent residence.

        After initial denials from defendant, Lee was heard urging defendant to “take his

charges” and admit responsibility for the firearm and the crack cocaine. Lee said he would

admit that the pills and powder cocaine were his. Later, defendant did admit to possessing

the firearm and the .9 grams of crack cocaine found in the living room. An officer testified

that one gram of crack cocaine would represent a distribution quantity, explaining that a

single rock of crack usually weighed approximately one tenth of a gram and was worth about

$20. As a result, the .9 grams of crack cocaine was estimated to be worth approximately

$200.

        Separate four-count indictments were returned against defendant and Lee. Lee

cooperated, pleaded guilty to one count, and testified for the government at defendant’s trial.

Lee specifically testified that he had been friends with defendant for 11 or 12 years, and that

he had sold crack cocaine to the defendant once or twice a week from October 2003 until

their arrest on April 7, 2004. Lee estimated that he sold defendant a total of 4.5 ounces of

crack cocaine, and testified that he sometimes saw defendant resell the crack cocaine to
No. 06-6545                                                                                  4

others. Lee also said he had seen the defendant with a gun when he was reselling the crack

cocaine.

       Lee testified that defendant came over with his clothes and other belongings on the

day of their arrest and said he had a fight with his girlfriend. Lee told defendant he could

stay with him, and then Lee went to get a new driver’s license. Lee testified that he sold

defendant “a quarter,” or seven grams of crack cocaine, that day, and sold someone else 1.2

grams of powder cocaine. Later, Lee’s cousin spotted the police van, alerted everyone, and

they ran out the back door.

       Timothy Henderson, defendant’s cell mate, testified that defendant said that he took

clothes, a firearm, and crack cocaine to Lee’s house after a fight with his girlfriend.

Defendant told Henderson that the gun was his and that he never left home without it.

Henderson also reported that defendant said he flushed two ounces of crack cocaine down

the toilet before his arrest. This was the only reference to a two-ounce quantity of cocaine,

which is equivalent to 56.67 grams.

       The defense offered testimony from fingerprint examiner Robert Rittenour, who stated

that the only usable fingerprint on the firearm belonged to an ATF agent. There was also

evidence that a “firearm trace” did not identify defendant or Lee as its purchaser. Next,

defendant’s probation officer testified that defendant was living with his girlfriend and her

mother, and that defendant was receiving $400 per month in social security disability

benefits. Finally, defendant’s girlfriend’s mother and sister testified that defendant was

living with them at the time of his arrest. The sister, Chiemeka Jones, also testified that she
No. 06-6545                                                                                   5

never saw defendant with a gun.

       Trial commenced on December 18, 2005, and the jury was charged and deliberated

for several hours on December 19, 2005. When the court clerk brought the trial exhibits to

the jury room the next morning, she saw a clear plastic bag containing white powder on the

table in the jury room. One juror told her that it contained baking powder. The district judge

was alerted, counsel was consulted, and the juror who brought it in was questioned. After

consultation with counsel, the district court denied defendant’s motion for a new trial and

instructed the jury that it must make its findings based only on the evidence admitted during

trial. Deliberations continued, and the jury found defendant guilty on all counts. Although

the conspiracy charged was alleged to have involved more than 50 grams of crack cocaine,

the jury specifically found that the conspiracy involved more than 5 but less than 50 grams

of crack cocaine. Defendant filed a renewed motion for judgment of acquittal and/or for a

new trial, which was denied in a written order entered February 7, 2006.

       On December 6, 2006, the district court sentenced defendant to a total of 360 months’

imprisonment—including concurrent terms of 300 months, 120 months, and 240 months on

counts 1-3, respectively, to be followed by a consecutive 60-month term on count 4.

Defendant raised numerous objections, both pro se and through counsel, two of which are

at issue in this appeal. In calculating the guidelines range for the three grouped offenses, the

presentence report held defendant accountable for at least 35 and less than 50 grams of crack

cocaine, which corresponded to an offense level of 30. Defendant’s criminal history score

was 21, well within Category VI. The district court determined, however, that two of
No. 06-6545                                                                               6

defendant’s prior state convictions—robbery and reckless endangerment—qualified him as

a career offender for purposes of USSG § 4B1.1, and resulted in an enhanced guidelines

range of 360 months to life under USSG § 4B1.1(c). This appeal followed.

                                            II.

A.    New Trial

      Alerted to the presence of the bag of white powder, the district court sought guidance

from counsel. The government requested that the juror who brought it in be questioned

separately, and defense counsel moved for a mistrial. The district court conducted a voir

dire, taking care to instruct the juror not to convey any information about the jury’s

deliberations, confirming that the bag contained baking powder, and asking why it was

brought into the jury room. In response, the juror explained:

             THE JUROR: Yes, sir. We got hung up yesterday. Part of it was on–
      Half of them didn’t know what 2 ounces was. I do a lot of my own gun
      loading, and I have scales for loading my own bullets. So they told me if I
      could show them what 2 ounces was—because nobody knowed. So that’s
      what I done. I was up to 11:00 last night—which my wife’s already run me
      off—weighing 2 ounces of baking powder, just to show them what 2 ounces
      looked like. And that was the whole deal.

The juror also confirmed that he had shown the other jurors what two ounces of baking

powder looked like.

      Outside the presence of the jury, the district judge and counsel agreed that

Henderson’s testimony included the only mention of a 2-ounce quantity of drugs at trial.

After an opportunity to research the issue, and with the benefit of argument from counsel,

the district court found that defendant had not demonstrated prejudice from the juror’s
No. 06-6545                                                                                 7

improper injection of this demonstrative aid into the deliberations. The district court

emphasized that the government had not alleged a 2-ounce quantity in the indictment, and

explained that “the most logical reason that the jury would have wanted to conduct their own

experiment with the 2 ounces was to test the testimony of one of the witnesses . . . [whose]

testimony did not go directly to an element of the offense at all.” In other words, this was

probably an effort to test the credibility of Henderson and did not pertain to an element of

either of the drug offenses.

       Denying defendant’s motion for a mistrial, the district court nonetheless agreed that

it was improper for the jury to consider it and instructed the jury accordingly. Specifically,

with the approval of counsel, the jury was instructed in pertinent part as follows:

               It has come to the Court’s attention that this morning the jury discussed
       and had available to it a plastic bag containing a white powder. This was not
       introduced as evidence during the trial by the parties. I remind you that you
       are to render your verdict based solely upon the evidence that was presented
       to you during the trial. The evidence in this case includes only what the
       witnesses said while they were testifying under oath, the exhibits that I allowed
       into evidence, and the stipulations of the parties. Nothing else is evidence.
       You should make your decision based only on the evidence, as I have defined
       it here, and nothing else. Therefore you must disregard any discussions you
       had this morning regarding the plastic bag containing the powder and its
       contents. However, you may, and should, use your common sense in weighing
       the evidence. Consider it in light of your everyday experience with people and
       events, and give it whatever weight you believe it deserves. If your experience
       tells you certain evidence reasonably leads to a conclusion, you are free to
       reach that conclusion.

Deliberations resumed, and the jury returned its verdicts later that day. As previously

mentioned, the jury found that the conspiracy involved more than 5 grams but less than 50

grams of crack cocaine. In denying the renewed motion for new trial, the district court found
No. 06-6545                                                                                    8

that defendant was not prejudiced by the jury’s improper use and/or consideration of extrinsic

evidence, and that there was no reason to believe the jurors did not heed the curative

instructions or base their verdicts solely on the evidence adduced at trial.

       Under Fed. R. Crim. P. 33, a district court may, upon a defendant’s motion, vacate a

judgment and grant a new trial “if the interest of justice so requires.” We review a district

court’s decision whether to grant a new trial on the grounds of juror misconduct for abuse

of discretion. United States v. Wheaton, 517 F.3d 350, 361 (6th Cir. 2008). Here, the district

court promptly investigated the circumstances and determined that the juror had improperly

introduced extrinsic evidence into the jury’s deliberations. See id. (citing United States v.

Lloyd, 462 F.3d 510, 518 (6th Cir. 2006)). While the jury’s verdict must be based on

evidence admitted at trial, not from outside sources, the defendant “must do more than raise

a ‘serious suspicion’ in order to demonstrate that he is entitled to a new trial.” Id. at 362.

As the district court recognized, the burden is on the defendant to demonstrate that juror

misconduct prejudiced his defense, and prejudice will not be presumed. Id. at 361; United

States v. Branham, 97 F.3d 835, 855 (6th Cir. 1996); United States v. Gillespie, 61 F.3d 457,

460 (6th Cir. 1995).

       In the district court’s estimation, the jury’s investigation into the 2-ounce quantity was

related to the weighing of Henderson’s testimony and did not concern an element of the

charges. The danger that the jury might consider evidence that had not been admitted at trial

was ameliorated by the district court’s cautionary instructions, which advised the jurors that

their verdict must be based solely on the evidence admitted during trial and that their
No. 06-6545                                                                                             9

discussions concerning the bag of powder must be disregarded in reaching their verdict. It

is true that the charges against defendant involved only crack cocaine, not powder cocaine,

but defendant cannot show that this prejudiced his defense where, in fact, the jury found that

the charged quantity had not been proved and that the conspiracy involved a lesser quantity

of crack cocaine. The district court did not abuse its discretion in denying defendant’s

motion for new trial.2

B.      Sufficiency of Evidence

        This court reviews de novo a district court’s denial of a motion for judgment of

acquittal challenging the sufficiency of the evidence. United States v. Keeton, 101 F.3d 48,

52 (6th Cir. 1996). The relevant question in reviewing the sufficiency of the evidence on

direct appeal is whether, “after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). In making this

determination, “we do not weigh the evidence, assess the credibility of the witnesses, or

substitute our judgment for that of the jury.” United States v. Wright, 16 F.3d 1429, 1440

(6th Cir. 1994).

        Arguing pro se, defendant reasserts the contention that the evidence established, at

most, a buyer-seller relationship that was insufficient to establish the existence of the

conspiracy. Proof of a formal agreement is not necessary, however, and a defendant’s



        2
         Since 56.67 grams equals 2 ounces, the verdict indicates that the jury was not persuaded that the
conspiracy involved either the 2-ounce quantity that Henderson testified about or the 4.5-ounce aggregate
that Lee estimated he had sold to defendant.
No. 06-6545                                                                                  10

knowledge of and participation in a conspiracy may be inferred from circumstantial evidence.

United States v. Avery, 128 F.3d 966, 970-71 (6th Cir. 1997). Repeated purchases for further

distribution provide evidence that there was more than a buyer-seller relationship, and the

quantity of drugs involved may also support an inference that there was a conspiracy. United

States v. Martinez, 430 F.3d 317, 332-33 (6th Cir. 2005).

       Here, Lee testified that defendant purchased crack cocaine once or twice per week

over a six-month period for further distribution by defendant. Although the jury did not

accept Lee’s testimony that he sold defendant a total of 4.5 ounces of crack cocaine (equal

to more than 125 grams), the jury found the conspiracy between defendant and Lee involved

more than 5 but less than 50 grams of crack cocaine. As mentioned earlier, there was

evidence that a single gram of crack cocaine, which is a little more than the quantity seized

at the time of defendant’s arrest, represented a distribution quantity worth approximately

$200. Lee also testified that he sold defendant six or seven grams of crack cocaine on the

day of their arrest. After reviewing the trial testimony in this case, we find that the evidence

was sufficient to lead a rational trier of fact to conclude that the conspiracy existed and that

defendant was a knowing participant. United States v. Paige, 470 F.3d 603, 608 (6th Cir.

2006). Accordingly, the district court did not err in denying defendant’s motion for judgment

of acquittal.

                                              III.

       Sentences imposed post-Booker are reviewed for reasonableness, which encompasses

both procedural and substantive reasonableness. Gall v. United States, 128 S. Ct. 586, 594
No. 06-6545                                                                                 11

(2007); United States v. Booker, 543 U.S. 220, 261 (2005). A sentence may be procedurally

unreasonable if, among other things, the district court improperly calculated the sentencing

guidelines range, treated the guidelines as mandatory, or failed to consider relevant

sentencing factors under 18 U.S.C. § 3553(a). Gall, 128 S. Ct. at 597. If procedurally sound,

a challenge to the substantive reasonableness of a sentence is reviewed for abuse of

discretion. Id. at 598. Defendant raises two issues with respect to his sentence—both of

which were also asserted at the time of sentencing.

A.     Career Offender

       First, defendant argues that the district court improperly calculated his guidelines

range based on an erroneous determination that his prior state conviction for reckless

endangerment qualified him as a career offender for purposes of enhancement under USSG

§ 4B1.1(c). A defendant is a career offender if (1) he is at least 18 years old at the time the

offense of conviction was committed, (2) the offense of conviction is a felony that is either

a crime of violence or a controlled substance offense, and (3) he has at least two such prior

felony convictions. USSG § 4B1.1(a). Johnson did not contest that he was at least 18 years

old, that he was convicted of a controlled-substance offense in this case, or that his prior

conviction for robbery qualified as a crime of violence. We review de novo the district

court’s conclusion that defendant’s conviction for reckless endangerment under Tenn. Code

Ann. § 39-13-103 constituted a “crime of violence.” United States v. Hargrove, 416 F.3d

486, 494 (6th Cir. 2005).

       A “crime of violence” is defined to mean
No. 06-6545                                                                                12

       any offense under federal or state law, punishable by imprisonment for a term
       exceeding one year, that—

       (1)    has as an element the use, attempted use, or threatened use of
              physical force against the person of another, or

       (2)    is burglary of a dwelling, arson, or extortion, involves use of
              explosives, or otherwise involves conduct that presents a serious
              potential risk of physical injury to another.

USSG § 4B1.2(a) (emphasis added). Under the “categorical approach” for determining

whether a prior conviction constitutes a “violent felony” under the Armed Career Criminal

Act (ACCA) or a “crime of violence” under § 4B1.2(a), we must look only to the fact of

conviction and the statutory definition. If that inquiry is not determinative, further inquiry

“is generally limited to examining the statutory definition, charging document, written plea

agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16 (2005); see also

United States v. Foreman, 436 F.3d 638, 641 (6th Cir. 2006).

       Although the presentence report, which is the only evidence in the record concerning

this conviction, recounts the factual basis for the conviction, the district court properly

focused on the statutory definition in concluding that the offense “otherwise involves conduct

that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2).

That is, under Tennessee law, reckless endangerment is committed by one “who recklessly

engages in conduct that places or may place another person in imminent danger of death or

serious bodily injury.” T ENN. C ODE A NN. § 39-13-103(a). The offense becomes a felony

when “committed with a deadly weapon,” which includes a motor vehicle. Id. at § 39-13-
No. 06-6545                                                                                  13

103(b); State v. Wilson, 211 S.W.3d 714, 719 (Tenn. 2007). Indeed, as was noted at

sentencing, this court has held that a Tennessee conviction for felony reckless endangerment

constituted a “violent felony” under the ACCA because there is no scenario in which one

could commit the offense without creating a “serious potential risk of physical injury to

another.” See, e.g., United States v. Bailey, 264 F. App’x 480, 482 (6th Cir.), cert. denied,

128 S. Ct. 2949 (2008); United States v. Rutledge, 33 F.3d 671, 674 (6th Cir. 1994).

       However, the Supreme Court’s recent decision in Begay v. United States, 128 S. Ct.

1581, 1584-85 (2008), makes clear that the presence of a serious potential risk of physical

injury alone is not sufficient to establish that the conviction is a “crime of violence” under

the “otherwise” clause of USSG § 4B1.2(a)(2). See United States v. Smith, 544 F.3d 781,

784 (7th Cir. 2008) (interpreting Begay as clarifying that risk of physical injury is a

necessary, but not sufficient, condition for offense to be included in the ACCA’s “otherwise”

clause). The Supreme Court reasoned that the presence of the listed examples—burglary,

arson, extortion, or crimes involving the use of explosives—“indicates that the statute covers

only similar crimes, rather than every crime that ‘presents a serious potential risk of physical

injury to another.’ § 924(e)(2)(B)(ii).” Begay, 128 S. Ct. at 1585. Offering further insight,

the Court also explained that the crime of driving under the influence was different from the

listed examples in that the latter typically involve purposeful, violent and aggressive conduct.

Id. at 1586. In fact, the Second Circuit has since held that a reckless endangerment

conviction under New York law was not a “crime of violence” because the statute did not

criminalize purposeful or deliberate conduct. United States v. Gray, 535 F.3d 128, 132 (2d
No. 06-6545                                                                                               14

Cir. 2008); see also United States v. Herrick, 545 F.3d 53, 58-60 (1st Cir. 2008) (holding that

conviction under Wisconsin law for homicide by negligent operation of a motor vehicle did

not constitute a “crime of violence” under USSG § 4B1.2(a)(2)).

        Accordingly, we find that the district court’s determination in this case that

defendant’s reckless endangerment conviction constituted a “crime of violence” should be

revisited in light of the recent pronouncements in Begay.3

B.      100:1 Ratio

        In the calculation of the guidelines range, defendant was held accountable for more

than 35 and less than 50 grams of crack cocaine, which corresponded to a base offense level

of 30 under USSG § 2D1.1(c)(5). Defendant argued at sentencing that the guidelines range

was not fair because of the 100:1 disparity in treatment of crack and powder cocaine, and

urged that the district court impose a lesser sentence in light of the purposes of sentencing

and in consideration of the disparities in sentencing. 18 U.S.C. § 3553(a). In response, the

government called attention to a recent decision by this court rejecting a claim that the 100:1

ratio was unreasonable per se. United States v. Caver, 470 F.3d 220, 249 (6th Cir. 2006).

        The record indicates, however, that the district court actually rejected defendant’s

request on the belief that it was without authority to depart or vary from the guidelines on this

basis. This is clear from the district court’s express reliance on the Eighth Circuit’s recently


        3
          Although defendant argued that the district court’s determination was also in error because it was
made without reliance on Shepard-compliant records showing that the conviction was a felony, it seems
likely that the state court records would show that the conviction was for felony reckless endangerment since
the maximum sentence for a misdemeanor is 11 months and the minimum sentence for a felony is two years.
On remand, the district court can determine whether the presentence report’s findings have support in sources
approved by Shepard. See United States v. Jones, 453 F.3d 777, 780-81 (6th Cir. 2006).
No. 06-6545                                                                                  15

articulated—now twice reversed—view that “neither Booker nor § 3553(a) authorizes district

courts to reject the 100:1 quantity ratio and use a different ratio in sentencing defendants for

crack cocaine offenses.” United States v. Spears, 469 F.3d 1166, 1176 (8th Cir. 2006),

vacated and remanded, 128 S. Ct. 858 (2008), and United States v. Spears (on remand), 533

F.3d 715 (8th Cir. 2008), vacated and remanded sub nom. Spears v. United States, __S. Ct.

__, 2009 WL 129044 (Jan. 21, 2009). The Supreme Court held in Kimbrough, however, that

“under Booker, the cocaine Guidelines, like all other Guidelines, are advisory only.”

Kimbrough v. United States, 128 S. Ct. 558, 560 (2007). The Court has even further clarified

that “district courts are entitled to reject and vary categorically from the crack-cocaine

Guidelines based on a policy disagreement with those Guidelines.” Spears, 2009 WL

129044, at *3. We find, in light of Kimbrough, that it was procedurally unreasonable for the

district judge to sentence defendant under the erroneous belief that he was without authority

to consider the 100:1 disparity in treatment of offenses involving crack and powder cocaine.


       Accordingly, we AFFIRM defendant’s convictions, VACATE defendant’s sentences,

and REMAND for resentencing consistent with Begay and Kimbrough.
