                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-5047


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

 CHRISTOPHER JEROME JOHNSON, a/k/a Shorty Rock,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   James C. Dever III,
Chief District Judge. (5:11-cr-00008-D-1)


Submitted:   December 27, 2013            Decided:   February 6, 2014


Before KING, GREGORY, and DAVIS, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Christopher        Jerome       Johnson        appeals         the        384-month

sentence     imposed      following        his    guilty    plea       to    conspiracy        to

distribute and possess with intent to distribute fifty grams or

more of cocaine base and five kilograms or more of cocaine, in

violation     of     21     U.S.C.    § 846       (2012).         On    appeal,         Johnson

challenges     the    district       court’s       denial    of     his      petitions      for

writs   of    habeas        corpus    ad    testificandum,          which         sought    the

testimony of various incarcerated witnesses at his sentencing

hearing.      For     the     reasons      that    follow,     we       vacate      Johnson’s

sentence and remand for resentencing.

             This court reviews the district court’s denial of a

petition for writ of habeas corpus ad testificandum for abuse of

discretion.        United States v. Butler, 885 F.2d 195, 199-200 (4th

Cir. 1989).         “A district court abuses its discretion when it

acts arbitrarily or irrationally, fails to consider judicially

recognized        factors     constraining        its   exercise            of    discretion,

relies on erroneous factual or legal premises, or commits an

error of law.”        United States v. Thompson-Riviere, 561 F.3d 345,

348 (4th Cir. 2009) (internal quotation marks omitted).

             In     exercising       its    discretion       to        grant      or    deny    a

petition     for     writ      of    habeas       corpus      ad       testificandum           at

sentencing, a district court should consider (1) the possible

effect of the proffered testimony on the Guidelines, (2) “the

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time,    expenses,      delay,       and    resources         that      would        have    to    be

expended to produce the witness,” and (3) the availability of

other     alternatives        such     as     “a     stipulation,               an    affidavit,

testimony over the telephone, etc.”                          United States v. Garrard,

83 F.3d 889, 893 (7th Cir. 1996).                        The defendant must make a

greater    showing     of     relevancy       and       necessity         for    the    witness’

testimony      as    the    possible        impact       of       the   testimony           on    his

Guidelines calculations decreases.                      Id.       A petition for writ of

habeas corpus ad testificandum also raises due process concerns,

as   a   criminal      defendant       enjoys       a    due       process       right       to    be

sentenced on the basis of accurate information and a concomitant

right to contest the accuracy of the Presentence report (“PSR”)

and ensure reliable sentencing information in some manner.                                        See

United States v. Powell, 650 F.3d 388, 393 (4th Cir. 2011);

United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009); United

States v. Pless, 982 F.2d 1118, 1127 (7th Cir. 1992); United

States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987).

            Here, Johnson filed two separate petitions for writs

of habeas corpus ad testificandum.                      In the first, Johnson sought

writs    for     twelve     inmates        housed       in    eight       prisons       in       five

different      states.         The    time,       delay,       expense,         and    resources

required    to      produce    these       witnesses         at    a    sentencing          hearing

would be significant.            Johnson sought their testimony primarily

to   contest     the    drug    weight       calculation            and    leadership            role

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enhancement in his PSR, although their statements were not the

primary basis for those calculations.                   Johnson provided no clear

forecast of these witnesses’ likely testimony — beyond his own

claim    that    they    were   lying      —    and     thus   did    not    adequately

demonstrate that they were necessary or relevant to the issues

to be resolved during the sentencing hearing.                       Additionally, the

court     permitted      Johnson     to        submit    affidavits         from    these

witnesses, although he did not do so.                     Thus, we conclude that

the district court properly exercised its discretion in denying

these writs.

            Johnson’s       second        petition,        however,         compels       a

different analysis.         In this petition, Johnson sought writs for

two     additional      witnesses    —     Quadrick       Everette     and        Tremaine

Edmonson     —    for      information          central        to    the     Guidelines

calculations in the PSR.            In denying writs for these witnesses,

the court relied substantially on the reasoning of its prior

order.      However,     the    court     erroneously      believed        that    it   had

previously denied Johnson’s requests for writs for Everette and

Edmonson, although they were not, in fact, included in the prior

request.

            On appeal, Johnson asserts, and the Government does

not dispute, that both of these witnesses were housed in the

same North Carolina prison at the time of his sentencing.                               This

facility was significantly closer to the sentencing hearing than

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the Government’s witness — Joshua Coley — who was writ into the

sentencing hearing without any analysis or explanation by the

Government or the court.           See United States v. Johnson, 726 F.2d

1018,    1021    (4th    Cir.    1984)    ((“[G]eographical          information     is

especially       appropriate      for    judicial        notice.”).       Thus,     the

court’s apparent reliance on the expense, delay, and resources

needed to produce Everette and Edmonson at sentencing in denying

Johnson’s request appears arbitrary.

              With his second petition, Johnson provided affidavits

from Edmonson and Everette, which provided some forecast of the

testimony       they    would    provide          at   sentencing.      While     these

statements were not long or detailed, they were, on their face,

contradictory in material respects to the statements attributed

to Everette and Edmonson in the PSR.                    Additionally, Everette and

Edmonson possessed information relevant to all of the contested

Guidelines calculations, and their affidavits appeared, at least

in part, to support Johnson’s position on those issues.

              Although the court considered the written statements

of Edmonson and Everette in sentencing Johnson, these statements

did     not   provide     a     means    of       assessing   witness    credibility

equivalent to that accorded the Government’s witnesses.                         Where,

as here, the Guidelines calculations were hotly contested and

were resolved based largely upon witness credibility, and where

the requested witnesses were so crucial to the disputed issues

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of fact, we are not convinced that the affidavits were adequate

to     ensure     the    reliability           of    the     court’s       credibility

determination.        For these reasons, we conclude that the district

court abused its discretion in denying writs for Edmonson and

Everette.       Because the Government has not alleged, let alone met

its    burden    to   establish,       harmless     error,    the    error    requires

reversal.       See United States v. Dyess, 730 F.3d 354, 366-67 (4th

Cir. 2013) (noting that Government bears burden to establish

harmless error).

            Accordingly, we vacate Johnson’s sentence and remand

for resentencing consistent with this opinion.                      We dispense with

oral    argument      because    the    facts       and    legal    contentions     are

adequately      presented   in    the    materials         before   this    court   and

argument would not aid the decisional process.

                                                              VACATED AND REMANDED




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