     Case: 08-40162 Document: 00511276102 Page: 1 Date Filed: 10/27/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          October 27, 2010

                                       No. 08-40162                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff-Appellee
v.

TOMMY LYNN JOHNSON

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                  for the Eastern District of Texas, Tyler Division
                                    6:07-CV-82


Before DAVIS, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
       Defendant Tommy Lynn Johnson appeals the denial of his motion under
28 U.S.C. § 2255 to set aside or correct his sentence. Specifically, Johnson
claims that his counsel was ineffective for failing to raise a due process challenge
to the 25-year consecutive sentence imposed on the firearm charge because
Johnson was incorrectly notified that he faced a 10-year sentence on that count.
We affirm.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                  No. 08-40162


                                        I.
      Tommy Lynn Johnson was charged in a second superceding indictment
with conspiracy to manufacture, distribute, and possess with intent to
manufacture and distribute 50 grams or more of methamphetamine; conspiracy
to possess pseudoephedrine knowing that it would be used to manufacture a
controlled substance; four counts of possession of pseudoephedrine with
knowledge or intent that it would be used to manufacture a controlled substance;
possession of an unregistered short-barreled shotgun; and two counts of
possession of a firearm in furtherance of a drug trafficking offense. In a notice
of penalty filed with the indictment, the Government informed Johnson that the
first count of possession of a firearm in furtherance of a drug trafficking offense
carried a sentence of five years of imprisonment to be served consecutively to
any other term of imprisonment, and that the second count of possession of a
firearm in furtherance of a drug trafficking offense carried a sentence of 10 years
of imprisonment to be served consecutively to any other term of imprisonment.
At arraignment, the district court likewise informed Johnson that he faced a
consecutive sentence of 5 years of imprisonment on the first count of possession
of a firearm in furtherance of a drug trafficking offense and a sentence of 10
years of imprisonment on the second count of possession of a firearm in
furtherance of a drug trafficking offense.
      A jury found Johnson guilty on all counts. The district court sentenced
Johnson to 151 months of imprisonment on each of the drug counts and 120
months of imprisonment on the short-barreled shotgun count, the sentences to
run concurrently. It additionally sentenced Johnson to the statutory minimum
consecutive sentences of five years of imprisonment on the first possession of a
firearm in furtherance of a drug trafficking offense count and 25 years of
imprisonment on the second possession of a firearm in furtherance of a drug


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trafficking offense count. 18 U.S.C. § 924(c)(1)(a)(i), (c)(1)(c)(i); Deal v. United
States, 508 U.S. 129, 131-37 (1993) (holding that a “second or subsequent”
conviction under § 924(c)(1) can be a second count at the same trial). These
sentences resulted in an overall sentence of 511 months of imprisonment. The
district court also sentenced Johnson to a total of 5 years of supervised release.
      This court affirmed Johnson’s convictions and sentences. United States v.
Johnson, 105 F. App’x 578, 581 (5th Cir. 2004). The Supreme Court vacated and
remanded for reconsideration in light of Booker. Johnson v. United States, 543
U.S. 1114, 1114 (2005).      On remand, this court again affirmed Johnson’s
convictions and sentences. United States v. Johnson, 156 F. App’x 640, 642 (5th
Cir. 2005). The Supreme Court denied certiorari. Johnson v. United States, 547
U.S. 1050, 1050 (2006).
      Johnson subsequently filed the present § 2255 motion. In the § 2255
motion, Johnson raised the following claims: (1) his counsel was ineffective for
not challenging his 25-year consecutive sentence for the second firearm count on
the basis that his prior conviction was not alleged in the indictment or found by
the jury; (2) his counsel was ineffective for not challenging the constitutionality
of the Sentencing Guidelines at sentencing based upon the cases that led to the
Supreme Court’s later ruling in Booker; (3) his counsel was ineffective for not
arguing that his conviction on the second firearm count was not a second or
subsequent conviction under § 924(c)(1)(C)(i); (4) his counsel was ineffective for
not arguing that his convictions for possession of pseudoephedrine with
knowledge or intent that it would be used to manufacture a controlled substance
were not drug trafficking offenses that could serve as the predicates for his
convictions for possession of a firearm in furtherance of a drug trafficking
offense; (5) the first count of the indictment was fraudulent because the
Government knew that there was no evidence that he was involved in a


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conspiracy involving 50 grams or more of methamphetamine and his counsel was
ineffective for not raising this issue at trial; and (6) his due process rights were
violated and his counsel was ineffective at sentencing for not arguing that
sentencing him to 25 years of imprisonment on the second firearm count violated
his due process rights because both the Government and the district court
notified him that the maximum sentence was 10 years of imprisonment.
      The magistrate judge (MJ) recommended that Johnson’s § 2255 motion be
dismissed on its merits. Over Johnson’s objections, the district court adopted the
MJ’s report and recommendation and dismissed Johnson’s § 2255 motion. It sua
sponte denied Johnson a COA. Regarding Johnson’s ineffective assistance of
counsel and due process claim based on the incorrect notice of penalty, the
district court ruled that the erroneous notice of penalty was “‘regrettable, even
inexcusable,’” but failed to provide a basis for relief because the statute notified
Johnson of the possible penalty. (quoting United States v. McCalla, 38 F.3d 675,
679 (3d Cir. 1994).    In support of its conclusion, the district court cited to
McCalla and United States v. Perez-Torres, 15 F.3d 403, 406 (5th Cir. 1994), two
cases in which the court rejected a due process challenge to a sentence for illegal
reentry into the United States following deportation that was based upon an
erroneous notice of the maximum penalty for illegal reentry provided to the
defendant when he was deported.
      Johnson filed a timely notice of appeal from the denial of his § 2255
motion. This court granted Johnson a COA on his claim “that his counsel was
ineffective for not arguing at sentencing that he could not be sentenced to 25
years of imprisonment on the second firearm count because he had been
incorrectly notified that he faced only a sentence of 10 years of imprisonment on
that count.” United States v. Johnson, No. 08-40162, slip op. at 2 (5th Cir. Mar.
10, 2009) (unpublished).


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                                        II.
      Johnson argues that his counsel was ineffective at sentencing for failing
to challenge the 25-year sentence on the second possession of a firearm in
furtherance of a drug trafficking offense count on due process grounds because
Johnson was incorrectly notified that he could receive only a 10-year sentence
on that count. He maintains that the district court’s reliance upon McCalla and
Perez-Torres is misplaced because in both of those cases the defendant was
informed of the correct maximum sentence prior to being convicted.              He
maintains that the incorrect penalty notification by the Government and the
district court amounted to a decision to prosecute him for violating
§ 924(c)(1)(B)(i) instead of violating § 924(c)(1)(C)(i). Johnson contends that his
case is similar to United States v. LaBonte, 520 U.S. 751 (1997), where the Court
noted that pursuant to 21 U.S.C. § 851, enhanced penalties for repeat drug
offenses are only applicable if the defendant is given notice prior to trial or the
entry of a guilty plea.
      Johnson additionally raises a new claim that his counsel was ineffective
for not raising the issue that applying a sentence enhancement under
§ 924(c)(1)(B)(i) for Johnson’s firearm being a short-barreled shotgun was
improper because the type of gun was an element of the offense that was
required to be charged in the indictment and proven beyond a reasonable doubt
to a jury. As Johnson has not been granted a COA on this issue, this court does
not have jurisdiction to consider it. See Larry v. Dretke, 361 F.3d 890, 896 (5th
Cir. 2004) (holding that this court has jurisdiction to consider only those issues
on which a COA has been granted).
      To demonstrate that he received ineffective assistance of counsel, Johnson
must show, under the two-prong test enunciated in Strickland v. Washington,
466 U.S. 668, 687 (1984), that counsel’s assistance was deficient and that the


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deficiency prejudiced his defense.     A failure to establish either deficient
performance or resulting prejudice defeats the claim. Id. at 697. To demonstrate
deficient performance, a habeas applicant must show that “counsel made errors
so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Id. at 687. To demonstrate prejudice, a
“defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different,” id. at 694, and that counsel’s errors were so serious that they
rendered the proceedings unfair or the result unreliable. Lockhart v. Fretwell,
506 U.S. 364, 372 (1993).
      This court has previously considered a case in which three defendants
were charged with possession of a firearm in furtherance of a drug trafficking
offense, notified at arraignment that they faced a five-year sentence pursuant
to § 924(c), which would implicate subsection 924(c)(1)(A)(i), and then sentenced
to 30 years of imprisonment pursuant to § 924(c)(1)(B)(ii) because the firearm
they possessed was a machine gun. See United States v. Gonzales, 121 F.3d 928,
934 (5th Cir. 1997). The defendants argued that the imposition of the sentence
enhancement for the firearm being a machine gun violated their due process
rights because it was not alleged in the indictment and they were not notified
that they faced the sentence enhancement at arraignment. Id. at 940-41. This
court held that the 30-year sentence mandated by § 924(c)(1)(B)(ii) when a
defendant possesses a machine gun was a sentence enhancement, not an
element of the offense, and did not need to be charged in the indictment. Id. at
941. It further held that because the machine gun enhancement was sentence
enhancement, not an element of the offense, the Due Process Clause was
satisfied because the defendants were informed of the enhancement prior to




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sentencing even though they were not informed of the enhancement prior to
trial. Id.
       The Supreme Court has subsequently overruled the portion of this court’s
ruling in Gonzales holding that the machine gun provision in § 924(c)(1)(B) is a
sentencing factor and held that the machine gun provision is an element of the
offense. United States v. O’Brien, 130 S. Ct. 2169, 2180 (2010). In the present
case, however, Johnson’s sentence enhancement under § 924(c)(1)(C)(i) was
based solely upon a prior conviction, not the type of weapon involved under §
924(c)(1)(B) , and was therefore a sentence enhancement rather than an element
of the offense.1 To distinguish a sentence enhancement from an element of the
crime, courts are directed to examine (1) the statute’s language and structure;
(2) tradition; (3) the risk of unfairness, (4) severity of the sentence, and (5)
legislative history.        Id. at 2175.         The factors of “tradition” and “risk of
unfairness” dominate the analysis in this situation.                      Almendarez-Torres v.
United States, 523 U.S. 224, 239-47 (1998), analyzed 8 U.S.C. § 1326, which
imposes a greater sentence on aliens who reenter the United States after being
deported following conviction for an aggravated felony, under similar factors.
In deciding that § 1326 was a sentencing factor, the court noted at the outset


       1
            18 U.S.C. § 924(c) reads in pertinent part -
  (1) . . .
   (B) If the firearm possessed by a person convicted of a violation of this subsection--
         (i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the
         person shall be sentenced to a term of imprisonment of not less than 10 years; or
         (ii) is a machinegun or a destructive device, or is equipped with a firearm silencer or firearm
         muffler, the person shall be sentenced to a term of imprisonment of not less than 30 years.
    (C) In the case of a second or subsequent conviction under this subsection, the person shall--
         (i) be sentenced to a term of imprisonment of not less than 25 years; and
         (ii) if the firearm involved is a machinegun or a destructive device, or is equipped with a
         firearm silencer or firearm muffler, be sentenced to imprisonment for life.
The type of gun described in § 924(c)(1)(B) is thus an element of the offense under O’Brien. The
sentence enhancement based on a prior conviction under § 924(c)(1)(C) is not.

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that the subject matter of the provision is recidivism, which “is as typical a
sentencing factor as one might imagine.” Id. at 230. The court also noted that
lower courts uniformly interpret such statutes as setting forth sentencing factors
and that it had found no statute that clearly makes recidivism an offense
element. Id.
      Finally, the contrary interpretation -- a substantive criminal offense
      -- risks unfairness. If subsection (b)(2) sets forth a separate crime,
      the Government would be required to prove to the jury that the
      defendant was previously deported "subsequent to a conviction for
      commission of an aggravated felony." As this Court has long
      recognized, the introduction of evidence of a defendant's prior crimes
      risks significant prejudice.


Id. at 234-235. This analysis applies equally to § 924(c)(1)(C)(i). O’Brien also
recognizes that the “recidivist provisions in (C)(i) and (ii) . . . are typically
sentencing factors as well”. 130 S.Ct. at 2180. Nothing related to the statute’s
language and structure, the severity of the sentence or the legislative history
indicates a Congressional intention to the contrary. Therefore, § 924(c)(1)(C)(i)
is a sentence enhancement not an element of the offense.
      Accordingly, because Johnson was informed of the sentence enhancement
prior to sentencing in the presentence report, the application of the sentence
enhancement under § 924(c)(1)(C)(i) did not violate the Due Process Clause
despite the incorrect notice of punishment given at arraignment. See Gonzales,
121 F.3d at 941. As the enhancement for Johnson’s having a prior conviction
was a sentence enhancement, not an element of the offense, the Government did
not need to include it in the indictment.      See id. at 940-41.    Accordingly,




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Johnson’s assertion that the Government chose to prosecute him under
§ 924(c)(1)(B)(i) instead of § 924(c)(1)(C)(i) is without merit. See id. at 940-41.2
       Johnson attempts to distinguish Gonzales by arguing that the issue in
Gonzales was whether the enhancement was alleged in the indictment, not
whether the defendants were incorrectly informed of the possible sentence at
arraignment.      This argument is without merit as one of the defendants in
Gonzales raised, without success, the exact argument that Johnson is raising:
that the application of the sentence enhancement violated the Due Process
Clause because he was not notified of the sentence enhancement at arraignment.
See Gonzales, 121 F.3d at 941. While Johnson further notes that the district
court did not rely on Gonzales, this does not affect the resolution of this appeal,
as this court may affirm based on any ground apparent in the record. See
Mangaroo v. Nelson, 864 F.2d 1202, 1204 n.2 (5th Cir. 1989). Finally, Johnson’s
reliance upon LaBonte is misplaced, as that case involved sentence
enhancements under 21 U.S.C. § 851, and the language of that statute requires
notification of the enhancement prior to trial, while the language of
§ 924(c)(1)(C)(i) does not. See LaBonte, 520 U.S. at 754 n.1.
       As shown above, the argument that Johnson could not be sentenced to 25
years of imprisonment on the second possession of a firearm in furtherance of a
drug trafficking offense count because he was not notified of the correct possible
sentence at arraignment is without merit. See Gonzales, 121 F.3d at 941.
Therefore, Johnson’s counsel was not ineffective for not raising this argument.



       2
         Although the government points out that it offered Johnson a plea agreement
including a sentence of 10 years, Johnson does not argue that the error in the notice of possible
sentence precluded him from making an informed decision on the plea deal. The possible
sentence that Johnson was facing on the drug and conspiracy counts was up to 150 years, if
imposed consecutively, before considering the two firearm counts that required consecutive
sentences of five and ten years individually.

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See Clark v. Collins, 19 F.3d 959, 966 (5th Cir. 1994) (holding that failure to
raise meritless objection is not ineffective assistance).
                                       III.
      Johnson has moved for appointment of counsel on appeal to participate in
oral argument. Counsel should be appointed in a habeas appeal only if the
interests of justice so require. See Schwander v. Blackburn, 750 F.2d 494, 502
(5th Cir. 1985). As Johnson’s appeal is without merit and oral argument is not
necessary, Johnson has not shown that the interests of justice require the
appointment of counsel. Johnson’s motion for appointment of counsel is hereby
denied.
                                       IV.
      In summary, the district court had no duty at arraignment to advise
Johnson of the possible 25-year sentence enhancement that might apply to the
second firearm charge as opposed to the statutory maximum that applied to the
count on a stand alone basis. At that point in the proceedings the district court
is not in a position to warn of possible sentence enhancements because it doesn’t
know which may apply until the defendant is convicted or pleads guilty.
Consequently, counsel was not ineffective for failing to argue that the 25-year
sentence violated Johnson’s due process rights despite the earlier notification
that the maximum sentence on that count was 10 years of imprisonment.
      For the foregoing reasons, the denial of Johnson’s § 2255 motion is
AFFIRMED and Johnson’s motion for appointment of counsel is DENIED.




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