                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-3-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2663




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-2663
                                     ___________

                           UNITED STATES OF AMERICA

                                           v.

                               ERIC D. JOHNSON,
                                              Appellant
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            D.C. Criminal No. 98-cr-00135
                           (Honorable William W. Caldwell)
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 8, 2008

      Before: SCIRICA, Chief Judge, HARDIMAN and COWEN, Circuit Judges.

                              (Filed: September 3, 2008 )
                                     ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM.

      Eric Johnson, proceeding pro se, appeals an order of the United States District

Court for the Middle District of Pennsylvania denying his motion under 18 U.S.C.

§ 3582(c) to reduce his sentence. We will affirm.
         In 1998, a jury found Johnson guilty of assaulting and interfering with federal

marshals in the performance of their official duties in violation of 18 U.S.C. § 111,

distributing crack cocaine in violation of 21 U.S.C. § 841, using or carrying a firearm in

relation to a drug-trafficking crime or a crime of violence in violation of 18 U.S.C.

§ 924(c)(1), and making a false statement to federal marshals in violation of 18 U.S.C.

§ 1001. The evidence at trial established that Johnson fired ten rounds from a nine-

millimeter hand gun at seven federal marshals, and that he was engaged in a drug

transaction just before the shooting. The District Court imposed a prison sentence of 272

months, including a sentence of 60 months on the § 924(c) offense which would run

consecutive to the sentence imposed on the drug-trafficking offense.

         The District Court’s sentence calculation included an upward departure of two

levels under U.S.S.G. § 5K2.6 due to the seriousness of Johnson’s conduct and the fact

that he intentionally shot at seven individuals.1 At the sentencing hearing, the District

Court cited United States v. Nakagawa, 924 F.2d 800 (9th Cir. 1991), as authority for the




   1
       U.S.S.G. § 5K2.6 provides:

         If a weapon or dangerous instrumentality was used or possessed in the
         commission of the offense the court may increase the sentence above the
         authorized guideline range. The extent of the increase ordinarily should
         depend on the dangerousness of the weapon, the manner in which it was
         used, and the extent to which its use endangered others. The discharge of a
         firearm might warrant a substantial sentence increase.


                                               2
upward departure. In Nakagawa, the defendant was charged with a drug offense and

possession of a firearm during and in relation to a drug trafficking crime in violation of

§ 924(c). The court found an upward departure under § 5K2.6 warranted because 17

additional firearms were seized from the defendant’s home, and his possession of

weapons exceeded what was ordinarily involved in a drug trafficking conviction. Id. at

804-05.

       In 1999, we affirmed Johnson’s conviction and sentence on direct appeal. We

held, among other things, that the District Court did not abuse its discretion in granting

the two-level upward departure. In 2001, Johnson unsuccessfully moved to vacate his

sentence pursuant to 28 U.S.C. § 2255. In 2007, Johnson filed a motion to reduce his

sentence under 18 U.S.C. § 3582(c)(2), arguing that Amendment 599 to the Sentencing

Guidelines lowered his sentencing range. The District Court denied Johnson’s motion,

and this appeal followed.

       Section 3582(c)(2) authorizes a district court to reduce a term of imprisonment in

the case of a defendant who has been sentenced based on a sentencing range that has

subsequently been lowered by the Sentencing Commission. 18 U.S.C. § 3582(c)(2).

Amendment 599 expanded the commentary to U.S.S.G. § 2K2.4 on use of a firearm

during or in relation to certain crimes, and clarified under what circumstances defendants

sentenced for violations of 18 U.S.C. § 924(c) in conjunction with convictions for other

offenses may receive weapon enhancements contained in the Guidelines for those other



                                              3
offenses. See U.S. Sentencing Comm’n Guidelines Manual, Supp. to App. C, at 71

(2000). Amendment 599 provides:

       If a sentence under this guideline is imposed in conjunction with a sentence
       for an underlying offense, do not apply any specific offense characteristic
       for possession, brandishing, use, or discharge of an explosive or firearm
       when determining the sentence for the underlying offense. A sentence
       under this guideline accounts for any explosive or weapon enhancement for
       the underlying offense of conviction . . ..

U.S.S.G. § 2K2.4, Application Note 4. Amendment 599 went into effect on November 1,

2000, and was made retroactive pursuant to § 1B1.10.

       Johnson argues that Amendment 599 prohibits the District Court’s two-level

upward departure. The District Court, however, correctly explained that it did not use

Johnson’s discharge of the gun to increase the offense level for the underlying offense,

but that it used his offense conduct to make an upward departure in the guideline range

under § 5K2.6, an independent basis for doing so. In other words, the District Court did

not apply a weapon “enhancement,” which is an adjustment to the base offense level as

specifically provided by the Guidelines, but an “upward departure,” which is a

discretionary adjustment to the Guidelines range once calculated. See United States v.

Shedrick, 493 F.3d 292, 298 n.5 (3d Cir. 2007) (defining “enhancement” and “upward

departure”). Amendment 599 precludes a weapon enhancement for the underlying

offense of conviction where a defendant has been sentenced for a § 924(c) violation, not

an upward departure.

       Accordingly, we shall affirm the order of the District Court.

                                             4
