UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4284
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GREGORY JOHNSON, a/k/a Little Greg,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Peter J. Messitte, District Judge. (8:02-
cr-00178-PJM)
Submitted: January 10, 2007 Decided: March 1, 2007
Before WIDENER and MOTZ, Circuit Judges, and Glen E. CONRAD, United
States District Judge for the Western District of Virginia, sitting
by designation.
Affirmed by unpublished per curiam opinion.
Timothy J. Sullivan, SULLIVAN & SULLIVAN, College Park, Maryland,
for Appellant. Deborah A. Johnston, OFFICE OF THE UNITED STATES
ATTORNEY, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
This case is before the court after resentencing on
remand. In our prior decision, we affirmed Gregory Anthony
Johnson’s convictions of one count of kidnaping, in violation of 18
U.S.C. §§ 1201(a)(1), 2 (2000), one count of attempting to kill a
witness, in violation of 18 U.S.C. §§ 1512(a)(1)(C), 2 (2000); and
two counts of using and carrying a firearm during and in relation
to a crime of violence, in violation of 18 U.S.C. §§ 924(c), 2
(2000). We also rejected Johnson’s arguments that the district
court’s order of restitution was improper, but vacated his sentence
and remanded for resentencing under an advisory Guideline* scheme
pursuant to United States v. Booker, 543 U.S. 220 (2005). United
States v. Johnson, 400 F.3d 187 (4th Cir.), cert. denied, 126 S.
Ct. 134 (2005).
On remand, the district court utilized the same Guideline
calculations that were applied in Johnson’s initial sentencing,
without objection. The total offense level of forty-one and
Johnson’s criminal history category of I yielded a sentencing range
of 324 to 405 months on the kidnaping and witness tampering counts.
The firearm counts were subject to statutory minimum consecutive
sentences of seven and twenty-five years. At the resentencing
hearing the district court heard argument from counsel and a
statement by Johnson, discussed its consideration of the factors in
*
U.S. Sentencing Guidelines Manual (USSG) (2002).
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18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006), and sentenced
Johnson to 405 months of imprisonment on the kidnaping count,
twenty years concurrent on the witness tampering count, seven years
consecutive on the first § 924(c) count, and twenty-five years
consecutive on the second § 924(c) count, for a total of 789 months
of imprisonment. The district court also ordered restitution in
amounts identical to the original judgment, and ordered that the
restitution be paid in monthly installments of $25. Johnson timely
appealed.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal, but questions whether the district
court erred in permitting Johnson to be tried and sentenced on an
indictment that did not allege specific violations of
§ 924(c)(1)(C), and whether the district court exceeded its
authority on remand by imposing a payment schedule for the
restitution. In a pro se supplemental brief, Johnson asserts that
the district court violated his Fifth Amendment rights by
converting generic § 924(c) convictions into § 924(c)(1)(C)
offenses by a preponderance of the evidence in violation of Booker,
that the court erred in finding separate uses of a firearm and
consequently imposing consecutive sentences, and that the district
court erred in calculating the Guideline range because the
imposition of an enhancement under USSG § 2A3.1(b)(1) amounted to
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double counting in light of the sentences on the § 924(c)
convictions. The Government declined to file a brief.
Because Johnson did not challenge the validity of the
indictment or his § 924(c) convictions or sentences in the first
appeal, the mandate rule precludes him from asserting these
challenges at this point. United States v. Bell, 5 F.3d 64, 66-67
(4th Cir. 1993). Johnson does not assert any of the exceptions to
the mandate rule, but relies on the principles of Booker to argue
error related to his § 924(c) sentences. Even if we consider his
arguments, Johnson is not entitled to any relief. This court has
held that the mandatory consecutive sentencing scheme established
in § 924(c) for multiple convictions under the statute was not
affected by Booker. United States v. Robinson, 404 F.3d 850, 862
(4th Cir.), cert. denied, 126 S. Ct. 288 (2005), and 126 S. Ct. 469
(2005). Nor did the district court engage in impermissible fact-
finding to impose separate consecutive sentences under § 924(c), as
the two § 924(c) counts in the indictment clearly charged separate
incidents, and the jury’s verdict thus supported the enhanced
sentence mandated by § 924(c)(1)(C) for a second conviction. Deal
v. United States, 508 U.S. 129, 133 (1993). Finally, this court
has concluded that the sentencing enhancements under § 924(c)(1)(C)
for successive § 924(c) convictions fall within the prior
convictions exception to the rule announced in Apprendi v. New
Jersey, 530 U.S. 466 (2000), and thus are not required to be
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alleged in the indictment or submitted to the jury. United States
v. Cristobal, 293 F.3d 134, 146-47 & n.20 (4th Cir. 2002).
Counsel next suggests that the district court erred in
imposing a restitution payment schedule because no payment schedule
was imposed in the original restitution order and the restitution
order was affirmed on appeal. We conclude that this argument is
without merit. The statute that prescribes the administrative
details of restitution requires the district court to specify a
payment schedule in the restitution order. 18 U.S.C. § 3664(f)(2)
(2000). The district court erred in failing to include a payment
schedule in the original restitution order, but our mandate in
Johnson’s prior appeal did not preclude the district court from
imposing a payment schedule in the amended judgment on remand.
We have considered the issues raised in Johnson’s pro se
brief and find them to be without merit. In accordance with
Anders, we have reviewed the entire record in this case and have
found no meritorious issues for appeal. We therefore affirm
Johnson’s sentence. This court requires that counsel inform
Johnson, in writing, of the right to petition the Supreme Court of
the United States for further review. If Johnson requests that a
petition be filed, but counsel believes that such a petition would
be frivolous, then counsel may move in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Johnson. We dispense with oral argument
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because the facts and legal contentions are adequately presented in
the materials before the court and argument would not aid the
decisional process.
AFFIRMED
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United States v. Johnson
Combined Opinion