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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 6, 2002 Decided June 17, 2003
No. 01-3087
UNITED STATES OF AMERICA,
APPELLEE
v.
SPENCER L. JOHNSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 98cr00062–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause and filed the briefs for appellant. A. J. Kramer,
Federal Public Defender, entered an appearance.
Valinda Jones, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Roscoe C. Howard,
Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese III, and
Thomas C. Black, Assistant U.S. Attorneys.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: TATEL and GARLAND, Circuit Judges, and WILLIAMS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: In this appeal we consider Spenc-
er Johnson’s challenges to his conviction and sentence for
possessing with intent to distribute 50 grams or more of
cocaine base. Johnson levels one challenge premised on the
Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), and three attacking the district court’s refus-
al to depart downward from the sentence prescribed by the
United States Sentencing Guidelines (U.S.S.G.). Although
the appeal poses procedural complexities as a consequence of
the loss and later recovery of the court reporter’s notes of
Johnson’s sentencing hearing, the substantive analysis of
Johnson’s claims is relatively straightforward. For the rea-
sons stated below, we reject the defendant’s arguments and
affirm the judgment of the district court.
I
On June 22, 1998, a jury found Johnson guilty of possessing
with intent to distribute 50 grams or more of cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii), and of
simple possession of marijuana, in violation of 21 U.S.C.
§ 844(a). Johnson was sentenced to 121 months’ incarcera-
tion and 5 years’ supervised release for the first count, and 12
months’ incarceration and one year of supervised release for
the second, to be served concurrently. Johnson appealed his
conviction, arguing that the prosecutor had made improper
statements in his closing argument to the jury. This court
found that, although the prosecutor’s remarks were improper,
the error was harmless. See United States v. Johnson, 231
F.3d 43, 49 (D.C. Cir. 2000) [hereinafter Johnson I].
Johnson also advised the court that he wanted to raise
several challenges to his sentence, particularly a claim that
the district court should have granted a two-level adjustment
to his offense level under the so-called ‘‘safety valve’’ provi-
sions of the Sentencing Guidelines, U.S.S.G. §§ 2D1.1(b)(6) &
5C1.2. Johnson contended that he was hampered in making
3
these challenges, however, because the court reporter’s notes
and any transcript of the sentencing hearing had been lost by
the Miller Reporting Company, and because the sentencing
judge—who under such circumstances would normally have
approved a reconstruction of the proceedings pursuant to
Federal Rule of Appellate Procedure 10(c)—had fallen ill and
was unable to reconstruct the record. Agreeing that Johnson
had been disadvantaged, the court remanded the case for
resentencing ‘‘[i]n light of these unusual circumstances.’’ 231
F.3d at 45.
On remand, the circumstances became even more unusual.
Shortly after the decision in Johnson I, Miller Reporting
found the court reporter’s notes and reproduced the missing
transcript. The government then moved to recall this court’s
mandate and to reopen the appeal to permit Johnson to raise
any issues that appeared in the newly-available transcript,
arguing that the existence of the transcript rendered resen-
tencing unnecessary. In response, the court issued an order
denying the government’s motion, ‘‘without prejudice to the
matters set forth by [the government] TTT being presented to
the district court for its consideration.’’ United States v.
Johnson, No. 98–3111, Order at 1 (D.C. Cir. Mar. 1, 2001).
At the resentencing, Johnson abandoned the safety valve
argument and instead raised several claims that he had not
asserted at his original sentencing. Chief among these was
an attack on his conviction and sentence based upon the
Supreme Court’s decision in Apprendi v. New Jersey, 530
U.S. 466 (2000), a decision that had not been issued until after
Johnson submitted his briefs in Johnson I. Johnson also
contended that he was entitled, on a number of grounds, to a
departure from the sentence otherwise dictated by the Sen-
tencing Guidelines. Finally, Johnson argued that the resen-
tencing court should consider all of these claims de novo,
despite his failure to raise them at his original sentencing.
The district court rejected Johnson’s request for a de novo
sentencing. Finding that the limited purpose of the remand
had evaporated once the reporter’s notes were discovered and
transcribed, and that the transcript showed that there was
4
‘‘nothing wrong with what [the original sentencing judge] did,
why he did it, or how he did it,’’ the court held that ‘‘the
purpose for the remand [would best be] served by reissuing
or newly issuing’’ the same judgment and commitment. Re-
sentencing Tr. at 48–49 (July 5, 2001). In the alternative, the
court held that there was no Apprendi error in Johnson’s
trial or sentencing, see id. at 50–51, and that the defendant
was entitled to ‘‘no downward adjustment of any kind,’’
Resentencing Tr. at 9 (July 16, 2001); see id. at 13. Accord-
ingly, the court reimposed the original sentence.
Johnson now appeals from his resentencing. Of the many
arguments raised during the remand, he presses only four
here. The first is the claim of Apprendi error, which we
consider in Part II below. The remaining three are claims
for departure from the Sentencing Guidelines, which we
consider in Part III.
II
In Apprendi, the Supreme Court held that, ‘‘[o]ther than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maxi-
mum must be submitted to a jury, and proved beyond a
reasonable doubt.’’ 530 U.S. at 490. Johnson contends that
both his conviction and his sentence under § 841(b)(1)(A)(iii),
for a drug offense involving 50 grams or more of cocaine base,
violate this rule. We begin by addressing the appropriate
standard of review, and then consider the merits of Johnson’s
Apprendi argument in Parts II.B and II.C below.
A
Ordinarily, we would review an Apprendi claim not raised
at trial or sentencing only for plain error under Federal Rule
of Criminal Procedure 52(b)—even when Apprendi itself was
not issued until after the sentencing took place. See United
States v. Cotton, 535 U.S. 625, 631 (2002); see also United
States v. Saro, 24 F.3d 283, 286–87 (D.C. Cir. 1994). Johnson
asks us to eschew this usual course in light of the remand for
resentencing that was ordered in Johnson I. Although he did
5
not raise any of his current objections at his trial or initial
sentencing, Johnson maintains that the district court should
have treated the resentencing as a ‘‘replacement’’ sentencing
and reviewed his claims de novo. He further contends that
this court should now review the district court’s rejection of
those claims as if they had been properly raised below.
While he does not quite close the loop, the implication of
Johnson’s argument is that we should review the district
court’s decision under the harmless error standard of Rule
52(a). See Neder v. United States, 527 U.S. 1, 7–9 (1999).
At the time this appeal was argued, the standard governing
remands for resentencing was that stated in United States v.
Whren: ‘‘[U]pon a resentencing occasioned by a remand,
unless the court of appeals expressly directs otherwise, the
district court may consider only such new arguments or new
facts as are made newly relevant by the court of appeals’
decision—whether by the reasoning or by the result.’’ 111
F.3d 956, 960 (D.C. Cir. 1997). After oral argument in this
case, the en banc court decided United States v. McCoy, 313
F.3d 561 (D.C. Cir. 2002). In McCoy, we held that, when a
defendant seeks to raise for the first time on remand an
argument that was only ‘‘contingently relevant in the initial
sentencing (but the contingency did not then materialize),’’
and when ‘‘the district court’s action on remand renders the
contention determinative,’’ a defendant may raise the previ-
ously contingent issue if ‘‘she [can] establish ‘good cause’ TTT
for not having raised it sooner.’’ Id. at 561–62.
In neither McCoy nor Whren did the defendant seek to
raise on remand an argument that had become newly avail-
able because of an intervening change in law, like the Ap-
prendi decision in Johnson’s case. Nor need we decide today
the standard that would ordinarily apply in such cases. As
we have noted, this is an unusual case that became even more
unusual as events unfolded. Although we might not have
employed the same adjective, we are sympathetic to the
district judge’s statement that it ‘‘seem[ed] surrealistic’’ to
pretend that the transcript of the original sentencing did not
exist when it did. Resentencing Tr. at 25 (July 5, 2001). As
the judge put it: ‘‘Why should I act as though there is no
6
transcript and search for error and problems when we now
have the transcript and there was no error and there are no
problems?’’ Id. at 37.
We have no good answer to the judge’s query. Indeed, we
have no good answer as to why this case should be treated
any differently than if the missing transcript had been discov-
ered before our decision in Johnson I, rather than shortly
thereafter. That is particularly so since defendant’s Appren-
di claim has nothing to do with anything he discovered in the
lost transcript. We therefore conclude, in retrospect, that we
should have granted the government’s motion to recall the
mandate and simply reinstated Johnson’s initial appeal. If
we had done that, we would have reviewed Johnson’s Appren-
di argument under the plain error standard, notwithstanding
the intervening change in law. See Cotton, 535 U.S. at 631;
Johnson v. United States, 520 U.S. 461, 464, 466–67 (1997);
United States v. Webb, 255 F.3d 890, 897 (D.C. Cir. 2001).1
And we see no reason to do otherwise today simply because
the Miller Reporting Company first lost, and then found, the
court reporter’s notes.2
Johnson contends that there is a good reason to modify our
standard of review: considering his claims under a more
liberal standard, he argues, would deter Miller Reporting
1 See also United States v. Perkins, 161 F.3d 66, 73 (D.C. Cir.
1998) (noting that, although the Supreme Court applies plain rather
than harmless error review to claims premised on intervening
changes in law notwithstanding that an objection would have been
futile at the time of trial, it evaluates the plainness of the error
based on the state of the law at the time of appellate consideration).
2 At the resentencing, the government argued for application of
an even more restrictive ‘‘cause and prejudice’’ standard of review
because the defendant failed to raise his Apprendi claim the first
time he came before this court. See generally Perkins, 161 F.3d at
71. Johnson had the opportunity to do so since Apprendi was
issued four months prior to the decision in Johnson I, albeit after
the briefs were filed. The government has abandoned this argu-
ment on appeal, Appellee’s Br. at 16 n.4, and we need not consider
it because it makes no difference to our disposition of the case, see
Perkins, 161 F.3d at 71.
7
from neglecting its obligations in the future. We are doubtful
that we have the authority to alter the standard of review of a
defendant’s appeal in order to deter or punish a court report-
ing company. Cf. Bank of Nova Scotia v. United States, 487
U.S. 250, 254–56 (1988) (holding that ‘‘a federal court may not
invoke supervisory power to circumvent the harmless-error
inquiry prescribed by Federal Rule of Criminal Procedure
52(a)’’ in order to deter prosecutorial misconduct); United
States v. Tucker, 8 F.3d 673, 675 (9th Cir. 1993) (en banc)
(‘‘[A] court of appeals ‘may not disregard the doctrine of
harmless error’ in order to punish what it views as the
misconduct of a court reporter.’’ (quoting Bank of Nova
Scotia, 487 U.S. at 256)). Moreover, whatever may be the
deterrent value of remanding a case for resentencing when a
transcript has been lost, see Johnson I, 231 F.3d at 49, we
find it difficult to fathom how a decision by this court to
review a defendant’s case under a harmless rather than plain
error standard would have any effect at all on a reporting
company’s behavior. There are, in any event, far more direct
ways of penalizing a court reporting company that fails to live
up to its contractual and statutory responsibilities.3 Accord-
ingly, we will employ the usual plain error standard in
reviewing Johnson’s Apprendi claim.
B
Having finished wrestling with the standard of review, we
find the balance of the analysis relatively straightforward.
Johnson asserts that the district court committed Apprendi
error by entering a judgment of conviction under
§ 841(b)(1)(A)(iii), which is prescribed for drug offenses in-
volving 50 grams or more of cocaine base, rather than under
§ 841(b)(1)(C), which applies where the violation involves
3 See Tucker, 8 F.3d at 677 (recognizing that federal courts
‘‘undoubtedly have the authority to sanction dilatory court report-
ers’’ through, for example, the imposition of fines); United States v.
Johnson, 732 F.2d 379, 383 (4th Cir. 1984) (‘‘Both [the court of
appeals] and the district court have supervisory powers over court
reporters including the power to punish for civil contempt in
appropriate cases.’’).
8
‘‘ ‘any detectable amount’ ’’ of a controlled substance, Webb,
255 F.3d at 897 (quoting United States v. Allen, 960 F.2d
1055, 1058 (D.C. Cir. 1992)). The judgment of conviction was
error, Johnson contends, because the trial court did not
instruct the jury that to convict it must find beyond a
reasonable doubt: (1) that the quantity of drugs at issue was
at least 50 grams; and (2) that the drug in question was a
form of cocaine base known as ‘‘crack.’’ In the absence of
such instructions, Johnson argues, he could not lawfully have
been convicted of violating anything other than
§ 841(b)(1)(C), which has no requirements regarding drug
quantity or type.
Johnson further contends that this error led to several
errors in sentencing. Although the term of imprisonment
that Johnson received (121 months) is below the statutory
maximum (20 years) applicable to the § 841(b)(1)(C) charge,
Johnson asserts that the term of supervised release that the
court imposed (5 years) is greater than the maximum permit-
ted under § 841(b)(1)(C)—which he maintains is 3 years—and
is appropriate only for a conviction under § 841(b)(1)(A)(iii).4
4 Johnson’s argument is based on 18 U.S.C. § 3583(b)(2), which
states that ‘‘[e]xcept as otherwise provided,’’ the term of supervised
release for a Class C felony shall be ‘‘not more than three years.’’
Section 841(b)(1)(C), which carries a 20–year maximum term of
imprisonment, is a Class C offense. See 18 U.S.C. § 3559(a)(3).
Section 841(b)(1)(C), however, expressly provides for a term of
supervised release of ‘‘at least 3 years.’’ 21 U.S.C. § 841(b)(1)(C)
(emphasis added). At the time of Johnson’s trial, there was a split
in the circuits regarding the maximum term of supervised release
under § 841(b)(1)(C). Compare, e.g., United States v. Kelly, 974
F.2d 22, 24 (5th Cir. 1992) (holding that 3 years was the maximum
term), with United States v. Garcia, 112 F.3d 395, 397–98 (9th Cir.
1997) (holding that a term of supervised release greater than 3
years could be imposed). After the oral argument of this appeal,
Congress resolved the circuit conflict by adding the words ‘‘Not-
withstanding section 3583 of title 18’’ to the supervisory release
provision of § 841(b)(1)(C), see Pub. L. No. 107–273, § 3005(a), 116
Stat. 1758, 1805 (Nov. 2, 2002), thus making it clear that the term of
supervised release for a conviction under that section can exceed 3
years, see H.R. CONF. REP. NO. 107–685, at 188–89 (2002).
9
Johnson also argues that, while there is no mandatory mini-
mum sentence under § 841(b)(1)(C), his conviction under
§ 841(b)(1)(A)(iii) subjected him to the latter’s mandatory
minimum sentence of 120 months. Finally, in an argument
we reserve for consideration until Part II.C below, Johnson
contends that if he had been treated as possessing non-crack
cocaine base rather than crack cocaine, his sentencing guide-
line range would have been 21 to 27 months, rather than the
121- to 151-month range that was applied in his case, see
Presentence Invest. Rep. at 7 (June 1, 2001). Compare
U.S.S.G. § 2D1.1(c)(12), with id. § 2D1.1(c)(4).
Under the plain error standard, we can correct these
alleged errors only if there was ‘‘(1) ‘error,’ (2) that is ‘plain,’
and (3) that ‘affect[s] substantial rights.’ ’’ Johnson, 520 U.S.
at 467 (quoting United States v. Olano, 507 U.S. 725, 732
(1993)). ‘‘If all three conditions are met, an appellate court
may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.’’ Id.
(internal quotation marks omitted). Although the govern-
ment argues that Johnson’s claims fail all four prongs of the
plain error test, its argument regarding the fourth prong is
directly supported by the Supreme Court’s decision in United
States v. Cotton and our own opinion in United States v.
Webb, and is more than sufficient to dispose of this appeal.
Accordingly, we proceed directly to a discussion of that
prong, and in particular do not pause to consider the validity
of any of Johnson’s claims of error.
The defendants in Cotton were sentenced in accordance
with § 841(b)(1)(A)(iii), notwithstanding that the indictment
did not allege that their offense involved 50 grams or more of
cocaine base5 and that the trial court did not instruct the jury
that to convict it had to find that the offense involved that
threshold amount. 535 U.S. at 627–28. Like Johnson, the
Cotton defendants did not object either at trial or sentencing;
as in the instant case, Apprendi was not decided until Cotton
was pending on appeal. Id. at 628. In the Supreme Court,
5 Johnson’s indictment did so allege. See Indictment at 1.
10
the defendants’ challenge focused on the omission of the 50–
gram allegation from the indictment. (In federal prosecu-
tions, such a fact must be charged in the indictment, as well
as submitted to the petit jury. Apprendi, 530 U.S. at 476,
490.) The Court held that plain error was the appropriate
standard of review in light of the defendants’ failure to object
in the district court, and proceeded directly to the fourth
prong of that standard. Cotton, 535 U.S. at 631–33.
Citing an earlier case in which a district court’s error had
been the failure to submit an element of an offense to a petit
jury, the Supreme Court declared that where the evidence
that an offense involves at least 50 grams of cocaine base is
‘‘ ‘overwhelming’ ’’ and ‘‘ ‘essentially uncontroverted,’ ’’ there
is ‘‘ ‘no basis for concluding that [an] error seriously affect[s]
the fairness, integrity or public reputation of judicial proceed-
ings,’ ’’ as required by the fourth prong. Id. at 632–33
(quoting Johnson, 520 U.S. at 470). The Court then went on
to conclude that there had been no plain error in Cotton,
noting the overwhelming evidence of the quantity of drugs
involved in the defendants’ conspiracy, and concluding that
‘‘[s]urely the grand jury, having found that the conspiracy
existed, would have also found that the conspiracy involved at
least 50 grams of cocaine base.’’ Id. at 633.
Presaging the analysis applied by the Supreme Court in
Cotton, this court employed a similar approach in Webb. 255
F.3d at 900–02. Webb was charged with (inter alia) three
counts of narcotics violations involving cocaine base, one for
each of three drug distributions. The count involving the
third transaction was the only one in which the quantity
exceeded 50 grams, and was therefore the only one to charge
a violation of § 841(b)(1)(A)(iii). Id. at 892. Following pre-
Apprendi precedent, the district court told the jury (without
objection) that it could convict on each count without finding
that the defendant distributed any particular amount of co-
caine. See id. at 893, 897. After the jury returned convic-
tions on all counts, the court (again without objection) calcu-
lated the total quantity of cocaine base involved in all of the
counts and imposed a guideline sentence appropriate for a
violation of § 841(b)(1)(A)(iii). See id. at 893.
11
On appeal, Webb asserted, among other things, that his
sentence violated Apprendi, which had been decided in the
interim. 255 F.3d at 897. Employing the plain error test
and proceeding directly to the fourth prong, we concluded
that the evidence of drug quantity was both ‘‘ ‘overwhelm-
ing’ ’’ and ‘‘ ‘essentially uncontroverted.’ ’’ Id. at 900–01
(quoting Johnson, 520 U.S. at 470). We reasoned as follows:
[The] counts involved three separate transactions: the
government alleged that on each occasion, Webb sold a
quantity of crack to the government’s cooperating wit-
ness. For the jury to have convicted Webb of each of
these three incidents, the jurors must have believed that
Webb engaged in each of the three transactions and was
responsible for the amounts he provided. The specific
amount involved in each transaction was established by
the testimony and report of a government chemist, and
was confirmed by tape recordings of conversations be-
tween Webb and [a cooperating witness], in which the
two discussed the quantities of crack involved in the
transactions. Webb did nothing to challenge the evi-
dence of drug quantity at either trial or sentencing, and
even on appeal offers no scenario under which the jury
could have convicted him of the transactions, yet rational-
ly found that they involved different quantities than
those testified to by the government chemist.
Id. at 901.
The analysis applied in Cotton and Webb is equally applica-
ble here. Three officers testified that they saw Johnson
throw objects onto a roof as he was being pursued by police.
See Trial Tr. at 57 (June 18, 1998); id. at 95–96; Trial Tr. at
12 (June 19, 1998). The police recovered two bags of drugs
from the rooftop where Johnson had tossed the objects, see
Trial Tr. at 51 (June 17, 1998), and a government chemist
testified that one of the bags contained 30.8 grams of cocaine
base while the other contained 30.5 grams, see Trial Tr. at 45
(June 19, 1998). Johnson, testifying in his own defense, told
the jury that the drugs did not belong to him. Id. at 111–12.
He did not differentiate between the two bags, and did not
12
dispute the drug quantities specified by the chemist. He thus
offered the jurors no scenario under which they could have
convicted him of unlawful possession with intent to distribute
cocaine base, yet found that the quantity involved was less
than 50 grams.6
Johnson contends that he had no reason to contest drug
quantity at trial because the trial took place before the
Supreme Court issued the Apprendi decision. Webb made
the same argument, and we responded in this way:
[E]ven accepting Webb’s contention that he had no rea-
son to contest quantity at trial, he had every incentive to
contest it at sentencing. The presentence report’s rec-
ommendations concerning the quantity of drugs involved
in Webb’s transactions, and the district court’s adoption
of those recommendations, dramatically affected Webb’s
sentencing range. Yet, TTT he did not dispute the accu-
racy of the drug quantities there reported. Moreover,
whatever his incentives below, Webb surely has an incen-
tive on appeal to suggest a scenario under which he could
plausibly have disputed the drug quantities specified by
the chemist. Even now, however, he suggests none.
255 F.3d. at 901–02 (citations omitted). In virtually every
respect, Johnson’s situation is the same as Webb’s, except
that Johnson had an additional opportunity at his resentenc-
ing to object to the quantity calculation and to pose a
plausible scenario under which the jury could have found him
guilty yet responsible for less than the entire quantity of
drugs. He did not do so.7
6 We further note that the verdict form given to the jury required
it to state its verdict on a ‘‘charge of unlawful possession with intent
to distribute 50 or more grams of cocaine base, also known as
crack.’’ Appellee’s Supp. App. at A1 (emphasis added). The jury
marked the box designated ‘‘guilty.’’ Id.
7When confronted with this deficiency at oral argument, defense
counsel suggested that the jury might have found that only one of
the two bags of cocaine base found on the roof belonged to
Johnson—who, under this scenario, would have had the bad luck of
throwing his bag of crack onto a roof that already happened to
13
Accordingly, we conclude that Johnson’s conviction for
possessing with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(A)(iii), survives plain error review of Johnson’s claim of
Apprendi error based on drug quantity.
C
We reach the same conclusion regarding Johnson’s claim
that the trial judge violated Apprendi by failing to instruct
the jury regarding the ‘‘type’’ of drug that he was charged
with possessing. Johnson contends that the ‘‘cocaine base’’
specified in § 841(b)(1)(A)(iii) refers only to the ‘‘crack’’ form
of cocaine base;8 that he was therefore entitled to an instruc-
tion that the jury could not convict unless it found, beyond a
reasonable doubt, that the drug contained in the bags was
crack; and that, because the court gave no such instruction, it
could only convict and sentence him under § 841(b)(1)(C).
Without addressing the validity of any of these claims, upon
none of which this circuit has ever ruled, we again conclude
that there was no plain error in this case.
At Johnson’s trial, the government’s chemist equated co-
caine base with crack. Trial Tr. at 44 (June 19, 1998). A
narcotics expert testified that the weight of the drugs in each
of the bags (approximately 31 grams) is a weight at which
‘‘crack cocaine’’ is commonly sold on the street. Id. at 71–72.
In addition, he gave a description of what ‘‘crack’’ looks like,
contain another, virtually identical bag of crack. We find this
scenario implausible. In any event, because Webb made clear that a
defendant must present a plausible scenario to satisfy his burden of
showing plain error, the proffer of such a scenario at oral argument
comes too late in the proceedings to affect our disposition. See
United States v. Thompson, 27 F.3d 671, 677 n.1 (D.C. Cir. 1994).
8 For support, Johnson relies on a provision of the Sentencing
Guidelines. See U.S.S.G. § 2D1.1(c), note D (‘‘ ‘Cocaine base,’ for
the purposes of this guideline, means ‘crack.’ ‘Crack’ is the street
name for a form of cocaine base, usually prepared by processing
cocaine hydrochloride and sodium bicarbonate, and usually appear-
ing in a lumpy, rocklike form.’’).
14
id. at 59–61, which matched the arresting officer’s description
of the drugs he recovered from the roof, Trial Tr. at 61–62
(June 17, 1998); Trial Tr. at 40 (June 18, 1998). That officer
also testified that both bags of drugs contained ‘‘crack co-
caine.’’ Trial Tr. at 51 (June 17, 1998). Johnson neither
objected to this testimony nor contended that the substance
was other than crack cocaine. And again, despite the fact
that, if his argument were correct, the difference would have
been important for sentencing purposes even prior to Ap-
prendi, see supra note 8, Johnson never claimed at either
sentencing or resentencing that the drugs were a form of
cocaine base other than crack. Nor did he do so on this
appeal.
Accordingly, we again find no plain error, and therefore
affirm Johnson’s conviction for violating 21 U.S.C. § 841(a)(1)
and (b)(1)(A)(iii) by possessing with intent to distribute 50 or
more grams of cocaine base. Moreover, as we held in Webb,
because the conviction survives, so, too, does the sentence
that is concededly appropriate for that offense. 255 F.3d at
900, 902.
III
In addition to his Apprendi challenge, Johnson argues that
the district court erred in failing to depart downward from
the otherwise applicable guideline sentence on three
grounds.9 At oral argument, Johnson’s counsel conceded that
two of those departure claims depend upon the success of
Johnson’s Apprendi challenge. Having rejected that chal-
lenge, we agree that those two departure claims are now
moot.
The first of those is Johnson’s claim that he is entitled to
what he calls a ‘‘tail-wagging-dog’’ departure. Johnson ar-
9 Although the Statement of Facts section of Johnson’s opening
brief mentioned many other departure claims that Johnson had
raised at his resentencing, the defendant’s briefs contain arguments
concerning only the three departures discussed in this Part. At
oral argument, Johnson’s counsel clarified that only those three are
at issue on appeal.
15
gues that, because post-Apprendi it is the jury rather than
the court that determines whether an offense involves at least
50 grams or more of crack, it is now atypical for a court’s
determination of drug quantity (the ‘‘tail’’) to increase a
defendant’s sentence significantly above that required by the
jury’s verdict (the ‘‘dog’’). Whatever the validity of defen-
dant’s argument, it has no application here. Because we have
affirmed Johnson’s conviction under § 841(b)(1)(A)(iii), he is
subject by statute to a 120–month mandatory minimum sen-
tence. See 21 U.S.C. § 841(b)(1)(A)(iii). The one additional
month imposed by the sentencing court puts very little tail on
that particular dog.
Johnson’s second now-mooted claim is based on U.S.S.G.
§ 5K2.20, which permits a departure below the applicable
guideline range when the defendant’s criminal conduct consti-
tutes ‘‘aberrant behavior.’’ Johnson argues that his involve-
ment in the drug crime for which he was convicted was
‘‘aberrant’’ in light of his relatively clean record and good
behavior while in prison. But § 5K2.20 is inapplicable on its
face to a defendant like Johnson, who has been convicted of
an offense that carries a mandatory minimum sentence. See
U.S.S.G. § 5K2.20 (providing that a ‘‘court may not depart
below the guideline range on this basis if TTT the instant
offense of conviction is a serious drug trafficking offense’’);
id. § 5K2.20, cmt. n.1 (defining ‘‘serious drug trafficking
offense’’ as any controlled substance offense that ‘‘results in
the imposition of a mandatory minimum term of imprison-
ment’’).
Johnson’s sole remaining claim is for a departure based on
a theory he calls ‘‘residual doubt.’’ Such a departure should
be granted, Johnson contends, because there remains residual
doubt as to whether the prosecutor’s closing argument, which
this court found improper in Johnson I, affected the verdict.
Johnson concedes that no court has ever granted a departure
on this theory, and further concedes that he failed to raise it
at his original sentencing. He maintains, however, that John-
son I made the claim ‘‘newly relevant,’’ and therefore subject
to de novo review upon resentencing under the Whren stan-
16
dard, by holding that the prosecutor’s remarks constituted
error.
We need expend no time discussing either Johnson’s theory
or the appropriate standard of review, as it is plain that he
has simply misunderstood the panel’s decision in Johnson I.
In holding that the prosecutor’s improper comments were
harmless error, the court necessarily concluded that they did
not have ‘‘substantial and injurious effect or influence in
determining the jury’s verdict.’’ Kotteakos v. United States,
328 U.S. 750, 776 (1946). Indeed, the court went further,
stating that it did not think it ‘‘plausible, in light of the
formidable evidence arrayed against Johnson, that the prose-
cutor’s remarks are what account[ed] for Johnson’s relatively
speedy conviction.’’ 231 F.3d at 48. There is nothing in
these statements to suggest that the Johnson I panel had any
‘‘residual doubt,’’ either about the impact of the prosecutor’s
remarks on the jury verdict or about Johnson’s guilt. And
our references in Part II to the overwhelming nature of the
evidence against the defendant should make clear where this
panel stands as well.
IV
For the foregoing reasons, the defendant’s conviction and
sentence are
Affirmed.