United States v. Johnson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 8, 2005

Charles R. Fulbruge III
Clerk
No. 03-60190
Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DARIC M. JOHNSON also known as, Skeeter

Defendant - Appellant

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Appeal from the United States District Court
for the Southern District of Mississippi
(02-CR-9)
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before JONES, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

The Supreme Court vacated the judgment in this case and

remanded it to this Court to reconsider in light of United States

v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005). In supplemental

briefing requested by this Court, Johnson contends, and the

government agrees, that resentencing is required because Johnson

was sentenced in violation of the Sixth Amendment. We agree and

*
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this opinion should not be published and is not precedent except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.
 No. 03-60190
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therefore vacate Johnson’s sentence and remand to the district

court for resentencing.

In October of 2002, a jury convicted Johnson of five counts

of a six-count indictment. Count 1 charged Johnson with

conspiracy to distribute in excess of 50 grams of cocaine base,

in excess of 100 kilograms of marijuana, and in excess of 5

kilograms of cocaine hydrochloride in violation of 21 U.S.C. §

846. Counts 2 through 4 charged Johnson with three violations of

21 U.S.C. § 841(a)(1): possession with intent to distribute less

than 50 kilograms of marijuana, possession with intent to

distribute in excess of 5 but less than 50 grams of cocaine base,

and possession with intent to distribute less than 500 grams of

cocaine hydrochloride. Count 5 charged Johnson with being a

convicted felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1) and § 924(a)(2).

The district court sentenced Johnson under the United States

Sentencing Guidelines. Johnson’s base offense level of 38 relied

on the district court’s finding that Johnson was responsible for

possessing in excess of 1.5 kilograms of cocaine base. See

U.S.S.G. § 2D1.1(c). The district court also enhanced Johnson’s

offense level a total of six points for possessing a firearm

during the commission of the offense and for taking a leadership

role in the offense. See U.S.S.G. § 2D1.1(b)(1); U.S.S.G. §

3B1.1(a). This resulted in a total offense level of 44, but

because the Sentencing Guidelines only provide for a maximum
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level of 43, Johnson’s sentence was calculated based on an

offense level of 43. Combined with a criminal history category

of VI, the Sentencing Guidelines yielded a sentence of life

imprisonment, which the district court imposed.

During sentencing, Johnson objected to the district court

basing the sentence on a drug quantity in excess of that found by

the jury. He further objected to the enhancements for leadership

and possession of a firearm because the jury never found Johnson

played a leadership role in the offense or possessed a firearm

during the offense. Johnson maintained these objections on

appeal before this Court and again in his application for writ of

certiorari before the Supreme Court.

While his application for writ of certiorari was pending,

the Supreme Court issued its opinion in Booker. There, the Court

held that, under the Sixth Amendment, a defendant may not be

sentenced based on facts neither found by the jury nor admitted

by the defendant under a mandatory sentencing scheme. See Booker

125 S. Ct. at 756.

In light of this holding, it is clear that Johnson’s Sixth

Amendment rights were violated. Johnson has adequately preserved

his challenge to his sentence by raising objections at sentencing

and on appeal. It is impossible on this record to say that the

district court’s error was harmless where the sentencing judge

gave no indication that he was imposing the sentence independent

of the Sentencing Guidelines. See United States v. Mares, 402
 No. 03-60190
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F.3d 511, 520 n.9 (5th Cir. 2005) (where a defendant has

preserved a Booker challenge in the district court, “we will

ordinarily vacate the sentence and remand, unless we can say the

error is harmless.”) Consequently, Johnson is entitled to

resentencing in accordance with the principles of Booker.

We VACATE Johnson’s sentence and REMAND to the district

court for resentencing.