[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 15, 2007
No. 06-16348 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00066-CR-3-LAC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 15, 2007)
Before TJOFLAT, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
I.
David Johnson appeals his convictions and sentences for conspiracy to
distribute and possess with intent to distribute 5 kilograms or more of cocaine and
50 grams or more of crack cocaine, in violation of 21 U.S.C. § 841, and possession
of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§ 924(c). For the reasons that follow, we affirm Johnson’s convictions and
sentences.
II.
Johnson and six others were charged with conspiracy to distribute and
possess with intent to distribute 50 grams or more of crack cocaine and 5
kilograms or more of cocaine, in violation of 21 U.S.C § 841 (Count 1), and
Johnson was charged with two others with possession of a firearm in furtherance of
a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count 2). Prior to
trial, the government filed a notice of intent to seek enhanced penalties under 21
U.S.C. § 851 based on Johnson’s prior controlled substance convictions in
September 2004 and January 2006. Johnson objected, asserting that the prior
convictions were part of the instant offense.
At trial, the government established the following:
Sharon Dixon operated a drug ring, selling drugs to Johnson, also known as
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“Day-Day,” his brother Fred, and his cousin, Alonzo. Johnson also involved his
girlfriend, a juvenile female named Ashley, and Valentine Vasser in the
distribution of drugs. Alonzo Johnson testified that Johnson sold drugs, and he
authenticated a video in which Johnson was seen counting money and selling drugs
from an area known as “the hole.” Alonzo also admitted that Dixon was the main
drug supply source for himself and Johnson.
Wiretaps from the investigation recorded calls from Johnson to Dixon and a
call from Dixon to an unidentified woman using Johnson’s phone. In the
background on that call, Johnson could be heard threatening Dixon by racking the
slide and firing a gun. The unidentified woman was heard saying, “David, David,
don’t.” These wiretaps led to arrest and search warrants for Johnson and others.
Deputy Blake Weekley with the Santa Rosa County Sheriff’s Office
searched Johnson’s home, finding crack on the kitchen table, plastic bags
consistent with drug packaging, baking soda and a spoon with crack residue, and
$8,000 cash. Authorities found pictures of Ashley with money and a bag with
Johnson’s clothes, identification, crack, and digital scale. Johnson later admitted
the bag was his. A few days after his arrest, Johnson spoke with authorities and
admitted that he, Dixon, Fred, and Vasser were involved in the distribution of
crack. While Johnson was in custody, he made frequent calls to Ashley in which
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the two discussed firearms, selling crack, and cooking crack.
During Weekley’s testimony, the government asked, “on the day you served
the warrant, was there also a juvenile caucasian female present?” Defense counsel
did not object to the characterization. Weekley responded that Johnson’s girlfriend
Ashley was present. In his testimony, Deputy Sheriff Chris Williams confirmed
that a white female named Ashley was present during the search.
Authorities also found a Jaguar registered to the same address Johnson listed
as his residence, which was a trailer located at “the hole.” The Jaguar matched the
car seen in the video Alonzo took. Authorities could not, however, identify who
owned the car. Inside the Jaguar, authorities found money, several firearms
including a short-barreled shotgun, and drugs. Police also found a gun box under a
trailer at “the hole” and a Chevy containing drugs and a firearm. The Chevy
belonged to Alonzo, but agents could not determine who used it. The Jaguar was
registered to an unidentified female, but Fred used it.
Deputy Scott Haines testified that he had conducted a traffic stop of Fred’s
car, during which officers found a handgun, money, a ledger, and bank receipts.
There also was a note signed by “Day-Day,” which referred to jail and Ashley.
Officers assumed the note was written by Johnson. At some other point during the
investigation, authorities observed Johnson, whom they knew to have an
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outstanding warrant, sitting alone in a blue Cadillac. A uniformed officer
approached the car, and ordered Johnson to exit. A subsequent search of the car
uncovered crack cocaine.
After the government rested its case-in-chief, and the court denied Johnson’s
motion for judgment of acquittal, Johnson presented testimony of his sister, Linda.
According to Linda, Johnson did not live at “the hole,” but, rather, he lived with
Ashley. “The hole” was a plot of land with three mobile homes located on the site,
all of which used the same address. Linda also testified that Johnson drove a
Cadillac, Fred drove a Jaguar, and Alonzo drove a Chevy. After Linda’s
testimony, Johnson rested his case.
The government called Tabitha Dixon as a rebuttal witness. Tabitha was
Sharon Dixon’s girlfriend and knew Johnson through his dealings with Dixon.
Tabitha witnessed Johnson buy drugs from Dixon between eight and ten times.
Dixon would drive to “the hole,” where Johnson and the others would approach the
window of the car and purchase drugs from Dixon and Tabitha. Tabitha also knew
Ashley, and, after Johnson’s arrest, Ashley told Tabitha that Johnson taught her
how to cook crack and that she was trying to sell drugs. The government then
rested its case, and Johnson renewed his motion for judgment of acquittal, which
the court again denied.
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The jury convicted Johnson as charged in both Counts One and Two.
The probation officer prepared a presentence investigation report (“PSI”),
assigning a base offense level of 38 for Count 1, with a 2-level enhancement under
U.S.S.G. § 3B1.4 because Johnson used a minor to commit the offenses, for a total
offense level of 40. Count 2 was not grouped with Count 1 because Count 2
carried a mandatory minimum ten year consecutive sentence, as the firearm
involved was a short-barreled shotgun. 18 U.S.C. § 924(c)(1)(B). In determining
Johnson’s criminal history category, the probation officer listed numerous prior
convictions and juvenile adjudications, including the September 2004 conviction
for possession with intent to sell a controlled substance, and two January 2006
convictions for possession and possession with intent to sell a controlled substance.
As a result of the convictions, Johnson’s criminal history category was V. The
probation officer also noted that many of the prior convictions involved drugs and
weapons. The probation officer further noted that there were pending charges
involving drugs and weapons. With a total offense level of 40 and a criminal
history V, the guidelines range was 360 months to life imprisonment. 21 U.S.C.
§ 841, 851; U.S.S.G. § 5G1.1(b). For the firearm conviction, the probation officer
noted that Johnson could be heard firing a round into the phone during an
intercepted telephone call. Under § 924(c), Johnson faced an enhanced mandatory
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minimum sentence of ten years imprisonment because the offense involved a short-
barreled firearm.
Johnson objected to the PSI, asserting, inter alia, that the convictions used to
enhance his sentence were part of the overall conspiracy in the instant case and
should not be counted as prior convictions for enhancement purposes. He further
challenged the enhancement for the § 924(c) offense because there was no
evidence that the firearm was used in furtherance of the instant offense, and he
asserted that the type of firearm had not been charged in the indictment.
At sentencing, Johnson reiterated his argument that he should not face
enhanced penalties for the type of weapon involved in light of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.E.2d 621 (2005), because no facts
were proven to the jury. The court overruled the objection, but also noted that
even if the mandatory minimum was five years instead of ten years, the court could
exercise its discretion to impose a ten-year sentence. Johnson then objected to the
§ 851 enhancement based on prior convictions, asserting that the convictions were
sufficiently related to the instant offenses, as they involved the same case, the same
planning and execution, and the same local. The government disagreed because
the prior convictions were assigned two different case numbers and involved two
separate felonies, which occurred at different times and at different locations, one
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of which predated the dates of the instant charged conspiracy. The government
also noted that there was a third conviction that could be used for the § 851
enhancement. The court concluded that the PSI was accurate and overruled the
objection.
The court sentenced Johnson to mandatory life imprisonment on Count 1,
and a consecutive 240-month term on Count 2. The court also stated that it had
considered the sentencing factors in 18 U.S.C. § 3553(a), that the sentence was
mandatory by statute, that the sentence was sufficient, and that “no greater
sentence is necessary.” Johnson objected to the sentence as unfair.
Johnson now appeals.
III.
Johnson first argues that the government’s repeated introduction of
testimony concerning a white juvenile female during the trial of a black male, in
front of an all-white jury was irrelevant and prejudicial, and that the court should
have sua sponte stricken the testimony despite no objection having been made. He
contends that the evidence created the “probability” that he was convicted based on
prejudice, and the evidence had no probative value under Federal Rule of Evidence
403. According to Johnson, the error in admitting the testimony was not harmless
because there was no overwhelming evidence against him.
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As Johnson did not challenge the admission of the testimony at trial, this
court reviews for plain error. United States v. Schier, 438 F.3d 1104, 1106 n.1
(11th Cir. 2005); United States v. Campbell, 223 F.3d 1286, 1288 (11th Cir. 2000).
“An appellate court may not correct an error the defendant failed to raise in the
district court unless there is: ‘(1) error, (2) that is plain, and (3) that affects
substantial rights.’” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.
2005), cert. denied, 545 U.S. 1127 (2005) (citation omitted). “‘If all three
conditions are met, an appellate court may exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings.’” Id. (citation omitted). This court
determines whether an error had substantial influence on the outcome by weighing
the record as a whole. United States v. Hands, 184 F.3d 1322, 1329 (11th Cir.
1999).
Here, the testimony at issue did not prejudice Johnson’s substantial rights.
First, there were only two isolated comments in which Johnson’s girlfriend was
noted to be a white juvenile. See United States v. Diaz, 26 F.3d 1533, 1542 (11th
Cir. 1994) (concluding that there was no improper injection of race and affirming
conviction after witness recounted a statement referring to the defendant in a
racially derogatory manner). Second, the evidence against Johnson was
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overwhelming. The government submitted evidence from video tapes and wiretap
communications, as well as the testimony of some of Johnson’s co-conspirators.
The video showed Johnson selling drugs, and the wiretap detailed Johnson’s
conversation about drugs with Ashley. Alonzo and Tabitha both testified that they
had seen Johnson selling drugs. In statements to authorities, Johnson also admitted
his involvement and identified his sources. Finally, authorities seized evidence
from Johnson and his home that linked Johnson to drugs, drug sales, and weapons.
Also, the government admitted photographs of Ashley with money, thus enabling
the jury to see Ashley’s race. In light of this evidence, the admission of only two
comments regarding Johnson’s girlfriend’s race did not affect his substantial rights.
According, we affirm Johnson’s convictions.
Second, Johnson argues that the sentence imposed was unreasonable, and
that the court failed to consider all the evidence when it imposed an upward
variance from the ten-year mandatory minimum sentence on the firearm count. He
asserts that his sentence is disproportionate to the sentences imposed on his co-
conspirators, and that his young age and lack of prior prison time render the
sentence unreasonable.1
1
Johnson does not challenge the enhancement under either § 851 or § 924. His sole
argument is that the court’s decision to sentence him above the mandatory minimum for the
firearm count was unreasonable.
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After Booker, this court reviews a defendant’s sentence for reasonableness.
United States v. Dowd, 451 F.3d 1244, 1256 (11th Cir. 2006); United States v.
Winingear, 422 F.3d 1241, 1244 (11th Cir. 2005); United States v. Crawford, 407
F.3d 1174, 1179 (11th Cir. 2005). Johnson bears the burden of showing that his
sentence was unreasonable. United States v. Talley, 431 F.3d 784, 788 (11th Cir.
2005). In imposing sentence, the district court must consider the factors in
§ 3553(a), such as the nature and circumstances of the offense, the history and
characteristics of the defendant, the need for adequate deterrence and protection of
the public, the pertinent Sentencing Commission policy statements, and the need to
avoid unwarranted sentencing disparities. 18 U.S.C. § 3553(a)(1)-(7). However,
the district court is not required to mention each of the § 3553(a) factors, and it is
sufficient if the record reflects that the court considered the factors. United States
v. Johnson, 451 F.3d 1239, 1244 (11th Cir. 2006).
Here, Johnson faced a ten-year mandatory minimum sentence under
§ 924(c), but the court sentenced him to twenty years imprisonment. In reaching
the sentence, the court considered the history and characteristics of the defendant,
as well as Johnson’s statements to the court. The court also specifically stated that
it had considered the § 3553(a) factors. Given the conspiracy involved, Johnson’s
criminal history, and his apparent willingness to use the firearm, the sentence
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imposed was reasonable.
Third, Johnson argues that the court violated both § 3553(a) and due process
by failing to both address the statutory factors and by failing to find that the
sentence imposed was “not greater than necessary.” Here the district court stated
that it had “considered all the factors in Title 18 United States Code 3553(a)” and
that the sentence is “sufficient and certainly no greater sentence is necessary.” As
Johnson concedes, however, this court has previously rejected this argument.
IV.
Accordingly, we AFFIRM Johnson’s convictions and sentences.
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