United States v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
June 15, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff-Appellee, No. 05-5147
v. (N .D. of Okla.)
G REG O RY LA M O N T JO H N SON, (D.C. No. CR-04-40-CV E)

Defendant-Appellant.

OR D ER AND JUDGM ENT *

Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges. **

Defendant-Appellant Gregory Lamont Johnson pleaded guilty to unlawful

distribution of cocaine base and unlaw ful possession with intent to distribute, in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). On August 17, 2005, Johnson

received a sentence within the applicable advisory United States Sentencing

*
This order is not binding precedent, except under the doctrines of law of
the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders; nevertheless, an order may be cited under the terms and
conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
Guidelines (U SSG) range, which he now appeals. Taking jurisdiction pursuant to

28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), w e AFFIRM .

I. Background

After Johnson pleaded guilty to the instant offenses, the government issued

a pre-sentence investigation report (PSR ). Applying the Guidelines that

corresponded with each of his prior convictions, the PSR determined his criminal

history points placed him in category VI. Calculating his base offense level at 18,

pursuant to USSG §§ 2D1.1(a)(3) and (c)(11), the PSR then recommended a

three-level reduction for acceptance of responsibility under USSG §§ 3E1.1(a)

and (b), which reduced his total offense level to 15. At sentencing, the presiding

judge reached the same conclusions with regard to Johnson’s criminal history

category and total offense level. The resulting advisory range was 41 to 51

months.

The PSR also included information about Johnson’s alleged gang

membership, stating he was a “certified gang member of the 54th Street Hoover

Crips.” PSR at 2, 11. Johnson objected to this portion of the PSR, and his

concerns were reflected as “Objection No. 1” in the Addendum to the PSR.

Specifically, Johnson argued (1) the government had not provided him

information indicating his status as a gang member, and (2) gang membership was

not relevant to his sentencing. The government responded by contacting the

Tulsa Gang Task Force to confirm Johnson’s gang membership and activity.

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According to the Task Force, Johnson had been an active member since 1993 and

his primary involvement related to drug sales. The government also responded

that Johnson’s tattoos of the word “Hoover” on his back and chest, along with the

numbers “5” and “4” confirmed his gang membership. All of this information

was included in the Addendum.

At sentencing, the court recounted the objections made by Johnson as w ell

as the information provided by the government in response. After defense

counsel confirmed his objections had been properly addressed, the court made its

rulings and denied Objection No. 1. The court agreed with the probation officer

that Johnson’s gang membership was “significant” and appropriate for inclusion

in the PSR because (1) “gang members are more likely to engage in criminal

activity and perhaps related violence than ordinary citizens” and (2) “prison staff

members w ill need to be aware of his gang membership to deal with separate

issues in the prison setting.” Sent. Tr. at 3–4.

The court then discussed the issue with the defendant, counseling him to

dissociate himself from gang membership. Upon receiving his affirmative

response, the court moved on to apply the factors contained in 18 U.S.C.

§ 3553(a) and found no reason to sentence Johnson outside the advisory

Guidelines range. Johnson received 46 months for each count, to run

concurrently. The court also imposed a supervised release period of three years

for each count, to run concurrently. The court specifically emphasized the

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applicability of § 3553(a)(1), the nature of the circumstances of the offense and

history of the defendant, including his prior drug distribution and gang

membership. The court placed equal emphasis on § 3553(a)(2), the need for the

sentence to reflect the seriousness of his offense, to promote respect for the law,

to provide just punishment to afford adequate deterrence and protect the public,

and to provide for the necessary training and treatment programs, including drug

and alcohol counseling. In addition, the court noted the relevance of

§ 3553(a)(6), the need to avoid unwarranted sentence disparities among similarly

situated defendants. W ith regard to the applicable fines, the court imposed a total

fine of $2,000 for both counts, an amount below that recommended in the

Guidelines range, based on Johnson’s ability to pay.

Johnson argues his sentence was improper and appeals it to this court.

II. Discussion

W e review sentences imposed by the district court for reasonableness.

United States v. Booker, 543 U.S. 220, 260–65 (2005). A sentence that falls

within the properly calculated Guidelines range is presumed reasonable; however,

either party may rebut this presumption by demonstrating the sentence is

unreasonable when viewed in light of other factors included in 18 U.S.C.

§ 3553(a). United States v. Kristl, 437 F.3d 1050, 1054 (10th Cir. 2006).

In this case, Johnson does not contest the accuracy of the initial Guidelines

calculation. Nor does he attempt to rebut the presumption of reasonableness of

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his sentence, which fell within the recommended Guidelines range, by pointing to

any factor under § 3553(a) that would change the analysis.

Instead, Johnson challenges the adequacy of the court’s findings w ith

regard to his gang membership. W here a portion of the PSR relevant to

sentencing is disputed, Rule 32(i)(3)(B) of the Federal Rules of Criminal

Procedure (formerly Rule 32(c)(1)) requires the court to make a finding on the

issue. To invoke the court’s fact-finding duty, “Rule 32 requires the defendant to

affirmatively point out any fact in the PSR that he contends is inaccurate.”

United States v. Harris, No. 04-1536, 2006 W L 1314654, at *5 (10th Cir. M ay 15,

2006) (holding Booker has not relieved a defendant of this obligation to raise

factual inaccuracies). Johnson did not specifically contest the fact of his gang

membership. However, assuming arguendo that Johnson sufficiently challenged

that portion of the PSR, the court must specifically address the matter. W e

review compliance with the R ules of Criminal Procedure de novo. United States

v. Kravchuk, 335 F.3d 1147, 1160 (10th Cir. 2003).

Rule 32(i)(3)(B) errors generally arise in two circumstances: (1) where the

court improperly shifts the burden, effectively requiring the defendant to disprove

facts in the PSR relevant to a sentence enhancement, see United States v.

Guzman, 318 F.3d 1191, 1198 (10th Cir. 2003), citing United States v. Kirk, 849

F.3d 1191, 1164 (10th Cir. 2003) (“The government shall bear the burden of proof

for sentence increases and the defendant shall bear the burden of proof for

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sentence decreases.”); or (2) where the sentencing court merely states, without

any additional explanation, that it adopts the findings of the PSR, see, e.g., United

States v. Farnsworth, 92 F.3d 1001, 1011 (10th Cir. 1996).

Neither of these situations occurred here. First, it is evident that Johnson’s

gang membership did not implicate a sentencing enhancement contained in the

Guidelines. Indeed, it was irrelevant to the calculation of the recommended

range, which was undisputed by Johnson. To the extent this factor affected the

court’s subsequent analysis under § 3553(a), we cannot say the court improperly

shifted the burden of proof to Johnson. To the contrary, in response to Johnson’s

objection, the government came forward with evidence from the Tulsa Gang Task

Force of Johnson’s membership and involvement in the 54th Street Hoover Crips.

Johnson did not challenge this evidence, so the court ruled in favor of the

government.

Second, as we have previously noted, the district court is not required to

make elaborate rulings on disputed portions of the PSR but need only be “definite

and clear” in its ruling. U nited States v. Williams, 374 F.3d 941, 947 & n.9 (10th

Cir. 2004). Here, the court (1) considered the defendant’s objection and the

government’s response, (2) allowed the defendant time to respond, (3) made a

specific ruling on the issue, and (4) explained the reasons for that ruling. These

steps are sufficient for compliance with Rule 32. Compare United States v.

Begay, 117 F.App’x 682, *1–2 (10th Cir. 2004).

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 III. Conclusion

For the foregoing reasons, we AFFIRM the sentence below.

Entered for the Court

Timothy M . Tymkovich
Circuit Judge

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