United States v. Johnson

United States Court of Appeals
Fifth Circuit
F I L E D
Revised April 7, 2006
April 4, 2006

In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________

m 05-60695
_______________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

GEORGE D. JOHNSON,

Defendant-Appellant.

____________________________________

Appeal from the United States District Court
for the Northern District of Mississippi
_____________________________________

Before SMITH, GARZA, and OWEN, violation of the Fourth Amendment. Addition-
Circuit Judges. ally, Johnson appeals his 120-month sentence
on the basis of United States v. Booker, 543
JERRY E. SMITH, Circuit Judge: U.S. 220 (2005). We affirm.

George Johnson appeals his conviction, un- I.
der 18 U.S.C. § 922(g)(1), of being a felon in While two police officers were in the pro-
possession of a firearm, arguing that the gun cess of arresting an individual responsible for
powder residue test performed on his hands, causing a disturbance at a motel in Clarksdale,
the results of which were admitted at trial, Mississippi, Johnson and other persons ap-
constituted an unlawful search and seizure in proached the officers, shouting threats at them.
After the officers called for back-up, Johnson handgun on the roof. Johnson was then placed
and his cohorts left the scene and walked under arrest and taken to the police station,
down Lincoln Place, the street on which the where a gun powder residue test was per-
motel was located. formed on his hands. The test yielded a pos-
itive result for his right hand; ballistics
Ten additional officers arrived at the motel, matched the shell casings found in front of the
responding to the call for back-up. While the house to the gun found on the roof.
police were discussing the events that had
transpired, gunshots were fired at them from On the basis of these events, and because
the direction in which Johnson and the others he had previously been convicted of a felony
had walked. When the shooting ceased, the punishable by a term of imprisonment exceed-
officers began searching Lincoln Place, trying ing one year, the grand jury indicted Johnson
to locate the gunman. During the search, one for being a felon in possession of a firearm in
officer received an anonymous telephone call violation of § 922(g)(1). Johnson moved to
informing him that Johnson was the shooter suppress the results of the gun powder residue
and that he was hiding at 829 Lincoln Place. test, arguing that he was arrested solely on the
At approximately the same time that the police basis of an anonymous informant’s tip and
received the informant’s call, another officer therefore that the arrest was unlawful because
found five spent .45-caliber shell casings in the it was made without probable cause. He con-
street in front of 829 Lincoln Place. tended that the results of the residue test, as
“fruit of the poisonous tree,” were accordingly
On the basis of the informant’s tip and the inadmissible.
discovered shell casings, the police surrounded
829 Lincoln Place. At least two officers The court denied the motion to suppress.
posted around the house could see Johnson The jury found Johnson guilty as charged, and
pacing in a back bedroom. The police located the court sentenced him to 120 months in pris-
the owner of the house, Arnetta Randolph, on, the maximum allowed by statute for a con-
who was not inside. Randolph’s children, viction under § 922(g)(1).
however, were inside, and she therefore told
the police they could enter. The officers II.
knocked, and when there was no response, On appeal, Johnson renews his Fourth
Randolph gave them permission to break down Amendment objection to the admission of the
her door. results of the gun powder residue test, con-
tending that the court committed reversible
The police removed Randolph’s children error by denying his motion to suppress. “In
and located Johnson, who was lying in a bed, reviewing the denial of a motion to suppress,
fully-clothed and with shoes on, in the same we employ a two-tiered standard, examining
back room where officers had previously wit- the factual findings of the district court for
nessed him pacing. The police accordingly did clear error, and its ultimate conclusion as to
not believe Johnson’s claim that he had been the constitutionality of the law enforcement
asleep. actions de novo.” United States v. Navarro,
169 F.3d 228, 231 (5th Cir. 1999).
They handcuffed Johnson and searched the
premises for a firearm, finding a .45-caliber Incident to a lawful arrest, “it is entirely

2
reasonable for the arresting officer to search complete misunderstanding of the events lead-
for and seize any evidence on the arrestee’s ing up to and surrounding his arrest. Before
person in order to prevent its concealment or entering 829 Lincoln Place, the police had in
destruction.” Chimel v. California, 395 U.S. fact obtained two pieces of evidence that cor-
752, 763 (1969). Because the presence of gun roborated the information given by the anony-
powder on his hands was relevant evidence mous caller regarding the identity and location
that Johnson (or merely time) could have of the shooter: (1) An officer had discovered
eventually removed or destroyed, if his arrest spent shell casings outside of the house in
was valid, the performance of the gun powder which the informant said Johnson was hiding;
residue test was lawful, and the admission of and (2) officers had observed Johnson pacing
the results at trial was proper.1 in a back room of the same house. Further-
more, before the arrest, the police discovered
A warrantless arrest is lawful if “at the mo- a handgun on the roof of the house where they
ment the arrest was made, the officers had had found and detained Johnson.2
probable cause to make itSS[if] at that moment
the facts and circumstances within their knowl-
edge and of which they had reasonably trust- 2
In his brief, Johnson implies, but does not ar-
worthy information were sufficient to warrant gue directly, that he was under arrest as of the
a prudent man in believing that the petitioner moment when the police located and handcuffed
had committed or was committing an offense.” him at 829 Lincoln Place, and he therefore implic-
Beck v. Ohio, 379 U.S. 89, 91 (1964). John- itly contends that the probable cause requirement
son contends that at the time police entered was triggered prior to the discovery of the gun.
829 Lincoln Place and detained him, “no one Even if he were correct on this point, the police had
had seen him commit an unlawful act.” He obtained evidence sufficient to establish probable
argues that when he was handcuffed, the only cause before they handcuffed him and commenced
evidence the police possessed that linked him the search of the premises that led them to the gun
to the shooting was the anonymous infor- (a search that presents no Fourth Amendment
problem because Johnson is neither an owner nor
mant’s tip. He asserts that such a tip, standing
a resident of 829 Lincoln Place).
by itself, is insufficient to establish probable
cause. We disagree, however, with Johnson’s conten-
tion regarding the timing of his arrest. In United
In arguing that the informant’s tip was un- States v. Sanders, 994 F.2d 200, 206-07 (5th Cir.
corroborated and that the tip provided the sole 1993), we held that “handcuffing a suspect . . .
basis for his arrest, Johnson demonstrates a do[es] not automatically convert an investigatory
detention into an arrest requiring probable cause.”
Where “reasonable under the circumstances,” pol-
1
See Cupp v. Murphy, 412 U.S. 291, 296-96 ice “may handcuff a suspect during an investiga-
(1973) (stating that pursuant to Chimel, it is con- tory detention without exceeding the limits of such
stitutionally permissible to take fingernail samples a detention.” Id. at 205, 206.
from an individual under lawful arrest); see also
United States v. Love, 482 F.2d 213, 216 (5th Cir. Given that Johnson had entered, without per-
1973) (explaining that the “fact [that] [a]ppellant mission, a house in which children were present,
was legally under arrest at the time his palmprint and in light of the abusive conduct to which the
exemplar was taken removes the first level of po- police had been subjected that night, it was reason-
tential Fourth Amendment infringement”). (continued...)

3
 Taken together, this evidence was more Section 2A2.1(a) provides a base offense
than sufficient to establish probable cause for level of 28 if the object of the offense
Johnson’s arrest. Accordingly, the arrest, and would have constituted first degree murder.
the gun powder residue test performed inci- The offense conduct section establishes that
dent thereto, were lawful. The district court the object of the offense would have con-
did not err in denying the motion to suppress. stituted first degree murder. Because the
base level of 28 for attempted murder
III. exceeds the offense level calculation under
Section 2K2.1(c)(1)(A) of the United 2K2.1(a) and (b), the guideline calculations
States Sentencing Guidelines provides that derived from 2A2.1 will be utilized.

[i]f the defendant used or possessed any The PSR recommended increasing the base
firearm or ammunition in connection with offense level of 28 by three levels pursuant to
the commission or attempted commission U.S.S.G. § 3.A.1.2(b)(1) because Johnson had
of another offense . . ., apply § 2X1.1 (At- assaulted persons he knew to be law enforce-
tempt, Solicitation, or Conspiracy) in re- ment officers. Using a base offense level of 31
spect to that other offense, if the resulting and a category III criminal history on account
offense level is greater than that determined of Johnson’s prior convictions, the PSR calcu-
[on the basis of § 2K2.1(a) and (b)]. lated a guidelines range of 135-168 months.

Section 2X1.1 states that the base level for an The court took the guidelines range into
attempt is consideration and sentenced Johnson to 120
months in prison, the maximum allowed by
[t]he base offense level from the guideline statute for a conviction under 18 U.S.C.
for the substantive offense, plus any adjust- § 922(g)(1). See 18 U.S.C. § 924(a)(2).
ments from such guideline for any intended Johnson objected and renews on appeal his
offense conduct that can be established contention that the court erred in imposing the
with reasonable certainty. 120-month sentence by relying on the guide-
lines and by taking into account facts not
Because evidence submitted at trial indi- proven to a jury, in violation of Booker.
cated that Johnson used the firearm he was
convicted of possessing in violation of § 922- Johnson appears to be confused about what
(g)(1) to shoot at law enforcement officers, the Booker requires. As we stated in United
presentence report (“PSR”) cross-referenced States v. Mares, 402 F.3d 511, 518 (5th Cir.),
to attempted murder (U.S.S.G. § 2A2.1) and cert. denied, 126 S. Ct. 43 (2005), “[i]t was
concluded as follows: the mandatory aspect of th[e] sentencing re-
gime [under the Guidelines] that the Court
concluded violated the Sixth Amendment’s re-
quirement of a jury trial.” Accordingly, Justice
2
Breyer’s remedial opinion “severed and ex-
(...continued)
cised” the sections of the Sentencing Reform
able for the police to handcuff Johnson while they
Act of 1984 that made the Guidelines man-
continued their investigation. Johnson was arrested
when, after discovering the gun, the police decided
datory and set forth standards of review on
to take him to the station. appeal. Booker, 543 U.S. at 258-60. Post-

4
Booker, we continue to review a district Turning to the more particular question of
court’s interpretation and application of the whether Johnson’s 120-month sentence is rea-
guidelines de novo, see United States v. Vil- sonable, we stated in Mares that
legas, 404 F.3d 355, 359 (5th Cir. 2005), and
ultimatelyreview sentences for “unreasonable- [i]f the sentencing judge exercises her dis-
ness,” Booker, 543 U.S. at 261. cretion to impose a sentence within a prop-
erly calculated Guideline range, in our rea-
Johnson was convicted and sentenced after sonableness review we will infer that the
Booker was decided and therefore was not judge has considered all the factors for a
subjected to a mandatory sentencing regime. fair sentence set forth in the Guidelines.
The court’s use of the guidelines as advisory in Given the deference due the sentencing
sentencing Johnson was entirely appropriate judge’s discretion under the Booker/Fanfan
because, under Booker, to reach a reasonable regime, it will be rare for a reviewing court
sentence “the . . . court remains under a duty to say such a sentence is “unreasonable.”
pursuant to [18 U.S.C.] § 3553(a) to ‘consid-
er’ numerous factors including” the guidelines. Id. Johnson does not contend that the PSR
Mares, 402 F.3d at 519. misapplied the guidelines or miscalculated the
appropriate guidelines range. Therefore, the
This duty to “consider” the Guidelines will recommended 135-168 month guidelines range
ordinarily require the sentencing judge to was properly calculated.
determine the applicable Guidelines range
even though the judge is not required to Because the maximum sentence statutorily
sentence within that range. The Guideline allowed for a conviction under § 922(g)(1) fell
range should be determined in the same below the bottom of the range, the court de-
manner as before Booker/Fanfan. Related- termined that the statutory maximum consti-
ly, Booker contemplates that, with the man- tuted an appropriate sentence. That sentence
datory use of the Guidelines excised, the is reasonable, because where the statutory
Sixth Amendment will not impede a sen- maximum is lower than a properly-calculated
tencing judge from finding all facts relevant guidelines range, a statutory maximum sen-
to sentencing. The sentencing judge is tence is functionally equivalent to a sentence
entitled to find by a preponderance of the within the guidelines. In Mares, we adopted a
evidence all the facts relevant to the deter- presumption of reasonableness for guidelines
mination of a Guideline sentencing range sentences, and we now apply the same pre-
and all facts relevant to the determination sumption to statutory maximum sentences
of a non-Guidelines sentence. where that maximum falls below the appropri-
ate guidelines range.3
Id. (internal citations omitted). The court’s
consideration of the recommended guidelines The judgment of conviction and sentence is
range was not in error, because such consider-
ation is mandated by Booker and Mares, even
where calculation of the appropriate range re- 3
In adopting this presumption, we join the
quires the court to take into account facts not
Eighth Circuit. See United States v. Shafer, 438
proven to a jury. F.3d 1225, ____, 2006 WL 453200, at *1 (8th Cir.
Feb. 27, 2006).

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AFFIRMED.

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