335 F3d 589 United States v. E Johnson

335 F.3d 589

UNITED STATES of America, Plaintiff-Appellee,
James E. JOHNSON, Defendant-Appellant.

No. 02-3971.

United States Court of Appeals, Seventh Circuit.

Argued June 11, 2003.

Decided July 9, 2003.

Brian E. Pawlak (argued), Jason Torchinsky, Office of the U.S. Attorney, Milwaukee, WI, for plaintiff-appellee.

Robert R. Henak (argued), Milwaukee, WI, for defendant-appellant.

Before POSNER, COFFEY and RIPPLE, Circuit Judges.


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A jury found James Johnson guilty of conspiracy to distribute more than five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His first sentence was vacated and, at resentencing, the district court imposed a term of 210 months' imprisonment and five years' supervised release. Mr. Johnson now appeals this sentence. He argues that the district court enhanced the sentence in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it calculated the drug quantity involved in the offense without submitting that issue to a jury. Mr. Johnson acknowledges our precedent holding that Apprendi does not affect the application of the Sentencing Guidelines as long as the sentence is within the statutory maximum. Nevertheless, he requests that we reconsider this issue in light of the Supreme Court's decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). For the reasons set forth in the following opinion, we affirm the judgment of the district court.




The facts in this case are not at issue; we set forth a plenary rendition in our earlier decision in United States v. Johnson, 200 F.3d 529, 531-32 (7th Cir.2000). We shall summarize here.


Mr. Johnson distributed cocaine for many years, beginning around 1979. From 1995 until his arrest in November 1997, he obtained cocaine from Michael Blake and Gordon Hagenkord, both of whom had received the cocaine from Candelario Nevarez-Diaz. When cocaine was available, Blake and Hagenkord delivered it to Mr. Johnson; on those occasions (every few weeks), Mr. Johnson paid them for previous deliveries. Most deliveries involved between one and four kilograms of cocaine. Although Blake was arrested in July 1997, Mr. Johnson continued thereafter to obtain cocaine from Hagenkord and another associate.


After his arrest, Blake agreed to cooperate with the government and record several conversations with Mr. Johnson about buying cocaine. At one meeting, Mr. Johnson provided Blake $5,000 toward the purchase of a kilogram or more of cocaine. Through Blake's cooperation, Mr. Johnson was arrested in November 1997 in connection with the drug conspiracy.


At his trial in October 1998, Mr. Johnson testified that he was not involved in the conspiracy. Blake, however, testified as the government's primary witness, and audio tapes of his conversations with Mr. Johnson were admitted into evidence. Id. These conversations corroborated Blake's testimony that he fronted cocaine to Mr. Johnson and that Mr. Johnson willingly participated in the conspiracy. Blake specifically testified that he supplied Mr. Johnson with between three and four kilograms of cocaine every ten to twelve days from 1995 until his arrest and that Mr. Johnson sold the cocaine on credit for approximately $27,000 per kilogram. Blake estimated that between January 1, 1996 and July 24, 1997, he supplied Mr. Johnson with between thirty-five and forty-five kilograms of cocaine. Id. Similarly, the government estimated, based on the recollection of witnesses at trial, that Mr. Johnson distributed approximately two kilograms of cocaine a month for twenty-one months, a total of forty-two kilograms. At the conclusion of the trial, the jury returned a verdict of guilty on one count of conspiracy to distribute and possession with intent to distribute cocaine.


Mr. Johnson was sentenced originally in 1999. The district court determined that he was responsible for 42 kilograms of cocaine. After finding that Mr. Johnson had been convicted of at least three controlled substance offenses in the past, the court applied the Armed Career Criminal Act. The court sentenced him to 360 months' imprisonment. We affirmed that judgment. See Johnson, 200 F.3d at 531. One of Mr. Johnson's prior convictions was later vacated, however, and Mr. Johnson filed a motion under 28 U.S.C. § 2255 seeking resentencing because the Armed Career Criminal Act no longer applied. At resentencing in October 2002, the district court calculated an offense level of 34, a criminal history category of IV, and a guideline imprisonment range of 210 to 262 months. The court then sentenced him to 210 months' imprisonment and five years' supervised release.



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The Supreme Court's decision in Apprendi establishes the general rule that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490, 120 S.Ct. 2348. However, a particular sentence does not implicate Apprendi "unless it exceeds a default statutory maximum." United States v. Knox, 301 F.3d 616, 620 (7th Cir.2002). The maximum sentence permitted for distributing more than five grams of cocaine is life in prison. 21 U.S.C. § 841(b)(1)(A). Because Mr. Johnson's sentence—210 months' imprisonment and five years' supervised release—is less than the statutory maximum prescribed by the statute of conviction, Apprendi does not apply. United States v. De la Torre, 327 F.3d 605, 611 (7th Cir.2003); United States v. Holman, 314 F.3d 837, 846 (7th Cir.2002), cert. denied, ___ U.S. ___, 123 S.Ct. 2238, 155 L.Ed.2d 1108 (2003); United States v. Brumfield, 301 F.3d 724, 734-35 (7th Cir.), cert. denied, 537 U.S. 1079, 123 S.Ct. 681, 154 L.Ed.2d 579 (2002).


Mr. Johnson nevertheless argues that his sentence violates Apprendi because the district court rather than a jury determined the quantity of cocaine and that determination increased his recommended sentence under the Sentencing Guidelines. Mr. Johnson concedes that we have rejected this argument before but submits that the Supreme Court's recent decision in Ring requires us to reconsider that position. In Ring, the Court held that, under Apprendi, additional facts increasing a statutory maximum punishment from life imprisonment to death must be submitted to the jury and proven beyond a reasonable doubt. 536 U.S. at 609, 122 S.Ct. 2428. Mr. Johnson does not argue that Ring's precise holding requires us to reconsider our application of Apprendi; rather, he contends that the Court's discussion of the Sentencing Guidelines took a "functional approach" and analyzed the guidelines as "`laws' that prescribe the maximum authorized sentence within the meaning of Apprendi, even though those adjustments are not expressed as elements of the criminal offense." Appellant's Br. at 11. He thus contends that the guidelines are sentencing laws that "must be viewed as setting the maximum prescribed sentence for purposes of the constitutional principle in Apprendi." Id. at 14. Accordingly, Mr. Johnson concludes, we should reconsider our application of Apprendi and determine that "the principle Apprendi established should apply to the Guidelines." Id. at 15.


But as the government notes, both the Supreme Court and our sister circuits have repeatedly affirmed that the Guidelines should be treated as rules rather than as statutes. Consequently, facts affecting sentencing determinations need not be determined by a jury as long as the sentence imposed does not exceed the maximum penalty set forth in the statute.1 Ring does not suggest a contrary conclusion. Indeed, since the Supreme Court's decision in Ring, we have rejected arguments that facts raising the guidelines maximum should be subject to Apprendi. See, e.g., De la Torre, 327 F.3d at 611 ("Apprendi... does not affect the Guideline calculations that determine the ... total sentence of imprisonment."); Knox, 301 F.3d at 620 (changing the offense level does not impact the statutory penalty and so does not implicate Apprendi); Brumfield, 301 F.3d at 734-35 ("`Apprendi does not create [for the defendant] a right to jury determination of the drug quantity.'") (quoting United States v. Parker, 245 F.3d 974, 977 (7th Cir.2001)).


Because Mr. Johnson's sentence did not exceed the statutory maximum penalty for his crime, Apprendi does not apply to the district court's determination of the amount of cocaine he distributed. Accordingly, the district court appropriately determined drug quantity based on a preponderance of the evidence. United States v. Martinez, 301 F.3d 860, 865 (7th Cir.2002), cert. denied, 537 U.S. 1136, 123 S.Ct. 923, 154 L.Ed.2d 828 (2003). Mr. Johnson does not argue that the evidence was insufficient under that standard. See Holman v. Indiana, 211 F.3d 399, 406 (7th Cir.2000) (arguments not raised on appeal are waived). Indeed, the record supports the district court's findings. See United States v. Anderson, 259 F.3d 853, 858 (7th Cir.2001) (district court's sentencing determinations given great deference).



Mr. Johnson's sentence did not exceed the statutory maximum for his crime, and thus Apprendi does not apply. Mr. Johnson argues to the contrary, but established precedent in this circuit requires affirmance, and Ring does not compel a different result. For the foregoing reasons, we affirm the judgment of the district court.




See, e.g., Talbott v. State of Indiana, 226 F.3d 866, 869 (7th Cir.2000); United States v. Davis, 329 F.3d 1250, 1254-55 (11th Cir. 2003); United States v. Goodine, 326 F.3d 26, 32-34 (1st Cir.2003); United States v. Fields, 325 F.3d 286, 288-89 (D.C.Cir.2003); United States v. Chorin, 322 F.3d 274, 278-79 (3d Cir.2003); United States v. Murillo-Iniguez, 318 F.3d 709, 713-14 (6th Cir.2003); United States v. Piggie, 316 F.3d 789, 791-92 (8th Cir.2003); United States v. Shwayder, 312 F.3d 1109, 1122 (9th Cir.2002); United States v. Luciano, 311 F.3d 146, 149-53 (2d Cir. 2002); United States v. Cannady, 283 F.3d 641, 649 (4th Cir.), cert. denied, 537 U.S. 936, 123 S.Ct. 38, 154 L.Ed.2d 238 (2002); United States v. Randle, 304 F.3d 373, 378 (5th Cir. 2002), cert. denied, ___ U.S. ___, 123 S.Ct. 1748, 155 L.Ed.2d 514 (2003); United States v. Jackson, 240 F.3d 1245, 1249 (10th Cir.), cert. denied, 534 U.S. 847, 122 S.Ct. 112, 151 L.Ed.2d 69 (2001).