United States v. Johnson , 186 F. App'x 560 ( 2006 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0391n.06
Filed: June 5, 2006
No. 05-5327
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE MIDDLE
v. ) DISTRICT OF TENNESSEE
)
ANTONIO MONTREZE JOHNSON, ) OPINION
)
Defendant-Appellant. )
BEFORE: NORRIS, SUHRHEINRICH, and ROGERS, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Defendant Antonio Johnson appeals from the sentence
imposed after he pleaded guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g).
Defendant was sentenced on February 3, 2005 – just three weeks after the Supreme Court’s decision
in United States v. Booker, 543 U.S. 220 (2005). On appeal, he contends that the district court
violated the Sixth Amendment by sentencing him based upon factual findings related to his past
convictions. He also advances the argument that Justice Breyer’s remedial opinion in Booker, which
held that the federal sentencing guidelines are advisory, should not apply retroactively because its
logic exposes him to a greater maximum sentence than he would have faced under a mandatory
guidelines regime.
I.
No. 05-5327
United States v. Johnson
Plaintiff is a young man from Nashville with a troubled history dating back to a juvenile
adjudication for arson at the age of ten. By the time he committed the offense of conviction, he had
already amassed a record of felony convictions that included reckless aggravated assault, cocaine
possession, and assault involving bodily injury to the mother of his child. In preparing the pre-
sentence report, the probation officer listed these offenses as the predicates supporting his 18 U.S.C.
§ 922(g) conviction.
Defendant elected to enter a guilty plea. At the time of the change of plea hearing, Blakely
v. Washington, 542 U.S. 296 (2004), was barely two months old. Although Blakely did not involve
a challenge to the federal sentencing guidelines, it generated considerable speculation about whether
the Supreme Court would extend its logic to them in a subsequent case, which it ultimately did in
Booker. Given the unsettled state of the law, the district court advised defendant that, although he
had been told that his sentencing range was between 10 and 87 months of imprisonment, “[i]t’s
unclear whether the guidelines range will be binding on the court or whether it will simply be
something the court needs to seriously consider.” After defendant acknowledged the facts as
presented by the government in support of the felon in possession charge, the district court accepted
the plea and scheduled a sentencing hearing.
The docket reflects that the district court granted several motions to continue the sentencing
hearing, which had been scheduled for October 25, 2004, but was finally scheduled for February 3,
2005. When the Booker decision issued on January 12, 2005, the court ordered counsel to file
supplemental briefs discussing its impact.
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No. 05-5327
United States v. Johnson
The pre-sentence report calculated defendant’s base offense level to be 24 pursuant to
U.S.S.G. § 2K2.1(a)(2), which prescribes that level “if the defendant committed any part of the
instant offense subsequent to sustaining at least two felony convictions of either a crime of violence
or a controlled substance offense.” In this case, the pre-sentence report cited the three convictions
mentioned earlier – reckless aggravated assault, cocaine trafficking, and domestic assault – in
support of its conclusion. It then recommended a three-level downward adjustment based upon
acceptance of responsibility, U.S.S.G. § 3E1.l, for a total offense level of 21. The district court
adopted these recommendations.
With respect to criminal history, the court assessed six points based upon prior convictions.
It then added three points because the defendant committed the instant offense while on probation
from another criminal justice sentence, U.S.S.G. § 4A1.1(d) (two points), and within two years of
release from imprisonment, U.S.S.G. § 4A1.1(e) (one point). The nine-point total resulted in a
criminal history category of IV. When coupled with the adjusted offense level of 21, a guidelines
range of between 57 and 71 months of imprisonment resulted.
The district court imposed a sentence at the bottom of the guidelines range.
II.
A. Contested Findings Related to Sentencing
We turn first to defendant’s contention that the district court exceeded its authority by relying
upon various aspects of his criminal history to enhance his sentence. When a defendant preserves
a constitutional challenge to his sentence by raising it in the district court, we review the issue de
novo on appeal. United States v. Copeland, 321 F.3d 582, 601 (6th Cir. 2003).
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No. 05-5327
United States v. Johnson
In Booker, the Court reaffirmed the “prior conviction” exception that it first enunciated in
Almendarez-Torres v. United States, 523 U.S. 224 (1998), and retained in Apprendi v. New Jersey,
530 U.S. 466 (2000): “Any fact (other than a prior conviction) which is necessary to support a
sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury
verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker,
543 U.S. at 244.
At the sentencing hearing, the district court asked defense counsel why the prior conviction
exception should not apply. After conceding that she could not cite any cases in support of a
contrary view, counsel stated, “[M]y primary position is that the prior conviction exception needs
to be revisited.” Although Justice Thomas has given some indication that “a majority of the Court
now recognizes that Almendarez-Torres was wrongly decided,” see Shepard v. United States, 544
U.S. 13, 125 S. Ct. 1254, 1264, 161 L. Ed. 2d 205, 219 (2005) (Thomas, J., concurring in part), the
Court has not yet done so and, unless and until it does, the prior conviction exception retains its
validity. Consequently, the district court did not err when it took note of defendant’s three prior
felony convictions, which increased defendant’s base offense level from 12 to 24. Compare
U.S.S.G. § 2K2.1(a)(2) with U.S.S.G. § 2K2.1(a)(6).
Whether the factors relied upon by the district court when calculating defendant’s criminal
history category – that he was on probation at the time of the offense and had been released from
imprisonment within the past two years – fall within the prior conviction exception presents a closer
question. We do not write on a clean slate, however. This court has recently taken the following
approach when faced with sentencing considerations similar to those present in the instant case:
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No. 05-5327
United States v. Johnson
“[T]his circuit has repeatedly held . . . [that] certain aspects of the character
of prior convictions are so basic as to be implicit in the fact of a prior conviction.”
United States v. Hollingsworth, 414 F.3d 621, 623 (6th Cir. 2005); see also United
States v. Barnett, 398 F.3d 516, 524 (6th Cir. 2005) (“This Court, among others, has
rejected the argument that Apprendi requires the nature of prior convictions to be
determined by a jury, holding instead that the district court’s authority to determine
the existence of prior convictions was broad enough to include determinations
regarding the nature of those prior convictions.”); United States v. Burgin, 388 F.3d
177, 186 (6th Cir. 2004) (“In the usual case, we expect that a district court’s
determination that a defendant has a record of prior convictions will be accompanied
by the judge’s determination of when those convictions were entered.”); United
States v. Santiago, 268 F.3d 151, 156-57 (2d Cir. 2001) (discussing, in a pre- Booker
and pre- Blakely case, the “different occasions” requirement for prior crimes in 18
U.S.C. § 924(e) and stating that “[j]udges frequently must make factual
determinations for sentencing, so it is hardly anomalous to require that they also
determine the ‘who, what, when, and where’ of a prior conviction”).
[Defendant] alleges that the district court made five impermissible factual
determinations regarding his prior convictions: (1) the date of commission, (2) the
date the convictions were entered, (3) his age on the date of commission, (4) the
length of the sentences imposed, and (5) whether [defendant] was still under a
criminal-justice sentence when he committed the . . . offenses at issue. But
[defendant] does not cite any authority holding that the district court is prohibited
from making these findings. Common sense dictates that these facts are “so basic as
to be implicit in the fact of a prior conviction.” See Hollingsworth, 414 F.3d at 623.
The date the offense was committed, the date of entry of the conviction, the duration
of the sentence, and whether the sentence had expired before the offense at issue are
facts basic to the conviction – the “when[s].” See Santiago, 268 F.3d at 156-57.
United States v. Johnson, ___ F.3d ___, 2006 WL 623595 at * 15-16 (6th Cir. Mar. 15, 2006)
(amended opinion). Just as in Johnson, defendant raises arguments that involve the “whens” of his
prior convictions and, consonant with the reasoning of Johnson and Hollingsworth, we hold that
they are sufficiently “implicit in the fact of his prior convictions” to fall within the prior conviction
exception. For that reason, the calculation of defendant’s criminal history did not violate the Sixth
Amendment.
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No. 05-5327
United States v. Johnson
B. Retroactivity of Booker
As she did below, defense counsel contends that Booker should not be applied retroactively
to her client. She failed, however, to make this argument in her opening brief to this court, raising
it for the first time in her reply brief. Because the government had no opportunity to respond to this
argument, we decline to reach it. Aetna Cas. and Sur. Co. v. Leahey Const. Co., 219 F.3d 519, 545
(6th Cir. 2000) (issue raised for the first time in reply brief should not be considered because
appellee had no chance to respond); accord Priddy v. Edelman, 883 F.2d 438, 446 (6th Cir. 1989)
(“We normally decline to consider issues not raised in the appellant’s opening brief.”). As this
case illustrates, unless both parties have an ample opportunity to present arguments, this court may
receive an incomplete picture of the legal landscape. Defense counsel failed to call this court’s
attention to contrary authority from this and other circuits in either her reply brief or in a letter filed
pursuant to Federal Rule of Appellate Procedure 28(j). Had she done so, the list of circuits rejecting
one form or another of her retroactivity argument would have included the following: United States
v. Richardson, 437 F.3d 550, 555 (6th Cir. 2006) (no retroactivity problem because “[c]onclusions
about [defendant’s] prior convictions would be treated the same before or after Booker”); United
States v. Vaughn, 430 F.3d 518, 525 (2d Cir. 2005) (application of Booker to cases on direct review
does not violate the ex post facto principle of the Due Process Clause), petition for cert. filed, (U.S.
Mar. 1, 2006) (No. 05-9499); United States v. Rines, 419 F.3d 1104, 1106 (10th Cir. 2005) (noting
that Booker stated that it applied to all cases on direct review), cert. denied, 126 S. Ct. 1089 (2006);
United States v. Dupas, 419 F.3d 916, 920-21 (9th Cir. 2005) (defendant had fair warning of
sentence, which “is the touchstone of the retroactivity analysis under the Due Process Clause”), cert.
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No. 05-5327
United States v. Johnson
denied, 74 U.S.L.W. 3504 (U.S. Mar. 6, 2006) (No. 05-9082); United States v. Jamison, 416 F.3d
538, 539 (7th Cir. 2005); United States v. Scroggins, 411 F.3d 572, 576 (5th Cir. 2005); United
States v. Duncan, 400 F.3d 1297, 1306-08 (11th Cir. 2005).
As these cases make clear, to prevail on his retroactivity claim, defendant must demonstrate
that he did not receive fair warning of his potential sentence, Dupas, 419 F.3d at 920-21, and that
he was disadvantaged by application of Booker. Richardson, 437 F.3d at 555. With respect to the
former, the district court explicitly told defendant at his plea hearing that the guidelines might well
be advisory by the time of sentencing. With respect to the latter, defendant received a sentence at
the low end of an advisory instead of a mandatory guidelines range and Booker did not adversely
affect his actual, rather than hypothetical, sentence. Thus, even if we were to reach this retroactivity
issue, defendant would not be entitled to re-sentencing.
III.
The judgment of the district court is affirmed.
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