United States v. Calvin Lee Johnson , 242 F. App'x 691 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 3, 2007
No. 06-16487 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00042-CR-5-RS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CALVIN LEE JOHNSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 3, 2007)
Before TJOFLAT, BLACK and HULL, Circuit Judges.
PER CURIAM:
Calvin Lee Johnson appeals his sentence for distribution of more than 50
grams of cocaine base, 21 U.S.C. § 841(b)(1)(A)(iii). Johnson generally contends
the district court erred by adding two points to his criminal history score, pursuant
to U.S.S.G. § 4A1.1(d), rendering him ineligible for safety-valve relief. We
address his specific arguments in turn, and affirm his sentence.
When calculating the defendant’s criminal history score, the sentencing
court must add two criminal history points “if the defendant committed the instant
offense while under any criminal justice sentence, including probation, parole,
supervised release, imprisonment, work release, or escape status.” U.S.S.G.
§ 4A1.1(d). The commentary to this guideline further explains that
[a] defendant who commits the instant offense while a
violation warrant from a prior sentence is outstanding
(e.g., a probation, parole, or supervised release violation
warrant) shall be deemed to be under a criminal justice
sentence for the purposes of this provision if that
sentence is otherwise countable, even if that sentence
would have expired absent such warrant.
U.S.S.G. § 4A1.1, comment. (n.4). A defendant who commits the instant offense
while a probation-violation warrant from a prior sentence is outstanding shall be
deemed to be under a criminal justice sentence for purposes of § 4A1.1(d) if that
sentence is otherwise countable, even if that sentence would have expired absent
such warrant. U.S.S.G. § 4A1.2(m).
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Johnson first contends, without legal support, that his 1998 probation-
violation warrant was too remote in time to be considered active. “‘The plain
language of the Guidelines indicates that two points are to be added whenever an
outstanding warrant is in existence, regardless of whether the warrant is stale
pursuant to state law at the time of sentencing, and irrespective of whether state
authorities may have been lax in attempting to execute the warrant.’” Davis, 313
F.3d 1300, 1305 (11th Cir. 2002) (quoting United States v. Elmore, 108 F.3d 23,
27 (3d Cir. 1997)). “[R]egardless of how long a warrant has been outstanding, as
long as a violation warrant exists, it is a criminal justice sentence for purposes of
the criminal history calculation.” Id. at 1306.
Johnson conceded there was an outstanding warrant against him at the time
he committed the instant offenses. Further, Johnson did not dispute that the
sentence for which the probation-violation warrant was issued, namely, his first-
degree forgery conviction, was otherwise countable. See U.S.S.G. § 4A1.2(m). It
was irrelevant whether the warrant became invalid due to the lack of diligence by
state authorities in failing to execute it, or that it was too remote in time to be
considered. See Davis, 313 F.3d at 1305-06. Moreover, the Government was not
required to prove that the warrant was not stale. See id. Thus, the argument the
warrant was too remote is without merit.
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Johnson also maintains, again without legal support, that the assessment of
two additional criminal history points was improper because no evidence showed
that Johnson had notice that a violation of probation warrant was pending. A
defendant is not required to know that a probation-violation warrant is outstanding.
See U.S.S.G. § 4A1.1(d). Further, Johnson admitted that he violated the terms of
his probation by failing to report to probation authorities in Florida. Moreover, our
decision in United States v. Phillips, 413 F.3d 1288 (11th Cir. 2005), cert. denied,
126 S. Ct. 1594 (2006), is instructive with respect to this argument. In Phillips, we
held a defendant’s subjective belief regarding whether or not his parole term had
expired was irrelevant. Id. at 1292. Similarly, in the instant case, Johnson’s
subjective belief regarding whether or not a probation-violation warrant had been
issued against him was irrelevant.
Finally, Johnson argues, citing a case from another circuit, that it would be
unfair to assess criminal history points if his inability to pay restitution was the
basis for the probation-violation warrant. This argument is without merit because
we have held the district need not inquire into the warrant’s validity or the reason
the warrant was issued before applying the two-point enhancement under
§ 4A1.l(d). See Davis, 313 F.3d at 1305.
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Accordingly, we conclude that the district court did not err in adding two
points to Johnson’s criminal history score, pursuant to U.S.S.G. § 4A1.1(d). See
id., 313 F.3d at 1305 (reviewing “a district court’s factual findings for clear error
and its application of the Sentencing Guidelines to those facts de novo”).
AFFIRMED.
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