United States v. John C. Johnson, Jr. ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 99-4656
JOHN CLARENCE JOHNSON, JR., a/k/a
JJ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Greenville.
Henry M. Herlong, Jr., District Judge.
(CR-98-922)
Submitted: March 28, 2000
Decided: April 26, 2000
Before WIDENER, MICHAEL, and TRAXLER, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Benjamin T. Stepp, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. Harold Watson Gowdy, III, OFFICE
OF THE UNITED STATES ATTORNEY, Greenville, South Caro-
lina, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John C. Johnson, Jr., appeals his convictions and sentences for con-
spiracy to possess with intent to distribute cocaine and possession
with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)
(1994). For the reasons that follow, we affirm.
A.
Johnson's Anders brief raises four claims.* Johnson first chal-
lenges the admissibility of his statements to Agent Mark Poag of the
Drug Enforcement Agency (DEA).
The admissibility of Johnson's statements turns on whether the
confession is voluntary. See 18 U.S.C. § 3501 (1994); United States
v. Dickerson, 166 F.3d 667, 684 (4th Cir. 1999), cert. granted, 68
U.S.L.W. 3361 (U.S. Dec. 6, 1999) (No. 99-5525); United States v.
Braxton, 112 F.3d 777, 781 (4th Cir. 1997). We review the voluntari-
ness of confessions de novo. See Braxton, 112 F.3d at 781. A state-
ment given freely and voluntarily without any compelling influences
is admissible in evidence. See Miranda v. Arizona, 384 U.S. 436, 478
(1966). The government bears the burden of establishing, by prepon-
_________________________________________________________________
*Johnson's counsel has filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967). Accordingly, the Clerk of this Court notified John-
son of his right to file a pro se supplemental brief. In response to John-
son's motions for extension of time, the court extended the time within
which to file the brief until January 3, 2000. On January 12, 2000, and
again on February 14, 2000, Johnson moved for another extension of
time. Because it is clear from the record that Johnson is entitled to no
relief, and because the court gave Johnson two prior extensions, we deny
his two pending motions for extension of time. We also deny his motions
to receive the complete record, to dismiss counsel, and to appoint new
counsel or proceed pro se.
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derance of the evidence, the voluntariness of a confession. See Lego
v. Twomey, 404 U.S. 477, 489 (1972); Braxton , 112 F.3d at 781.
Shortly after his arrest, Johnson was interviewed by Poag. Poag
advised Johnson of his rights in accordance with Miranda, and John-
son waived his rights and agreed to talk to Poag. Johnson confessed
to Poag that he agreed to provide William Brazel with a half kilogram
of cocaine. Johnson further confessed that after unsuccessful attempts
to obtain the cocaine, he contacted William Wilkins in Florence,
South Carolina. Johnson also admitted that Wilkins and Arthur
Kinder came from Florence the night before the proposed exchange
with Brazel and that they repackaged the cocaine at Johnson's house.
Johnson contended that he made these statements prior to learning his
rights, and Poag testified that the statements were made after Johnson
was given a Miranda warning. The district court chose to credit
Poag's version of events.
A review of the record demonstrates that the district court's deci-
sion to credit Poag's testimony was not clearly erroneous. Therefore,
we deny relief on this claim. See United States v. Gray, 137 F.3d 765,
771-72 (4th Cir. 1998), cert. denied, ___ U.S. ___, 67 U.S.L.W. 3234(U.S. Oct. 5, 1998) (No. 97-9680).
B.
Johnson next claims that the district court erred in denying his
motion for acquittal pursuant to Fed. R. Crim. P. 29.
The standard of review for deciding a Rule 29 motion is "whether
there is substantial evidence (direct or circumstantial) which, taken in
the light most favorable to the prosecution, would warrant a jury find-
ing that the defendant was guilty beyond a reasonable doubt." United
States v. MacCloskey, 682 F.2d 468, 473 (4th Cir. 1982). In determin-
ing the issue of substantial evidence, we neither weigh the evidence
nor consider the credibility of witnesses. See United States v. Arring-
ton, 719 F.2d 701, 704 (4th Cir. 1983).
The government presented substantial evidence sufficient to war-
rant the jury's finding of guilty beyond a reasonable doubt. Johnson
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admitted that he, Kinder, and Wilkins agreed to deliver cocaine to
Brazel, and further admitted that he had previously sold an ounce of
cocaine to Brazel. The only issue in dispute was whether Johnson was
entrapped by Brazel. Brazel testified that Johnson approached him
with an offer to sell drugs. Conversely, Johnson testified that Brazel
repeatedly approached him. The district court allowed the jury to con-
sider entrapment as a defense. In rejecting the entrapment defense, the
jury implicitly credited Brazel's version of events. Because this court
does not review the factual determinations made by a jury, see
Arrington, 719 F.2d at 704, we deny relief on this claim.
C.
Following the jury verdicts, Johnson made several pro se motions
for a new trial based upon juror misconduct. Johnson claimed that
some jurors were sleeping during trial and that he witnessed some of
the jurors improperly discussing the case before it was submitted to
them. This court reviews denials of motions for mistrial based upon
juror misconduct for abuse of discretion. See United States v. Dorsey,
45 F.3d 809, 817 (4th Cir. 1995).
The district court found that, based upon its observations of the
jury throughout the trial, jurors were not sleeping or otherwise not
paying attention. The record is devoid of any evidence that this find-
ing was clearly erroneous. Moreover, because Johnson failed to
promptly bring to the court's attention any sleeping or unattentive
jurors, the district court correctly found that Johnson waived his right
to a new trial based upon juror misconduct. See United States v.
Dean, 667 F.2d 729, 733-34 (8th Cir. 1982). Accordingly, we deny
relief on this claim.
D.
Johnson raised several objections to his sentence. We review fac-
tual determinations made in sentencing proceedings for clear error
and legal conclusions de novo. See United States v. Blake, 81 F.3d
498, 503 (4th Cir. 1996). The district court's factual findings must be
supported by a preponderance of the evidence. See United States v.
Brooks, 957 F.2d 1138, 1148 (4th Cir. 1992).
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Johnson claims that the inclusion of cocaine and crack cocaine
found in Wilkins' truck should not be attributed to him for the pur-
pose of determining his base offense level. Johnson admitted he initi-
ated the acquisition of drugs by Wilkins in Florence, South Carolina.
Johnson also admitted he and Wilkins cut and repackaged the cocaine
later found in Wilkins' truck. The district court, therefore, properly
held Johnson responsible for these drugs. See United States v. Irvin,
2 F.3d 72, 78 (4th Cir. 1993).
Johnson claims that the district court erroneously denied a reduc-
tion in his offense level for acceptance of responsibility pursuant to
USSG § 3E1.1 (1998). Johnson asserted his innocence throughout his
trial and sentencing. He is therefore not entitled to an acceptance of
responsibility adjustment. See USSG § 3E1.1, comment (n. 1(a));
United States v. Dickerson, 114 F.3d 464, 470 (4th Cir. 1997).
Finally, Johnson challenged the drug amount attributable to him as
relevant conduct. Johnson claimed that the drugs involved in a deal
that took place in Florida were not properly attributable to him as rel-
evant conduct for the instant offense; that the information used to set
relevant conduct drug amounts was given to Agent Poag under an
immunity agreement and therefore should not have been used against
him; and that the drug amounts in the pre-sentence report were factu-
ally incorrect.
Johnson's claims are without merit. Johnson admitted that in order
to consummate his first sale of cocaine to Brazel, he obtained one
ounce of cocaine from a source in Florida. This transaction was the
link the district court relied on to connect Johnson with on-going drug
activity in Florida. The district court therefore did not clearly err in
attributing the cocaine transactions between Johnson and his contact
in Florida as relevant conduct.
Johnson's remaining claims of immunity and erroneous drug
amounts boil down to attacks on the credibility of Agent Poag. The
district court decided to credit Poag's testimony, finding that no
immunity agreement existed and that Johnson had, in fact, provided
Poag with the information that formed the basis of the drug amounts
in the pre-sentence report. The district court's findings regarding the
credibility of witnesses are entitled to deference in this court. There-
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fore, Johnson's sentence will not be reversed on this ground. See
United States v. Saunders, 886 F.2d 56, 60 (4th Cir. 1989).
As this is an Anders appeal, we have thoroughly reviewed the
record, including the transcripts and the pre-sentence report, and find
no reversible error. This court requires that counsel inform his client
in writing of his right to petition the Supreme Court of the United
States for further review. If Johnson requests that a petition be filed
but counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from representa-
tion. Counsel's motion must state that a copy thereof was served on
Johnson.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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