United States v. Johnson , 68 F. App'x 402 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.
 No. 02-4885
BARRY ALAN JOHNSON, a/k/a David
Jackson,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Raymond A. Jackson, District Judge.
(CR-02-4)
Submitted: May 30, 2003
Decided: June 13, 2003
Before WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Frank W. Dunham, Jr., Federal Public Defender, Walter B. Dalton,
Assistant Federal Public Defender, Frances H. Pratt, Research and
Writing Attorney, Norfolk, Virginia, for Appellant. Paul J. McNulty,
United States Attorney, Robert J. Krask, Assistant United States
Attorney, Norfolk, Virginia, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Barry Alan Johnson pled guilty to bank extortion, 18 U.S.C.
§§ 2113(a), 2 (2000), and making a bomb threat, 18 U.S.C. §§ 844(e),
2 (2000), and was sentenced to a term of 108 months imprisonment.
He appeals his sentence, arguing that the district court erred in apply-
ing U.S. Sentencing Guidelines Manual § 2B3.1 (2001), instead of
§ 2B3.2, to the bank extortion offense, and erred when it decided that
his two prior federal offenses were not related cases as defined in
Application Note 3 to USSG § 4A1.2. We affirm.
On June 16, 2001, Johnson attempted to extort money from the
SunTrust Bank in Virginia Beach, Virginia, by calling the bank man-
ager, telling her that there was a bomb on the roof of the building,
giving her eight minutes to comply with his demands, and threatening
to "have her mother" if she failed to follow his directions. While the
manager and other employees tried to comply with Johnson’s direc-
tions, the police arrived and Johnson hung up. Johnson was arrested
and charged with the instant offenses about six months later. In the
interim, he pled guilty to conspiracy to commit mail and wire fraud
arising from an internet auction fraud scheme in Virginia and also
pled guilty to making false claims arising from a tax fraud scheme in
Pennsylvania. The latter offense was transferred to the Eastern Dis-
trict of Virginia pursuant to Fed. R. Crim. P. 20. Johnson was sen-
tenced for both the internet fraud offense and the tax fraud offense on
February 19, 2002. These two federal cases were not formally consol-
idated.
Johnson subsequently pled guilty to attempted extortion of the Sun-
Trust Bank and making a bomb threat. The probation officer recom-
mended that Johnson’s offense level for the bank extortion count be
calculated under USSG § 2B3.1 (Robbery, Extortion, and Blackmail).1
1
The Statutory Index in Appendix A lists both § 2B3.1 and § 2B3.2 as
potentially applicable to a violation of § 2113(a).
UNITED STATES v. JOHNSON 3
Johnson objected that the applicable guideline for determining his
offense level instead should be USSG § 2B3.2 (Extortion by Force or
Threat of Injury or Serious Damage). The probation officer treated
Johnson’s two prior federal sentences as related cases, giving him
only three criminal history points for both of them. The government
objected that Johnson’s prior federal sentences should be treated as
unrelated cases.
At the sentencing hearing, the district court agreed with the govern-
ment’s objection and determined that the two federal offenses for
which Johnson was sentenced in February 2002 were unrelated cases
because they were not part of a common scheme and because there
was no formal order of consolidation. The court overruled Johnson’s
objection and determined that § 2B3.1 was the appropriate guideline
for the offense because it included an enhancement for an attempt to
take the property of a financial institution, while § 2B3.2 does not.
The effect of the court’s rulings was to raise Johnson’s criminal his-
tory score to from eight to eleven and move him from category IV to
category V. His guideline range was 100-125 months. The court
imposed a sentence of 108 months, and stated that it would have
imposed the same sentence even if § 2B3.2 had been applied.
On appeal, Johnson first challenges the district court’s decision to
apply § 2B3.1. The sentencing court’s selection of the appropriate
guideline is reviewed de novo. United States v. Davis, 202 F.3d 212,
218 (4th Cir. 2000). When the statute under which the defendant was
convicted proscribes a variety of conduct that may fall under several
guidelines, the court must "determine which of the referenced guide-
line sections is most appropriate" for the offense of conviction. USSG
§ 1B1.2, comment. (n.1). To accomplish this, the court "should com-
pare the guideline texts with the charged misconduct, rather than the
statute (which may outlaw a variety of conduct implicating several
guidelines) or the actual conduct (which may include factors not ele-
ments of the indicted offense"). United States v. Lambert, 994 F.2d
1088, 1092 (4th Cir. 1993).
Here, Count One of the indictment charged that Johnson "did
knowingly attempt to obtain by extortion, money, property, and any
other thing of value belonging to and in the care, custody, control,
management, and possession of SunTrust Bank, the deposits of which
4 UNITED STATES v. JOHNSON
were then insured by the Federal Deposit Insurance Corporation," in
violation of § 2113(a). Johnson argues that the district court "was
required to look only at the conduct charged in the indictment . . . and
was not permitted to consider the identity of the victim." He argues
that the fact that the victim was a bank is "a circumstance of the
offense" to be considered only in setting the offense level once the
guideline has been selected. In his reply brief, he concedes that the
fact that the victim is a bank is an element of the offense, but argues
that it is merely a jurisdictional element, not a "conduct element," and
thus not significant to the determination of the appropriate guideline.
Johnson’s reasoning is unconvincing because the guideline which
permits an enhancement for attempting to obtain money from a bank,
as opposed to a business or individual, is clearly the guideline that
more closely fits the offense Johnson committed. See United States
v. Smith, 320 F.3d 647, 656-57 (6th Cir.), cert. denied, 123 S. Ct.
1954 (2003) (holding that § 2B3.1 was more appropriate than § 2B3.2
where object of extortion was bank robbery). Therefore, we conclude
that the district court did not err in applying § 2B3.1.2
Johnson next claims that his prior federal convictions were related
cases because they were consolidated for sentencing. Although John-
son did not make this specific argument in the district court, the court
resolved the government’s objection to the probation officer’s calcu-
lation of Johnson’s criminal history by finding that Johnson’s prior
federal convictions were not consolidated for sentencing. Therefore,
2
The government alternatively argues that, even if the court erred in
applying § 2B3.1, resentencing is not necessary because the district court
stated that it would impose the same sentence using § 2B3.2. See United
States v. Strandquist, 993 F.2d 395, 401 (4th Cir. 1993) ("‘[O]verlapping
ranges doctrine obviates the necessity of selecting the appropriate range
only when the district court expressly makes an independent determina-
tion that the sentence would be the same under either of the ranges in the
absence of any dispute.’") (quoting United States v. Willard, 909 F.2d
780, 783 (4th Cir. 1990)); United States v. Smith, 914 F.2d 565, 569 n.3
(4th Cir. 1990). However, we have reviewed the issue on the merits
because the parties did not address the correctness of the alternative
guideline calculation at sentencing, and Johnson now disputes the proba-
tion officer’s computation of the guideline range that would apply under
§ 2B3.2.
UNITED STATES v. JOHNSON 5
the issue may be reviewed de novo, not for plain error as the govern-
ment asserts. See United States v. Allen, 50 F.3d 294, 296 (4th Cir.
1995) (when facts are undisputed, district court’s legal conclusion that
prior cases are unrelated is reviewed de novo).
It is undisputed that Johnson’s prior federal cases were not consoli-
dated by any formal order of consolidation. This fact is dispositive
because Allen holds that, in the absence of a factual relationship
between the prior offenses, a formal consolidation of the cases is
required to classify them as related within the meaning of Application
Note 3 to § 4A1.2. Allen, 50 F.3d at 297-98.
Johnson argues that the prior convictions should nonetheless be
treated as consolidated for several reasons. First, his plea agreement
with respect to the false claims offense stated that the parties would
seek to have the matter transferred to the Eastern District of Virginia
and would also seek to have it consolidated for sentencing with the
internet fraud offense pending against him in Virginia. This claim is
unpersuasive because, although the offenses were sentenced together,
they were never formally consolidated.
Second, he argues that the sentencing guidelines operated to for-
mally consolidate his cases for sentencing because USSG § 5G1.2
(Sentencing on Multiple Counts of Conviction) requires that cases
that are sentenced together be treated as one, whether formally con-
solidated or not. This argument is without merit; section 5G1.2 does
not address consolidation of cases nor does it operate to consolidate
cases automatically. We note that the presentence report for these
cases combined the two offenses and determined one offense level for
them both without using the multiple count rules and worksheets.
This apparent error does not amount to formal consolidation of the
cases.
Finally, Johnson argues that equity requires that his prior convic-
tions be treated as related cases because (1) the same government
attorney has represented the government in all three cases and thus
agreed to seek consolidation of the prior cases for sentencing, and (2)
the same district court judge accepted his plea agreement containing
the agreement to seek consolidation and later held that the cases had
not been consolidated.
6 UNITED STATES v. JOHNSON
None of Johnson’s arguments is sufficient to overcome Allen’s
requirement of a formal order of consolidation. Despite the language
in his prior plea agreement, Johnson did not obtain a formal consoli-
dation order. Therefore, the district court did not err in awarding three
criminal history points for the sentence imposed in each prior case.
We therefore affirm the sentence. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED