United States v. Eugene Johnson , 11 F. App'x 636 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3222
___________
United States of America, *
*
Appellee, * Appeal from the United States
* District Court for the Western
v. * District of Missouri.
*
Eugene Johnson, * [UNPUBLISHED]
*
Appellant. *
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Submitted: March 28, 2001
Filed: April 3, 2001
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Before RICHARD S. ARNOLD, FAGG, and BOWMAN, Circuit Judges.
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PER CURIAM.
Eugene Johnson pleaded guilty to money laundering and conspiracy to distribute
cocaine and cocaine base. At sentencing in 1998, Johnson faced a statutory maximum
of 120 months on the money laundering charge and a sentencing range of 168-210
months on the drug charges. Because the Government filed a substantial assistance
motion, the district court sentenced Johnson to three years probation. Two years later,
Johnson's probation officer sought to revoke Johnson's probation. At the revocation
hearing, Johnson admitted he violated several of his probation conditions. The district
court revoked Johnson's probation. Rather than exercising its discretion to begin the
sentencing process anew, the district court sentenced Johnson within the 1998
sentencing range to concurrent sentences of 120 months for money laundering and 168
months on the drug charges. See 18 U.S.C.A. § 3565(a)(2) (West Supp. 2000); United
States v. Iverson, 90 F.3d 1340, 1345 (8th Cir. 1996). Johnson appeals arguing the
district court committed error in denying him an acceptance of responsibility reduction
on the 168-month drug sentence. The Government contends Johnson waived this issue
by failing to appeal his 1998 sentence. An appeal from a probation revocation "is not
the proper avenue through which to attack the validity of the original sentence." United
States v. Gerace, 997 F.2d 1293, 1295 (9th Cir. 1993). Thus, we do not reach the
merits of the acceptance of responsibility issue. Indeed, we cannot do so because the
original sentencing transcript is not part of the record in this proceeding. We affirm
Johnson's sentence.*
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
*
The Honorable Dean Whipple, Chief Judge, United States District Court for the
Western District of Missouri.
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