United States v. Rodney R. Johnson ( 1996 )

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No. 95-3787
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Rodney R. Johnson, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: April 9, 1996
Filed: May 21, 1996
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Before MAGILL, Circuit Judge, HENLEY, Senior Circuit Judge, and LOKEN,
Circuit Judge.
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PER CURIAM.
Rodney R. Johnson, a young man with an extensive criminal record, was
arrested at a residence where cocaine, marijuana, drug paraphernalia, and
two firearms were found. Indicted on drug and firearm charges, Johnson
pleaded guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g). He now appeals his sixty month prison sentence. We
affirm.
As part of his plea agreement, Johnson and the government entered
into a Stipulation of Facts Relative to Sentencing. The Stipulation
recited Johnson's relevant prior convictions and stated: "The Government
agrees there is no readily provable relevant conduct under Section 1B1.3
of the Sentencing Guidelines. In return for this consideration, the
defendant Rodney Johnson agrees that his [base] offense level is Level 20
under the
Sentencing Guidelines [and] his Criminal History Category is Category VI."
Based upon this Stipulation, at Johnson's change-of-plea hearing the
district court1 advised:
Now, we have agreed that your base offense level will be
20. It will be reduced to 18, because you are going to get a
two level downward adjustment for acceptance of responsibility.
And your criminal history category is [VI]. So . . . the range
of the punishment with respect to incarceration is 57 months to
71 months. Now, this means I could sentence you to 57 months.
It also means I could sentence you to 71 months. Or I could
sentence you to some point between 57 and 71 months. Do you
understand that that is the range of the punishment in this
case?
THE DEFENDANT: Yes, sir.
The parties in stipulating to Johnson's base offense level concluded
that his prior conviction for burglary of a commercial building was a crime
of violence under U.S.S.G. § 4B1.2(1)(ii), which made him subject to a
career offender enhancement. However, Johnson's presentence investigation
report (PSR) disagreed with that conclusion and therefore recommended a
base offense level of fourteen and a Guidelines sentencing range of 30-37
months in prison. Nevertheless, the district court at sentencing held that
the proper range was 57-71 months because Johnson had agreed to that
sentencing range in his Stipulation and specifically at his plea hearing,
and also because his extensive criminal history at a young age warrants an
upward departure. Therefore, the court sentenced Johnson to sixty months
in prison.
On appeal, Johnson argues (1) that his plea Stipulation did not bind
the sentencing judge and therefore the district court was obliged to
sentence Johnson in accordance with the correct base offense level in the
PSR, rather than the incorrect base offense
1
The HONORABLE STEPHEN N. LIMBAUGH, United States District
Judge for the Eastern District of Missouri.
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level agreed to in the Stipulation; and (2) that the district court's
alternative rationale will not sustain Johnson's sentence because his
criminal history is not sufficiently unusual in kind or degree to warrant
an upward departure.
After the briefs were filed but before oral argument, this court held
in United States v. Hascall, 76 F.3d 902 (8th Cir. 1996), that burglary of
a commercial building is a crime of violence as defined in § 4B1.2(1)(ii).
In other words, Hascall confirms that Johnson's Stipulation as to base
offense level was predicated on a correct application of the career
offender guideline, whereas the base offense level determination in his PSR
was incorrect. Hascall did not reflect a change in the Guidelines or in
their interpretation; it simply resolved an open issue in this Circuit.
Therefore, if we were to agree with Johnson's contentions on appeal and
remand for resentencing, Hascall would define the law applicable at that
resentencing.
At oral argument, counsel for Johnson conceded that Johnson does not
seek resentencing if Hascall will apply. Accordingly, we affirm.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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