United States v. Kiandre Johnson ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10044
Plaintiff-Appellee, D.C. No.
1:16-cr-00069-LJO-SKO-8
v.
MEMORANDUM*
KIANDRE JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence O’Neill, District Judge, Presiding
Submitted May 13, 2020
San Francisco, California
Before: WALLACE and R. NELSON, Circuit Judges, and GWIN,** District
Judge.
Defendant Kiandre Johnson appeals from the district court’s judgment. He
challenges the 138-month sentence imposed after his guilty-plea convictions for
conspiracy to commit murder in aid of racketeering and use of a facility of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable James S. Gwin, United States District Judge for the
Northern District of Ohio, sitting by designation.
interstate commerce to promote prostitution, in violation of 18 U.S.C. §§ 1952(a),
1959(a)(5). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part,
vacate in part, and remand for the district court to give more explicit explanation of
its decision rejecting Johnson’s argument that he should receive a minor role
sentencing adjustment.
Johnson first argues that a Government expert offered implicitly racist
expert testimony at Johnson’s sentencing hearing. Johnson contends that this
testimony impermissibly “tainted” the entire proceeding. He asks for a
resentencing.
The Government called the expert—a Fresno detective who specialized in
African American street gangs—to testify that Defendant Johnson was a gang
member. The expert testified that various evidence, including photographs and
music videos, showed Johnson’s gang membership.
During cross examination, Johnson’s counsel asked whether the expert knew
of Johnson’s familial relationships with the purported gang members in the
photographs, and the expert answered with a stereotype:
Q. Is part of your job to know what the relationships are,
especially since we're going to talk about the people in
the pictures and what their family relationships might be?
A. It’s very difficult to know that sometimes. Sometimes
you have individuals that where they’ll have the same
father, but their father may have had children with five or
six different women and there could be 28 to 30 kids that
have been produced by one male. So you have several
individuals that are related and sometimes they don’t
even know their relation. They just know that they’re
somehow related.
At the sentencing hearing, Johnson did not object that the expert’s testimony
“tainted” the entire proceeding. We therefore review for plain error. United States
v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009).
The Court rejects Johnson’s argument that implicitly racially biased expert
sentencing hearing testimony always results in an infirm sentence. Johnson cites
no case in which this Court or any other has vacated a sentence due to an expert’s
implicit racial bias. Johnson cites Buck v. Davis, 137 S. Ct. 759 (2017) for his
expansive proposition, but the Buck holding is not so broad.
In that case, Buck had already been convicted of murder, and at the death
penalty phase, the jury was tasked with deciding whether there was a probability
that Buck would continue to commit criminal acts of violence. Id. at 768. During
that phase, Buck’s own expert witness opined that the fact that Buck was black
carried with it an “increased probability” of future violence. Id. The Supreme
Court determined that Buck received ineffective assistance of counsel because of a
“perfect storm” in which the expert’s “opinion coincided precisely with a
particularly noxious strain of racial prejudice, which itself coincided precisely with
the central question at sentencing.” Id. at 776.
The instant case is unlike Buck. Johnson does not bring an ineffective
assistance claim; in fact, his prejudice argument is unconnected to any asserted
constitutional right. This omission alone makes Buck distinguishable.
In any event, the instant case’s challenged expert testimony substantially
differs from the prejudicial testimony in Buck. Here, the testimony bore on an only
marginally relevant sentencing issue. Indeed, the question the expert addressed—
whether Johnson was a gang member—did not impact any Guidelines calculation
or the 28 U.S.C. § 3553 factors. Accordingly, Johnson’s first argument fails.
Johnson next contends that the district court erred by denying his request for
a minor role reduction under U.S.S.G. § 3B1.2. In his sentencing memorandum,
Johnson requested a three-level minor role reduction. At the sentencing hearing,
the district court denied Johnson’s request for a minor role reduction, giving only
the following explanation: “On the minor role, based on what’s before me, I cannot
make a finding of minor role, so that objection is overruled.”
On appeal, Johnson claims the district court failed to consider the U.S.S.G. §
3B1.2 factors. See U.S.S.G. § 3B1.2 cmt. n.3(C) (2015).
We review the district court’s interpretation of the Guidelines de novo and
its application of the Guidelines to the facts for abuse of discretion. See United
States v. Gasca-Ruiz, 852 F.3d 1167, 1170-71 (9th Cir. 2017) (en banc). “[A]
district court need not tick off sentencing factors to show that it considered
them[.]” United States v. Diaz, 884 F.3d 911, 914 (9th Cir. 2018). However, in
this case, the district court denial did not reflect that the court had considered the
relevant § 3B1.2 factors, and the factors do not otherwise appear in the record.
Indeed, the district court offered essentially no explanation for his minor role
adjustment denial.
Therefore, we vacate Johnson’s sentence and remand for consideration of
the minor role sentencing factors.
AFFIRMED in part, VACATED in part and REMANDED for
resentencing.