Filed: Feb. 09, 2012
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4269 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN MOWAD JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cr-00309-FL-2) Submitted: January 31, 2012 Decided: February 9, 2012 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Ferris R. B
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4269 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHN MOWAD JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:09-cr-00309-FL-2) Submitted: January 31, 2012 Decided: February 9, 2012 Before WILKINSON, GREGORY, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Ferris R. Bo..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4269
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHN MOWAD JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at New Bern. Louise W. Flanagan,
Chief District Judge. (5:09-cr-00309-FL-2)
Submitted: January 31, 2012 Decided: February 9, 2012
Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. May-
Parker, Kristine L. Fritz, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John Johnson was convicted by a jury of both counts of
an indictment charging him with conspiracy to distribute cocaine
and distribution of cocaine, in violation of 21 U.S.C. §§ 841,
846 (2006). The district court sentenced Johnson to 28 months
imprisonment on each count, to run concurrently. Johnson noted
a timely appeal in which he claims, first, that the district
court erred by failing to, sua sponte, inquire whether his
failure to testify on his own behalf was knowing and voluntary.
Second, Johnson asserts that his sentence is unreasonable.
Finding no error, we affirm.
The facts presented at trial established the
following. In September 2008, Johnson acted as a “middle man”
in a cocaine transaction between his co-defendant Edgar Staton
and Alpha Privette, a confidential informant for the Raleigh,
NC, Police Department. Privette testified that he had first met
Johnson the month prior after selling him (Johnson) a car
through Craigslist. Johnson offered to obtain cocaine for
Privette if he so desired. Afterward, Privette began
cooperating with the Raleigh police and called Johnson to set up
a controlled purchase of two ounces of cocaine; he and Johnson
arranged to meet and then proceeded to Johnson’s auto parts
business together. Once inside, Privette testified that Johnson
showed him the bag with cocaine but, because it was more than
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the two ounces that Privette wished to purchase, Johnson left to
retrieve a scale. He returned a short time later with his co-
defendant Edgar Staton. Johnson weighed the cocaine on the
scale, gave it to Privette, who handed $2000 cash to Johnson.
Johnson then gave the money to Staton. Johnson and Staton were
immediately arrested.
The jury returned a guilty verdict as to both counts.
The presentence report (PSR) held Johnson accountable for a
total of 54.6 grams of cocaine, resulting in a base offense
level of 16. With a criminal history category of III, the
recommended advisory Guidelines range was 27 to 33 months
imprisonment. The district court adopted the presentence report
and imposed a within-Guidelines sentence of 28 months on each
count, to run concurrently. Johnson noted a timely appeal.
Johnson first argues that the district court failed to
sua sponte inquire into whether Johnson’s failure to testify on
his own behalf was a knowing, voluntary, and intelligent waiver
of his right to do so. Because he failed to raise this issue
below, our review is for plain error. See United States v.
Olano, 507 U.S. 725, 732 (1993). We find no error--plain or
otherwise.
First, Johnson was advised during his arraignment of
his right to testify and present evidence at trial. Second,
there is no affirmative duty on a district court to obtain an
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on-the-record waiver of a defendant’s right to testify. See
United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see
also Sexton v. French,
163 F.3d 874, 882 (4th Cir. 1998)
(“[T]rial counsel, not the court, has the primary responsibility
for advising the defendant of his right to testify and for
explaining the tactical implications of doing so or not.”).
Johnson argues nonetheless that, under “exceptional
circumstances,” the district court has to duty to make an on-
the-record inquiry to determine if a defendant’s decision not to
testify is knowingly and intelligently made. We find no such
circumstances on the record before us.
Johnson also challenges the reasonableness of his
sentence. Specifically, he asserts that he was a minor
participant in the offense and should have been sentenced
accordingly; that his sentence is unjustly harsh as compared
with Staton; and that he should have received credit for time
served pretrial on state criminal charges arising out of the
same conduct.
We review a sentence for reasonableness under an abuse
of discretion standard. Gall v. United States, 552 U.S. 38, 51
(2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn,
592 F.3d 572, 575 (4th Cir. 2010).
In determining the procedural reasonableness of a sentence, we
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consider whether the district court properly calculated the
defendant’s Guidelines range, treated the Guidelines as
advisory, considered the 18 U.S.C. § 3553(a) (2006) factors,
analyzed any arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51. A sentence imposed within the properly calculated
Guidelines range is presumed reasonable by this court. See Rita
v. United States,
551 U.S. 338, 347 (2007); United States v.
Mendoza-Mendoza,
597 F.3d 212, 217 (4th Cir. 2010). We find
that the sentence imposed by the district court was both
procedurally and substantively reasonable.
Johnson argues that he should have received a four-
level reduction for having a minimal role in the offense. Under
U.S. Sentencing Guidelines Manual (USSG) § 3B1.2(a)-(b) (2010),
a defendant who is a “minimal participant” in criminal activity
may have his offense level reduced by four levels, and a
defendant who is a “minor participant” may have his offense
level reduced by two levels. Cases falling between subsections
(a) and (b) warrant a three-level reduction. USSG § 3B1.2.
Role adjustments are determined on the basis of the defendant’s
relevant offense conduct. United States v. Fells, 920 F.2d
1179, 1183-84 (4th Cir. 1990). In deciding whether the
defendant played a minor or minimal role, the “critical inquiry
is . . . not just whether the defendant has done fewer bad acts
5
than his co-defendants, but whether the defendant’s conduct is
material or essential to committing the offense.” United
States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal
quotation marks omitted).
The district court denied Johnson’s motion for a
reduction in his offense level based on his role in the offense,
“given [Johnson’s] integral involvement in the commission of the
offense. . . . [he] arranged the controlled purchase, conducted
a transaction at his business, brought cocaine to the meeting,
served as an intermediary for payment. . . . the role that he
played was essential for the commission of the offense.”
Because the district court properly found that Johnson’s conduct
was “material or essential to committing the offense,” the court
did not err in denying his motion for a reduction in his offense
level.
Johnson also argues that his sentence is unreasonable
because he received a harsher sentence than his co-defendant
(who received only an 11-month sentence.) The statutory
sentencing factors that a district court must consider in
selecting a sentence include “the need to avoid unwarranted
sentence disparities among defendants with similar records who
have been found guilty of similar conduct.” 18 U.S.C.A.
§ 3553(a)(6) (West 2000 & Supp. 2006). A disparity in the
length of sentences received by co-defendants is not a
6
permissible ground for a departure from the Guideline range,
absent prosecutorial misconduct such as manipulating Guideline
factors. United States v. Withers, 100 F.3d 1142, 1149 (4th
Cir. 1996). Johnson does not allege that any sentencing
manipulation by the Government created a sentencing disparity.
Moreover, Staton pled guilty and, therefore, is “not similarly
situated to a defendant who provides no assistance to the
government and proceeds to trial.” United States v. Jeffery,
631 F.3d 669, 679 (4th Cir.) (internal quotations omitted),
cert. denied, No. 10-10894,
2011 WL 4532052 (Oct. 3, 2011).
Finally, Johnson claims that he should have received
credit for time served in state custody. Because he raises this
issue for the first time on appeal, we review it for plain
error. Olano, 507 U.S. at 732. Under 18 U.S.C. § 3585(b)
(2006), the defendant shall receive credit for any time spent in
detention before this date: “(1) as a result of the offense for
which the sentence was imposed; or (2) as a result of any other
charge for which the defendant was arrested after the commission
of the offense for which the sentence was imposed; that has not
been credited against another sentence.” The Supreme Court has
held that § 3585(b) does not authorize a district court to award
such credit in the first instance; rather, the Attorney General,
through the Bureau of Prisons, is authorized to compute credit
due under the statute. United States v. Wilson,
503 U.S. 329,
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333-35 (1992). Therefore, the district court did not plainly
err in failing to award credit for time Johnson served in state
custody.
We find that Johnson’s sentence is both procedurally
and substantively reasonable. Accordingly, we affirm his
conviction and 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
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