United States v. Johnson

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2503

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

W ILLIE E ARL JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 1:05-cr-00980-18—Blanche M. Manning, Judge.

A RGUED F EBRUARY 16, 2011—D ECIDED JUNE 28, 2011

Before P OSNER, FLAUM, and SYKES, Circuit Judges.

F LAUM, Circuit Judge. This panel vacated Willie Earl

Johnson’s conviction for conspiring to distribute drugs and

remanded to the district court to resentence him on his two

remaining convictions. See United States v. Johnson, 592 F.3d

749 (7th Cir. 2010). After resentencing, Johnson appeals

again, this time arguing that the district court committed

procedural errors at resentencing and erred in reaching its

relevant conduct finding. With some reluctance, we affirm

the relevant conduct finding. But we remand because the

2 No. 10-2503

district court did not respond to Johnson’s repeated

requests for a reduced crack-to-powder ratio.

I. Background

Johnson and eight other defendants were indicted on

charges related to selling crack cocaine and heroin in and

around Aurora, Illinois, from approximately 2002 until

2005. Johnson was charged with conspiring to distribute

and to possess with intent to distribute controlled sub-

stances in violation of 21 U.S.C. §§ 841(a)(1) and 846

(Count One), possessing with intent to distribute

a controlled substance, in violation of 21 U.S.C. § 841(a)(1)

(Count Eleven), and utilizing a telephone to facilitate a

felony drug crime, in violation of 21 U.S.C. § 843(b) (Count

Twelve). Seven defendants pled guilty, while Johnson and

his co-defendant Ismael Garza went to trial.

A jury found Johnson guilty on all three counts

and concluded in a special verdict that he was accountable

for between five and fifty grams of crack. At his

first sentencing hearing, the district court attributed

31.5 grams of crack to him and sentenced him to

72 months’ imprisonment on Counts One and Eleven, and

48 months’ imprisonment on Count Twelve, to

run concurrently.

On appeal, we vacated Johnson’s conviction on Count

One due to insufficient evidence, but affirmed his remain-

ing convictions on Counts Eleven and Twelve. Johnson, 592

F.3d at 759. Accordingly, we remanded for resentencing on

Counts Eleven and Twelve because the jury’s special

No. 10-2503 3

verdict assigning a quantity of five to fifty grams of crack

was vacated with the conspiracy count. Id.

On remand, at Johnson’s second sentencing hearing, the

parties disputed whether phone calls between Johnson and

Craig Venson, the kingpin of drug conspiracy, supported

a relevant conduct finding under United States Sentencing

Guidelines (“U.S.S.G.”) § 1B1.3 based on drug transactions

discussed in the calls, and, if so, the quantities and types of

drugs for which Johnson was responsible. Johnson also

requested a 1:1 crack-to-powder ratio, instead of 100:1.

The district court found by a preponderance of the

evidence that Johnson was accountable for 23 grams

of crack and calculated a guidelines range of 92 to 115

months. After considering the factors in § 3553(a), the

district court sentenced him to 72 months’ imprisonment

on Count Eleven and 48 months’ imprisonment on Count

Twelve, to be served concurrently.

II. Analysis

A. The Crack/Powder Disparity at Sentencing

Johnson argues that the district court committed a

procedural error at resentencing by not expressly respond-

ing to his repeated requests for a 1:1 crack-to-powder ratio.

We review de novo whether the district court followed

proper sentencing procedures. United States v. Coopman, 602

F.3d 814, 817 (7th Cir. 2010).

We agree with Johnson that the district court erred. A

sentencing court need not respond expressly to every

4 No. 10-2503

argument a defendant makes, but it must address “ ’all of

a defendant’s principal arguments that are not so weak as

to not merit discussion.’ ” United States v. Arberry, 612 F.3d

898, 899 (7th Cir. 2010) (quoting United States v. Villegas-

Miranda, 579 F.3d 798, 801 (7th Cir. 2009)). At resentencing,

the district court briefly discussed some of the factors in

§ 3553(a). But it never responded to Johnson’s repeated

requests for a reduced ratio. Johnson specifically refer-

enced the district court’s authority “to reject and

vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those Guidelines,” Spears v.

United States, 555 U.S. 261, 129 S.Ct. 840, 844 (2009), listed

policy grounds that have motivated other sentencing

courts to apply a reduced crack-to-powder ratio, and asked

multiple times for a reduced ratio. His argument for a

reduced ratio was one of his primary contentions at

resentencing and was certainly not so weak as to not merit

discussion. See id. at 843-44; Kimbrough v. United States, 552

U.S. 85, 91, 110 (2007); Arberry, 612 F.3d at 899-901. In

fact, numerous other judges in the Northern District

of Illinois have applied lower ratios. See, e.g., United States

v. Edwards, No. 04-cr-1090-5, slip op. at 6, 2009 WL 424464,

at *3 (N.D. Ill. Feb. 17, 2009) (Gottschall, J.) (concluding

“that a 10:1 ratio is all that can possibly be justified”

in light of “evidence that the harms produced by powder

and crack are essentially the same (with the unquantifiable

possibility that crack may be more addictive)”); United

States v. Rodriguez, No. 08-cr-509-1, slip op. at 4-5, 2009 WL

1811001, at *2 (N.D. Ill. June 23, 2009) (Darrah, J.) (applying

a 20:1 ratio).

No. 10-2503 5

Our holding in United States v. Arberry, 612 F.3d 898 (7th

Cir. 2010), is directly on point. In that case, we vacated a

defendant’s sentence and remanded for resentencing

because the district court did not respond to the defen-

dant’s argument for a 1:1 ratio, which was one of his

principal arguments at sentencing. Id. at 900-01.

We disagree with the government’s contention that

Arberry is meaningfully distinct because the defendant in

that case received a within-guideline sentence, albeit on the

low end of the applicable guideline range, and Johnson

received a below-guideline sentence. Id. at 899. Arberry

applies because the district court there, as here, did not

respond to a criminal defendant’s principal, plausible

argument for a reduced crack-to-powder ratio. The govern-

ment points out that we wrote in United States v. Poetz, 582

F.3d 835 (7th Cir. 2009), that the “requirement that the

district court specifically address the defendant’s principal,

potentially meritorious sentencing arguments applies with

less force” where “the judge received voluminous evidence

and listened carefully to [the defendant’s] arguments . . .

and in the end imposed a short prison sentence signifi-

cantly below the applicable guidelines range.” Id. at 837.

Arberry’s force may be weakened, but it still applies.

We also reject the government’s argument that the

district court implicitly addressed Johnson’s request for a

lower ratio. See, e.g., United States v. Carrillo-Esparza,

590 F.3d 538, 540 (7th Cir. 2010); Poetz, 582 F.3d at 837-

40. The government directs us to Poetz, which we

find distinct because the record in that case demonstrated

that the district court considered the defendant’s argu-

6 No. 10-2503

ments about her and her family’s medical problems and

the im pact of incarceration as opposed to

home confinement on her family, even though it did not

expressly address each argument on the record. 582 F.3d at

837-40. Specifically, we explained that “Poetz’s health

problems took center stage” during sentencing, and “the

judge imposed a sentence substantially below the applica-

ble guidelines range largely because of her medical condi-

tion.” Id. at 838. We also found that the district court

implicitly expressed that it believed imprisonment, as

opposed to home confinement, was necessary based on a

portion of the record where “[t]he judge explained that

despite Poetz’s medical issues, a period of incarceration

was ‘fundamentally required’ to promote respect for the

law, provide for deterrence, and hold Poetz accountable for

her breach of the trust placed in stewards of public funds.”

Id. We concluded that “ ’anyone acquainted with the facts

would have known without being told why the judge had

not accepted the argument.’ ” Id. (quoting United States v.

Cunningham, 429 F.3d 673, 679 (7th Cir. 2005)). Finally, we

explained that Poetz’s argument about the effect of incar-

ceration on her family lacked legal support and, regardless,

we found that the district court implicitly considered her

argument based on the fact that the judge had voluminous

evidence before him substantiating the argument and

“[his] sentencing remarks [we]re peppered with references

to [Poetz’s] family.” Id. at 839.

Unlike in Poetz, the record provides no indication that the

district court implicitly considered Johnson’s argument for

a reduced ratio. Although Johnson received a below-

guideline sentence, we have no basis to conclude that his

No. 10-2503 7

sentence had anything to do with the crack/powder

disparity. To the contrary, it appears that the district court

calculated Johnson’s guideline range based on a 100:1 ratio

and showed no receptiveness to his argument for a re-

duced ratio. We have no grounds to conclude that the

district court applied a reduced ratio, as opposed to setting

a below-guideline sentence based on a 100:1 ratio, or that

the district court’s decision to impose a below-guideline

sentence was in any way related to the crack/powder

disparity. We cannot assume that the district court implic-

itly considered Johnson’s argument for a reduced ratio

merely because it imposed a below-guideline sentence.

Rather, we assume only that if the district court had

applied a reduced ratio or decided to impose a below-

guideline sentence based on the crack/powder disparity, it

would have expressly or implicitly indicated as much on

the record.

Accordingly, we vacate Johnson’s sentence and remand

to give the district court an opportunity to consider and

address his arguments for a reduced crack-to-powder ratio.

The district court need not conduct a complete sentencing

hearing, although, as we explain below, we invite it to do

so.

We reject Johnson’s request for a broader remedy.

Relying on Spears v. United States, 555 U.S. 261, 129

S.Ct. 840 (2009), he asks us to categorically prohibit

the district courts in the Northern District of Illinois from

using the 100:1 ratio based on policy considerations

indicating the disparity’s unfairness. But Spears does

not authorize us to grant such relief. The Court in Spears

wrote merely that “district courts are entitled to reject and

8 No. 10-2503

vary categorically from the crack-cocaine Guidelines based

on a policy disagreement with those Guidelines.” Id. at 843-

44 (emphasis added); see also United States v. Corner, 598

F.3d 411, 414-15 (7th Cir. 2010). That authority resides in

district courts, not courts of appeals. See Spears, 129 S.Ct. at

843-44; Kimbrough, 552 U.S. at 91, 110; see also Corner, 598

F.3d at 415 (“We understand Kimbrough and Spears to mean

that district judges are at liberty to reject any Guideline on

policy grounds—though they must act reasonably when

using that power.”). The courts of appeals review sentences

for procedural errors and substantive reasonableness, see,

e.g., Gall v. United States, 552 U.S. 38, 51 (2007); United States

v. West, 628 F.3d 425, 431 (7th Cir. 2010), but we cannot

categorically prohibit all sentencing courts from applying

a 100:1 ratio.

We thus reject Johnson’s final argument related to the

crack/powder disparity, that his sentence is unreasonable

based on the fact that the district court did not apply

a reduced ratio. As explained above, the district court had

discretion to apply a 100:1 ratio and to impose a below-

guideline sentence. We find no abuse of discretion.

B. Relevant Conduct

In Johnson’s first appeal, we vacated his conspiracy

conviction but found that the intercepted phone calls

on July 2, 2004, supported his conviction for possessing

crack with intent to distribute, in violation of 21

U.S.C. § 841(a)(1). Johnson, 592 F.3d at 757-59. Based on

those calls, the district court determined at re-

sentencing that Johnson possessed with intent to distribute

No. 10-2503 9

3.5 grams of crack on July 2, and ultimately attributed 23

grams of crack to him in setting his sentence based on the

intercepted calls between Johnson and Venson that evi-

denced crack transactions between the two.

“A court may increase a defendant’s sentence for un-

charged and unconvicted relevant conduct provided that

the conduct constitutes part of the ‘same course of conduct

or common scheme or plan as the offense of conviction.’ ”

United States v. Stephenson, 557 F.3d 449, 456 (7th Cir. 2009)

(quoting U.S.S.G. § 1B1.3(a)(2)); see also United States v.

Singleton, 548 F.3d 589, 591-92 (7th Cir. 2008). “Conduct

that qualifies as relevant is factored into the Guidelines’

sentencing calculations as if the defendant had been

convicted of that conduct, even though the defendant was

neither charged nor convicted of the additional crime or

crimes.” United States v. White, 519 F.3d 342, 347 (7th Cir.

2008). The government bears the burden of establishing

relevant conduct by a preponderance of the evidence. Id. at

347; United States v. Acosta, 85 F.3d 275, 279 (7th Cir. 1996).

As long as the district court based its conclusion on reliable

information, we review its determination that relevant

conduct occurred and its calculation of the drug amount

attributable to the defendant for clear error. See White, 519

F.3d at 348; Acosta, 85 F.3d at 279. We reverse “only if, after

reviewing the entire record, we are left with the firm and

definite conviction that a mistake has been made.” United

States v. Cross, 430 F.3d 406, 410 (7th Cir. 2005) (internal

quotation marks and citation omitted).

The district court relied on intercepted phone calls

between Johnson and Venson on July 1, 2, and 6, and

10 No. 10-2503

August 14, 20, and 31, among other evidence, to hold

Johnson accountable for 23 grams of crack in setting

his sentence. It concluded that each call evidenced occa-

sions on which Johnson purchased drugs and either resold

them or intended to, and thus that each constituted

relevant conduct under U.S.S.G. § 1B1.3.

Johnson contends that the district court committed four

errors in reaching its drug quantity finding: (1) it clearly

erred by finding that he possessed and sold or intended to

sell the crack discussed in the intercepted calls, and that

the code words “pack,” “basketball,” and “quarter pounder

with cheese” referred to 1 gram, 3.5 grams, and 7 grams of

crack, respectively; (2) it improperly based its relevant

conduct finding on testimony from unreliable witnesses;

(3) it did not explicitly find that his unconvicted conduct

was sufficiently related to the convicted offense to consti-

tute relevant conduct; and (4) it should not have consid-

ered FBI Special Agent Thomas Wilson’s testimony at

resentencing. While acknowledging that this is a close case,

we conclude that the district court did not clearly err in

attributing 23 grams of crack to Johnson, and we reject his

remaining arguments.

1. The District Court’s Relevant Conduct Finding

First, the district court did not clearly err in con-

cluding that Johnson possessed and sold or intended to sell

the crack discussed in the intercepted calls on July 1, 2, and

6, and August 14, 20 and 31. Johnson concedes that there is

sufficient evidence for the district court to have found that

he possessed with intent to distribute the 3.5 grams of

No. 10-2503 11

crack discussed in the July 2 calls, which formed the basis

of his conviction. There is also record evidence indicating

that he met Venson on August 14 shortly after requesting

crack from him on an intercepted call, and that he intended

to resell the drugs shortly after Venson delivered them.

Johnson correctly points out that there is less evidence that

he possessed and distributed or intended to distribute the

drugs he ordered on the other calls. But after reviewing

the record, we are not “left with the firm and definite

conviction that a mistake has been made.” Cross, 430 F.3d

at 410 (internal quotation marks and citation omitted).

We similarly find no clear error in the district court’s

decision that a “pack” referred to 1 gram of crack, a

“basketball” 3.5 grams of crack, and a “quarter pounder

with cheese” 7 grams of crack. While the intercepted calls

between Johnson and Venson do not indicate the quantities

of drugs to which the code words they used refer, other

record evidence, including testimony from Tosumbua

Parker, one of Johnson’s co-defendants, and a concession

by Johnson’s trial counsel, supports the district court’s

conclusion.

Despite our conclusion that there is enough evidence to

affirm the district court’s relevant conduct finding, how-

ever, Johnson correctly points out that we must reverse if

the evidence was not sufficiently reliable. See United States

v. Wilson, 502 F.3d 718, 721-22 (7th Cir. 2007); Acosta, 85

F.3d at 281-82. He specifically contends that Parker, Agent

Michael Culloton, and Agent Wilson provided unreliable

testimony. While they could have provided stronger

testimony, after reviewing the record, we find sufficient

12 No. 10-2503

indicia of reliability that their relevant testimony was likely

accurate.

2. Explicit Findings

We also disagree with Johnson’s argument that the

district court erred by not explicitly finding that

the transactions on July 1 and 6, and August 14, 20, and 31

were sufficiently related to the offense of conviction, which

occurred on July 2, to constitute relevant conduct. See

U.S.S.G. § 1B1.3. See generally United States v. Arroyo, 406

F.3d 881, 889 (7th Cir. 2005) (“When a district court aggre-

gates drug quantities arising from uncharged or unconvict-

ed relevant conduct for purposes of calculating a defen-

dant’s base offense level, we have required the court to

explicitly state and support, either at the sentencing

hearing or (preferably) in a written statement of reasons, its

finding that the unconvicted activities bore the necessary

relation to the convicted offense.” (internal quotation

marks and citations omitted)); United States v. Winbush, 580

F.3d 503, 513-14 (7th Cir. 2009). First, although the district

court did not expressly use the phrases “same course of

conduct” or “common scheme,” which appear in U.S.S.G.

§ 1B1.3, the record demonstrates that it made the necessary

findings. See Wilson, 502 F.3d at 723 (upholding a finding

under U.S.S.G. § 1B1.3 where, although the court did not

specifically use the phrases in the sentencing guidelines, it

was clear from the record that the court made the requisite

findings); see also United States v. Williams, 272 F.3d 845, 852

(7th Cir. 2001); Acosta, 85 F.3d at 280. Regardless, Johnson

concedes in his reply brief, and we agree, that “[i]f

No. 10-2503 13

the Government had introduced sufficient evidence

to prove by a preponderance of the evidence that Johnson

possessed and distributed (or intended to distribute) the

drugs involved in calls [on days other than July 2], then

those transactions would be relevant because they were

temporally related and involved transactions with the

same group of sellers.” Thus, since we conclude that the

government did introduce sufficient evidence, even if the

district court erred, the error was harmless. See F ED. R.

C RIM. P. 52(a); Arroyo, 406 F.3d at 890 (no plain error where

the district court assumed without specifically finding that

the defendant’s cocaine activity was sufficiently related to

his heroin conviction because “the record could support

the conclusion that the two offenses were part of the same

course of conduct”).

3. Agent Wilson’s Testimony at Resentencing

Finally, we find no merit to Johnson’s claim that the

district court erred by considering Agent Wilson’s testi-

mony at resentencing. The district court initially sustained

Johnson’s objection to Agent Wilson testifying, finding his

testimony tentative and imprecise and concluding that the

government had not shown enough to present him as a

witness. But after the government presented a Report to

Congress discussing the prices of crack based on data from

twenty American cities and relied on it to make arguments

about the price of crack in Aurora, the government asked

that Agent Wilson be allowed to testify about drug prices,

since his experience included investigations in Aurora, the

14 No. 10-2503

Chicago area, and Washington, D.C. The district court

ultimately permitted Agent Wilson to testify, and he

proceeded to discuss crack prices, use and distribution

quantities of crack, and various code words drug dealers

use. Johnson claims that the district court erred by permit-

ting Agent Wilson to testify, and references the fact that the

district court did not specify whether Agent Wilson was

testifying as an expert.

First, Johnson’s argument is waived because he provides

no authority indicating that the district court erred by

permitting Johnson to testify. See United States v. Useni, 516

F.3d 634, 658 (7th Cir. 2008) (failure to cite relevant author-

ity constitutes waiver). But even if not waived, his argu-

ment is meritless.

The Federal Rules of Evidence do not apply in sentenc-

ing hearings and the district court was entitled to rely

on [a witness]’s testimony even if it may not have

qualified as expert testimony under Federal Rule of

Evidence 702. The Guidelines (and the Due Process

Clause) allow sentencing courts to rely on information

that ‘has sufficient indicia of reliability to support its

probable accuracy.’

United States v. Hunter, 145 F.3d 946, 952 (7th Cir.

1998) (quoting U.S.S.G. § 6A1.3(a)); see also United States v.

Schroeder, 536 F.3d 746, 752 (7th Cir. 2008). As explained

above, Agent Wilson’s testimony was sufficiently reliable

to permit its consideration at sentencing. The district court

did not err by considering it.

No. 10-2503 15

III. Conclusion

For the foregoing reasons, we V ACATE Johnson’s sen-

tence and R EMAND for the district court to consider

his argument for a reduced crack-to-powder ratio. We

A FFIRM the district court’s decision to attribute 23 grams

of crack to Johnson. But we note that the evidence appears

to have permitted a lower drug quantity finding. Although

our standard of review on appeal prevents us from direct-

ing the district court to re-open fact finding on this

issue, the interests of justice may warrant reconsideration

of Johnson’s relevant conduct, and we invite the district

court to do so.

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