United States v. Johnson, Bobby D.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 02-3663

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BOBBY DEWAYNE JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Illinois.

No. 01-30152-DRH—David R. Herndon, Judge.

____________

ARGUED APRIL 7, 2003—DECIDED AUGUST 19, 2003

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Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge. Bobby DeWayne Johnson re-

ceived a sentence that was seven and a half years more

than the ten-year mandatory minimum due to the district

court’s relevant conduct determination that he distributed

1.5 kilograms of crack cocaine. On appeal, he challenges the

district court’s drug quantity calculation, arguing that the

self-incriminating statement he made following his arrest

was unreliable and should have been evaluated under a

clear and convincing evidence standard of proof. We do not

find Johnson’s statement unreliable, nor do we believe the

district court was required to apply a higher standard of

2 No. 02-3663

proof than the preponderance of the evidence standard.

Therefore, we affirm Johnson’s conviction and sentence.

I. BACKGROUND

Johnson was arrested when he arrived at a hotel room to

consummate a drug sale with a police informant. During

the arrest, the police searched Johnson and seized 10.8

grams of crack cocaine and .62 grams of heroin. Johnson

began crying, stating that he was willing to cooperate and

did not want to go to jail. He also told the officers that

he had a large heroin habit of 2 grams per day. The follow-

ing day, eleven hours after his arrest, Johnson was advised

of his Miranda rights and agreed to make a statement. In

his statement, he admitted that he had sold “1/16th” (one

ounce) of crack cocaine to the informant six times in the

past week and a half, and had sold one ounce of crack co-

caine each day for the past seven or eight months. Johnson

was indicted for possession with the intent to distribute

in excess of five grams of crack cocaine, in violation of 21

U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and ultimately pled

guilty to the charge without entering into a written plea

agreement with the government.

Before Johnson pled guilty, the government filed an infor-

mation which included, pursuant to 21 U.S.C. §§ 841, 850,

and 851, giving the court and Johnson notice that he was

subject to a mandatory minimum sentence of 10 years’ im-

prisonment and a maximum sentence of life imprisonment

due to a previous felony drug conviction. At the guilty plea

hearing, the government informed the court of Johnson’s

post-arrest statement in which he admitted his involvement

in the offense and detailed conduct that amounted to dis-

tribution in excess of 500 grams of crack cocaine. The

district court determined that Johnson knew (1) he was

pleading guilty to possessing in excess of 5 grams of crack

cocaine with the intent to distribute, (2) he was facing a

No. 02-3663 3

sentence of 10 years to life, and (3) because of his post-

arrest statement his sentence could be severe. The court ad-

vised Johnson that, in addition to the 10.8 grams seized

during his arrest, his accountability with respect to other

drugs would require a separate determination of relevant

conduct that the court would make rather than a jury.

Johnson acknowledged that he understood this process and,

other than challenging that he sold more than 500 grams of

crack cocaine, agreed with the government’s factual asser-

tions.

At sentencing, the district judge reviewed the presentence

investigation report (PSR) detailing Johnson’s relevant

conduct based on his post-arrest statement, which con-

cluded that Johnson’s relevant conduct consisted of distrib-

uting in excess of 1.5 kilograms of crack cocaine.1 Johnson

objected to this calculation by challenging the reliability

of his statement. He offered witnesses who testified that he

may have been suffering from heroin withdrawal and

desperate for more drugs at the time he made his state-

ment. He also argued for a higher standard of proof than

the preponderance of the evidence standard. The district

court adopted the PSR, overruled Johnson’s objection, and

refused to apply a higher standard of proof. The court

ruled that his relevant conduct was 1.5 kilograms or more

of crack cocaine, which resulted in a sentencing range of

210 to 262 months’ imprisonment, and sentenced him to

210 months.

Johnson now appeals, renewing his argument that his

post-arrest statement was unreliable. He asserts that his

lengthy sentence amounts to “tail wagging the dog” because

it was the result of his relevant conduct, and not the con-

duct that precipitated his arrest, and this conduct was not

proved by clear and convincing evidence.

1

The 1.5 kilograms was reached by multiplying one ounce (28.35

grams) by 210 days (approximately 7 months) to arrive at 5,935.5

grams of crack cocaine.

4 No. 02-3663

II. ANALYSIS

Relevant conduct determinations are factual findings that

we review with great deference to the district court, revers-

ing only in the case of clear error. United States v. Car-

mack, 100 F.3d 1271, 1276 (7th Cir. 1996).2 For relevant

conduct, the government is required to prove the amount of

drugs attributable to a defendant by a preponderance of the

evidence. United States v. Ofcky, 237 F.3d 904, 908 (7th Cir.

2001). Proving relevant conduct by a preponderance of the

evidence requires showing that the conduct was “ ‘more

likely than not,’ i.e., probable or likely rather than just

possible.” United States v. Shannon, 110 F.3d 382, 401 n.10

(7th Cir. 1997) (en banc) (citing United States v. Saulter, 60

F.3d 270, 280 (7th Cir. 1995)).

Here, Johnson’s relevant conduct was based on his post-

arrest statement that he dealt one ounce of crack cocaine

every day for the preceding seven to eight months. Self-

incriminating statements such as Johnson’s, which was

clearly against his penal interest, “have long been consid-

ered reliable enough for use at trial . . . , so we cannot say

that they are too unreliable for use at sentencing.” United

States v. Szakacs, 212 F.3d 344, 352-53 (7th Cir. 2000).

Indeed, we have held that a drug dealer’s self-incriminat-

ing statement to a drug enforcement agent, which was of-

fered at sentencing solely through the testimony of the

agent (as opposed to a written confession or testimony by

the dealer), was sufficiently reliable because “[n]o one was

more qualified than [the dealer] himself to put a number on

2

“Clear error review means that the district court’s decision will

not be reversed unless after reviewing the entire record we are left

with a definite and firm conviction that a mistake has been com-

mitted.” Id. at 1276 (citing United States v. Flores-Sandoval, 94

F.3d 346, 349 (7th Cir. 1996)).

No. 02-3663 5

the amounts of cocaine he was purchasing and re-selling.”

United States v. Contreras, 249 F.3d 595, 602 (7th Cir.

2001).

Nothing about Johnson’s case makes it different. Like

the district court below, we are unpersuaded by Johnson’s

argument that his heroin addiction makes his statement

inherently unreliable. To support his argument, Johnson of-

fered the testimony of Dr. Jonathan Lipman, Ph.D., a neu-

ropharmacologist, who testified that based on his review of

Johnson’s arrest and hospitalization records, Johnson may

have been suffering from heroin withdrawal at the time

he made the statement and under such circumstances may

have been willing to say anything in the hopes of being

released and obtaining more drugs to feed his addiction.3

Johnson also offered the testimony of Andrea Smith, an as-

sistant federal public defender, who said that Johnson ap-

peared to be suffering from severe heroin withdrawal when

she met with him two days after his arrest (the day after he

made his statement). Johnson, however, did not testify on

his own behalf.

The officers who arrested Johnson and took his confession

testified that he did not appear to be going through with-

drawal at the time he confessed but instead seemed very

alert and coherent. They also testified that he stated he

wanted to cooperate, signed a written waiver of his Mir-

anda rights, and read over and corrected his statement (ini-

tializing his corrections) before signing it. They further

stated that while Johnson was willing to incriminate him-

self, he was unwilling to give the name of his drug supplier

3

Johnson also submitted a report of Dr. Heidi Israel, Ph.D., who,

like Dr. Lipman, did not interview or examine Johnson, but who

nevertheless opined that Johnson’s possible heroin withdrawal

might have caused him to say anything in order to obtain more

drugs.

6 No. 02-3663

to the interrogating officers. The district court concluded

that while the testimony proffered by Johnson was helpful

in explaining the progression of opiate withdrawal, it did

not override the officers’ testimony that Johnson did not

appear to be going through withdrawal at the time he made

his statement. We accord exceptional deference to a sen-

tencing judge’s credibility determinations. See, e.g., United

States v. Johnson, 227 F.3d 807, 813 (7th Cir. 2000); United

States v. McClinton, 135 F.3d 1178, 1193 (7th Cir. 1998).

And under these circumstances, we cannot say that the dis-

trict court committed clear error in rejecting Johnson’s

addiction argument and sentencing him based on his post-

arrest statement.

Johnson argues that his sentence amounts to a “tail wag-

ging the dog” because it was his relevant conduct, and not

the conduct that precipitated his arrest, that lengthened his

sentence from ten years to seventeen and a half years, and

that relevant conduct was not proved by clear and convinc-

ing evidence. “It is well-established that simply a prepon-

derance of the evidence is all that is required for a factual

finding under the Sentencing Guidelines.” United States v.

Porter, 23 F.3d 1274, 1277 (7th Cir. 1994) (citing United

States v. Corbin, 998 F.2d 1377, 1387 (7th Cir. 1993)). “A

higher standard might be called for only in the rare in-

stance where a factual finding will result in a sentencing

increase so great that the sentencing hearing can fairly be

characterized as a tail which wags the dog of the substan-

tive offense.” Corbin, 998 F.2d at 1387 (citations and quota-

tion marks omitted). Johnson claims that his case is similar

to United States v. Hopper, 177 F.3d 824 (9th Cir. 1999),

and United States v. Kikumura, 918 F.2d 1084 (3d Cir.

1990), in which the Ninth and Third Circuits respectively

held that proof by clear and convincing evidence was

required in order to substantially enhance a defendant’s

sentence based on relevant conduct. See Hopper, 177 F.3d

at 833 (clear and convincing evidence required for increase

No. 02-3663 7

from 24-30 months to 63-78 months because of the relative

shortness of the unenhanced sentencing range); Kikumura,

918 F.2d at 833 (twelve-fold sentence increase, from a range

of 27-33 months to a term of thirty years, must be proved by

clear and convincing evidence). Our decisions have im-

plicitly agreed with Kikumura to the extent that due pro-

cess considerations may, at some point, require a greater

showing for a dramatic increase. Nevertheless, we have

approved the preponderance standard in numerous cases

in which a defendant’s sentence was increased by a factor

greater than in Kikumura or Hopper. See, e.g., United

States v. Rodriguez, 67 F.3d 1312, 1323 (7th Cir. 1995)

(enhancement from 51-63 month range to sentence of life

imprisonment); United States v. Porter, 23 F.3d 1274, 1277

(7th Cir. 1994) (enhancement from 33-41 month range to

137-month sentence); United States v. Masters, 978 F.2d

281, 286-87 (7th Cir. 1992) (enhancement from 33-41 month

range to 40-year sentence); United States v. Schuster, 948

F.2d 313, 315-16 & n.3 (7th Cir. 1991) (enhancement from

21-27 month range to 5-year sentence). While this list is not

exhaustive, it is sufficient to show that the increase in

Johnson’s sentence is not one of those rare instances in

which a higher standard is required.4

4

While this case presents a sentence that is less troublesome

than those which this court has previously rejected applying a

higher standard of proof, the significant increase in Johnson’s sen-

tence due to his self-incriminating statement, and the circum-

stances in which he gave it, underscore the need for the proper

exercise of prosecutorial discretion. In this case, we hope that the

prosecutors exercised this power with an eye toward justice, mind-

ful of the discretion that is essential to the proper functioning of

the criminal justice system. See United States v. Zendeli, 180 F.3d

879, 886-87 (7th Cir. 1999); see also United States v. LaBonte, 520

U.S. 751, 762 (1997).

8 No. 02-3663

III. CONCLUSION

For the foregoing reasons, the judgment of the district

court is AFFIRMED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—8-19-03