Petition for Writ of Certiorari — Marlon Jermaine Johnson, Petitioner v. United States

APPENDIX A

APPENDIX B

APPENDIX A

Case: 22-6048 Document: 48-1 Filed: 03/05/2024 Page: 1

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

100 EAST FIFTH STREET, ROOM 540

Kelly L. Stephens POTTER STEWART U.S. COURTHOUSE

Clerk CINCINNATI, OHIO 45202-3988

Filed: March 05, 2024

Mr. Patrick F. Nash

Nash Marshall

129 W. Short Street

Lexington, KY 40507

Mr. Andrew H. Trimble

Office of the U.S. Attorney

Eastern District of Kentucky

601 Meyers Baker Road, Suite 200

London, KY 40741

Mr. Charles P. Wisdom Jr.

Office of the U.S. Attorney

Eastern District of Kentucky

260 W. Vine Street, Suite 300

Lexington, KY 40507-1612

Re: Case No. 22-6048, USA v. Marlon Johnson

Originating Case No. : 6:18-cr-00065-1

Dear Counsel,

The court today announced its decision in the above-styled case.

Tel. (513) 564-7000

www.ca6.uscourts.zov

Enclosed is a copy of the court’s published opinion together with the judgment which has

been entered in conformity with Rule 36, Federal Rules of Appellate Procedure.

Yours very truly,

Kelly L. Stephens, Clerk

Cathryn Lovely

Deputy Clerk

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cc: Mr. Robert R. Carr

Enclosures

Mandate to issue.

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RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit |.O.P. 32.1(b)

File Name: 24a0045p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appelliee,

> No. 22-6048

MARLON JERMAINE JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Kentucky at London.

No. 6:18-cr-00065-1—Claria Horn Boom, District Judge.

Decided and Filed: March 5, 2024

Before: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

COUNSEL

ON BRIEF: Patrick F. Nash, NASH MARSHALL, PLLC, Lexington, Kentucky, for Appellant.

Charles P. Wisdom, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky,

Andrew H. Trimble, UNITED STATES ATTORNEY’S OFFICE, London, Kentucky, for

Appellee.

OPINION

MATHIS, Circuit Judge. After a jury convicted Marlon Johnson of firearm and drugtrafficking offenses, the district court sentenced him to 300 months’ imprisonment. Johnson

raises constitutional, statutory, and evidentiary challenges to his convictions. Johnson also

argues that his sentence is substantively unreasonable. For the following reasons, we affirm.

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I.

In November 2018, an informant advised a deputy sheriff working for the Knox County

Sheriff's Department (“KCSD”) about nearby drug activity. According to that informant, a

black male named “Jake” was at a residence in Corbin, Kentucky, with a large quantity of

methamphetamine. Based on this information, the KCSD obtained a search warrant and

surveilled the residence. During the surveillance, officers observed a Toyota Corolla nearby.

After the surveillance and prior to executing the search warrant, KCSD officers met at a

nearby restaurant parking lot. Officers observed the same Toyota enter the lot, turn into the

restaurant’s drive-through area, and exit by circling back behind the business. A KCSD officer

followed the Toyota in his cruiser and saw that the driver was not wearing a seatbelt. The officer

activated his cruiser’s lights and sirens. Then, the Toyota sped away, crashed into a fence, and

struck another vehicle. Upon identifying Johnson as the driver, officers arrested him and

searched the vehicle. During the search, officers uncovered 1,222.21 grams of

methamphetamine—over 1,000 grams of that amount was pure—along with a loaded

semiautomatic pistol.

A grand jury indicted Johnson for possession with intent to distribute 500 grams or more

of a mixture or substance containing a detectable amount of methamphetamine, in violation of

21 U.S.C. § 841(a)(1), possessing a firearm in furtherance of a prosecutable drug-trafficking

offense, in violation of 18 U.S.C. § 924(c)(1)(A), and being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). Johnson proceeded to trial. After the first trial concluded in

a mistrial, the second trial resulted in guilty verdicts on all counts. The district court sentenced

Johnson to 300 months’ imprisonment. This timely appeal followed.

iH.

Johnson challenges his convictions and sentence on four grounds: (1) the jury venire was

not drawn from a fair cross section of the community, in violation of the Sixth Amendment and

the Jury Selection and Services Act (“ISSA”), 28 U.S.C. § 1867 et seq.; (2) his felon-in-

possession conviction violates the Second Amendment; (3) the district court erred in admitting

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the testimony of a government witness; and (4) his sentence is substantively unreasonable. We

address each argument in turn.

A. Sixth Amendment and JSSA Claim

The U.S. Constitution’s Sixth Amendment guarantees a criminal defendant the right to a

trial “by an impartial jury.” U.S. Const. amend. VI. An “essential component” of this guarantee

is the requirement that courts select all grand and petit juries at random from a fair cross section

of the community in the judicial district or division where the court convenes. Taylor v.

Louisiana, 419 U.S. 522, 528-29 (1975); United States v. Ovalle, 136 F.3d 1092, 1106 (6th Cir.

1998). This requirement focuses only on the “procedure for selecting juries, and not the outcome

of that process.” Ambrose v. Booker, 684 F.3d 638, 645 (6th Cir. 2012). The Sixth Amendment

does not impose a “requirement that petit juries actually chosen must mirror the community.”

Taylor, 419 U.S. at 538; see Ambrose, 684 F.3d at 645 (“The Sixth Amendment guarantees only

the opportunity for a representative jury, not a representative jury itself.” (citation omitted)).

To establish a prima facie case for a fair-cross-section claim, a defendant must show:

(1) that the group alleged to be excluded is a “distinctive” group in the

community; (2) that the representation of this group in venires from which juries

are selected is not fair and reasonable in relation to the number of such persons in

the community; and (3) that this underrepresentation is due to systematic

exclusion of the group in the jury-selection process.

Duren v. Missouri, 439 U.S. 357, 364 (1979). Once satisfied, the burden shifts to the

government, which “bears the burden of justifying this infringement by showing attainment of a

fair cross section to be incompatible with a significant state interest.” Jd. at 368. We use the

same analysis for JSSA claims. Ovaille, 136 F.3d at 1099; United States v. Allen, 160 F.3d 1096,

1102 (6th Cir. 1998) (explaining that the test for JSSA liability is “essentially identical to the

Duren . . . test used in the Sixth Amendment fair-cross-section analysis”). Whether a violation

under the Sixth Amendment or JSSA has occurred is a mixed question of law and fact, which we

review de novo. Allen, 160 F.3d at 1101.

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1.

The Eastern District of Kentucky (“EDKY”) promulgated its most recent Plan for the

Random Selection and Qualification of Grand and Petit Jurors on June 29, 2018. See Plan for

the Random Selection and Qualification for Grand Petit Jurors (E.D.K.Y. 2018) (the “Jury

Selection Plan”).’ The Jury Selection Plan states that “[i]t is the policy of [the EDKY] that all

persons and entities entitled to consideration by a jury shall have the right to grand and petit

juries selected at random from a fair cross-section of the community in the jury division of the

district wherein the court convenes,” and that “[nJo citizen shall be excluded . . . on account of

race, color, religion, sex, national origin or economic status.” Jd. §§ 1.1, 2.1.

The Jury Selection Plan uses a funnel-like system to ensure a fair cross section of the

community is selected. This begins with the random selection of individuals across the EDKY,

using voter registration lists for each of the EDKY’s counties. Id. §§ 4.1, 5.1-5.2. The names

selected are placed in both the Master Wheel of EDKY, along with the Master Jury Wheel of

their respective judicial division.” See id. §§ 4.1, 5.1-5.2, 6.1-6.2. From the Master Jury Wheel,

names are (again) randomly selected to determine whether each person is eligible for placement

in their respective division’s Qualified Jury Wheel. Jd. §§ 10.2, 13.1. To qualify for placement,

an individual must be: (1) a United States citizen who is at least eighteen years of age and has

resided for at least one year in the EDKY; (2) proficient in the English language; and

(3) mentally and physically capable of serving as a juror. Id. § 8.3(1)-(4). A felony conviction

or a pending felony charge disqualifies a person from jury service. Id. § 8.3(5).

For the Qualified Jury Wheel, the EDKY obtains eligibility information by delivering

questionnaires to potential jurors, which are prepared and executed to conform with 28 U.S.C.

§ 1864. Jd. §§ 12.1-12.2. Once a district court determines that it needs to empanel a petit jury,

the district court directs the clerk of court to draw enough names to meet the needs of the case.

Id. § 10.2. The clerk draws those names from the Qualified Jury Wheel of the jury division in

‘The Jury Selection Plan can be accessed at: hitps://www.kyed.uscourts.gov

/sites/kyed/files/Jury_Plan FILED.pdf.

2The EDKY’s London Division includes the counties of Bell, Clay, Harlan, Jackson, Knox, Laurel, Leslie,

McCreary, Owsley, Perry, Pulaski, Rockcastle, Wayne, and Whitley. Jury Selection Plan § 6.2.

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which the petit jury is empaneled. Jd. If an insufficient number of jurors are selected, the clerk

calls additional names until the court reaches a sufficient number of potential jurors. Jd.

Johnson’s first trial began in May 2021. After the jury-selection process failed to

summon a single African American juror, Johnson objected. The district court overruled his

objection. After that, the jury deadlocked, necessitating a new trial.

Before his second trial, and at Johnson’s request, the district court approved the hiring of

a jury pool consultant. This consultant requested trial jury data from the EDKY and analyzed

those data. Based on the consultant’s analysis, Johnson filed a “Motion for a Jury Drawn from a

Representative and Fair Cross-Section of the Community or, in the Alternative, Motion to

Dismiss.” The motion asserted that the London Division’s Qualified Jury Wheel

“underrepresents black people” at a “statistically significant” rate. R. 352, PageID 2772. More

specifically, Johnson claimed that the consultant’s comparative disparity analysis showed that

“there is as much as a 57.28% under representation of African Americans in the current London

Division” Qualified Jury Wheel, and that more than 50% “of the black jurors expected to be in

the current” wheel was missing. Id. at 2772~73 (emphasis omitted). Johnson contends that the

underrepresentation was “not limited to the current London Division;” it also existed at the time

of the 2017 and 2019 wheels. Jd. at 2774.

The district court denied Johnson’s motion. It found that Johnson failed to satisfy the

third prong of the Duren test because (i) “long-standing statistical disparity is not enough to

establish systematic exclusion”; and (ii) Johnson failed to point to any other viable source of

exclusion in the EDK Y’s jury-selection procedures. R. 373, PageID 2908-16. The parties did

not dispute the first Duren prong, and the district court opted not to resolve the second prong.

Once the second trial commenced, the jury wheel yet again produced no African American

jurors. Johnson renewed his motion and the district court, sticking with its prior decision, denied

it.

2.

On appeal, the parties focus their arguments on the third Duren prong, and so will we.

Johnson makes two main arguments on appeal. First, he maintains that his statistical analysis—

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bo, j

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comparative disparity and standard deviation—establishes the per se existence of a systematic

exclusion of African Americans in the London Division. Second, and in the alternative, Johnson

argues that several procedures that the EDKY used systematically exclude African Americans

from jury pools. For the following reasons, we reject Johnson’s arguments.

a.

A challenged disparity is considered a “systematic exclusion” if it is “inherent” to the

jury-selection process. Allen, 160 F.3d at 1104. This ordinarily requires the defendant to show

either a large routine discrepancy or identify a specific procedural or operational flaw linked to

the underrepresentation of the distinctive group in the jury venire. See Duren, 439 U.S. at 366—

67. For example, in Duren, the Supreme Court found that the low percentage of women

available at the final venire stage of jury selection (around 15%) satisfied the third prong and that

the defendant’s evidence linking fewer women jurors with Missouri’s practice of automatically

exempting from jury service any women who requested not to serve also led to this conclusion.

Id. And in Garcia-Dorantes v. Warren, we concluded that “a computer glitch in the Kent

County software that [] systematically excluded African-Americans from the jury pool from

April 2001 through early 2002” satisfied the third prong. 801 F.3d 584, 587, 603 (6th Cir. 2015).

Johnson has not identified a procedural or operational flaw in the Jury Selection Plan that

could satisfy the third Duren prong. To begin, nonextreme statistical disparities, standing alone,

are ordinarily insufficient to satisfy this requirement. See Bates v. United States, 473 F. App’x

446, 450 (6th Cir. 2012). However, a routinely “large discrepancy” may “manifestly indicate[]

that the cause of the underrepresentation was systematic—that is, inherent in the particular jury

selection process utilized.” Duren, 439 U.S. at 366; Bates, 473 F. App’x at 450 (“Indeed, an

extreme underrepresentation may be enough to establish a per se systematic exclusion.”); Smith

v. Berghuis, 543 F.3d 326, 340 (6th Cir. 2008) (“While this disparity may not rise to the level of

demonstrating systematic exclusion per se, this persistent disparity combined with Petitioner’s

evidence . . . was sufficient.”), rev’d on other grounds, 559 U.S. 314 (2010). But because the

size of the distinctive group, relative to the jury-eligible population, is too small to produce a

trustworthy comparative disparity, we are hesitant to find a per se systematic exclusion here.

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The comparative disparity calculation can help courts measure a distinctive group’s

underrepresentation in a jury venire. “Comparative disparity measures the decreased likelihood

that members of an underrepresented group will be called for jury service, in contrast to what

their presence in the community suggests it should be.” Garcia-Dorantes, 801 F.3d at 601

(quoting United States v. Shinault, 147 F.3d 1266, 1272 (10th Cir. 1998))

Establishing comparative disparity requires some math. To determine comparative

disparity, one must divide the absolute disparity of the distinctive group “by that group’s

percentage in the general population.” Jd. Absolute disparity is the difference between a

distinctive group’s percentage in the general population and that group’s percentage in the

qualified jury wheel. Jd. at 600-01. Although comparative disparity is a “more appropriate

measure of underrepresentation” when the overall population of a distinctive group is small, id.

(quoting Smith, 543 F.3d at 338), it can still lead to misleading results where, as here, the

distinctive group is also only a small percentage of the community’s jury-eligible population,

Smith, 543 F.3d at 338-39. See Shinault, 147 F.3d at 1273 (“{T]he smaller the group is, the more

the comparative disparity figure distorts the proportional representation.” (alteration in original)

(quoting United States v. Hafen, 726 F.2d 21, 24 (1st Cir. 1984))).

The EDKY’s 2021 Master Wheel consisted of 40,020 names, 1,999 of which were

randomly selected for potential placement in the London Division’s Qualified Jury Wheel. The

London Division delivered the same number of jury qualification forms. Of the forms mailed

out, 1,356 were completed and returned and 233 were declared undeliverable. Twelve (0.88%)

of the forms returned came from individuals who identified as “Black or African American.”

However, 195 individuals (14.38%) failed to indicate their race. When these “unknowns” were

removed, the percentage of African Americans in the London Division’s Master Jury Wheel rose

to amere 1.03%.

To compile the Qualified Jury Wheel, the London Division removed 810 names because

those individuals were either ineligible or excused from serving. Three of the 810 individuals

removed, or 0.37%, identified as “Black or African American.” After accounting for those

removals, 779 names remained in the Qualified Jury Wheel. Only nine (1.16%) were “Black or

African American.” According to the EDKY’s AO-12 form, 1.7% of the London Division’s

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citizen population is African American.4 Thus, using Johnson’s data, the London Division’s

comparative disparity is 32%—a number that probably satisfies the second Duren prong. See

Smith, 543 F.3d at 338 (finding a 34% comparative disparity sufficient to satisfy the second

prong).

Nevertheless, with a distinctive group so miniscule, even a small change in the group’s

share of the qualified jury pool would distort the comparative disparity analysis. For example, if

we increase the total number of African Americans in the jury-eligible population from nine to

eleven, their share of the Qualified Jury Wheel increases to only 1.4%. But with that figure, the

comparative disparity in the London Division plummets from 32% to 17.6%. For this reason,

several courts have rejected the usefulness of comparative disparity where, as here, the

distinctive group’s share of the jury-eligible population is so small. See United States v. Weaver,

267 F.3d 231, 243 (3d Cir. 2001) (“Looking first at the comparative disparity figures, we find

that they are quite high—40.01% and 72.98%—but that [is] because African-Americans and

Hispanics comprise such a small percentage of the population, the results of this analysis are of

questionable probative value.”); Shinault, 147 F.3d at 1273 (finding comparative disparities of

48%, 50%, and almost 60% to be “distorted by the small population of the different minority

groups”). We do the same. Comparative disparity cannot, by itself, establish the third Duren

prong when the size of the distinctive group comprises only 1.16% of the jury-eligible

population.

Seemingly recognizing the weaknesses of his comparative disparity analysis, Johnson

pivots to a standard deviation analysis that he claims shows the existence of systematic

exclusion. Standard deviation measures “the predicted fluctuations from the expected value.”

Castaneda y. Partida, 430 U.S. 482, 496 n.17 (1977). The problem for Johnson is that he points

3An AO-12 form

provides the following information on the current, non-emptied master jury wheel used

by the Division: (1) general information about the master wheel, including identification of the

source data and number of names placed in the wheel; (2) data related [to] the sampling of

returned questionnaires, including [the] number of forms mailed, returned, returned undeliverable

and demographic data concerning the race, ethnicity, and sex of those individuals returning forms;

(3) data related to the sampling of the qualified jury wheel including relevant demographic data of

the qualified wheel; and (4) a comparison of the jury wheel sample against the population of the

jury division.

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to evidence that compares apples and oranges. The jury consultant calculated the standard

deviation for the comparison between the jury-eligible percentage of African Americans in the

EDKY and the percentage of African Americans in the London Division Qualified Jury Wheel.

Depending on the year, the comparison ranged from four to six standard deviations below the

expected value. Although the data are interesting because they may show a concentration of

qualified African Americans outside of the London Division, they do not show a systematic

underrepresentation in the London Division’s jury-selection process. The relevant community is

the division, and not the district. As we have previously held, the drawing of a jury from a fair

cross section of the community in either a district or a division in which the court convenes, as

the JSSA commands, passes constitutional muster. United States v. Davis, 27 F. App’x 592, 597

(6th Cir. 2001).

b.

As an alternative to his statistical arguments, Johnson points to the following EDKY

procedures which he contends showed the existence of systematic exclusion of African

Americans in the EDKY: (i) the exclusive use of voter registration lists as the starting point for

the jury-selection process; (ii) the disqualification of all potential jurors who have a felony

conviction; and (iii) the removal of potential jurors who did not respond to jury questionnaires or

otherwise had their questionnaires declared undeliverable. However, none of these arguments

persuades us.

First, this court and other circuits have found that the use of voter registration lists as the

exclusive source of jury venire members does not generally constitute systematic exclusion

under Duren’s third prong. See, e.g., United States v. Wagoner, 836 F. App’x 374, 381 (6th Cir.

2020) (finding “no systematic failure” where the petit jury was “selected by randomly draw[ing

names] from the voter rolls” (alteration in original) (internal quotation marks omitted)); United

States v. Carmichael, 560 F.3d 1270, 1279 (11th Cir. 2009); United States v. Gonzalez-Velez,

466 F.3d 27, 39 (1st Cir. 2006); United States v. Morin, 338 F.3d 838, 844 (8th Cir. 2003);

United States v. Smallwood, 188 F.3d 905, 914~15 (7th Cir. 1999).. And Johnson points to

nothing to suggest systematic underrepresentation in the voter registration lists or an operational

\ }

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flaw in EDKY’s use of these lists that may have caused an underrepresentation of African

Americans.

Second, the disqualification of felons from the Qualified Jury Wheel is not “inherent” to

the EDKY’s Jury Selection Plan; rather, federal law requires it. 28 U.S.C. § 1865(b)(5)

(mandating the disqualification of any individual from serving on a federal grand or petit jury

who “has a charge pending against him for the commission of, or has been convicted in a State

or Federal court of record of, a crime punishable by imprisonment for more than one year and his

civil rights have not been restored.”). And Johnson does not provide any evidence linking the

exclusion of African American jurors from the qualified jury pool because of the felon

disqualification rule beyond mere speculation.

Third, the removal of unresponsive jurors from the Qualified Jury Wheel is not an act of

systematic exclusion. Nonresponses that are “the result of individual choice” are not a problem

“inherent” to EDKY’s Jury Selection Plan. Bates, 473 F. App’x at 451 (citing United States v.

Cecil, 836 F.2d 1431, 1447 (4th Cir. 1988)). Here, Johnson put forth no evidence to suggest that

potential African American jurors face unique obstacles that prevent them from receiving or

returning the questionnaire. And to the extent that Johnson argues that the exclusion of jurors

with undeliverable questionnaires produce an unrepresentative cross section, he points to nothing

that shows that these jurors were disproportionately African American.

B. Second Amendment Claim

Next, Johnson raises a challenge to his felon-in-possession conviction under the Second

Amendment based on New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Johnson

specifically argues that 18 U.S.C. § 922(g)(1) is unconstitutional as applied to him. But as

Johnson acknowledges, he did not raise this challenge before the district court. Thus, we review

it for plain error. See Greer v. United States, 593 U.S. 503, 507 (2021) (“If the defendant has ‘an

opportunity to object’ and fails to do so, he forfeits the claim of error. If the defendant later

raises the forfeited claim on appeal, [the] plain-error standard applies.” (quoting Fed. R. Crim. P.

51(b))). Under plain-error review, a defendant must establish: (1) an error, (2) that was “plain,”

— ; }

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(3) that affected “substantial rights,” and (4) that seriously impacted “the fairness, integrity or

public reputation of judicial proceedings.” Jd. at 507-08 (citations omitted).

Johnson has failed to show that the district court committed plain error. An error is

“plain” if it is “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United

States, 556 U.S. 129, 135 (2009). In situations “where the law at the time of trial was settled and

clearly contrary to the law at the time of appeall,] it is enough that the error be ‘plain’ at the time

of appellate consideration.” Johnson y. United States, 520 U.S. 461, 468 (1997); see United

States v. White, 58 F Ath 889, 894 (6th Cir. 2023) (“{P]lain-error review applies ‘[e]ven where a

new rule of law is at issue.’” (quoting Henderson v. United States, 568 U.S. 266, 272 (2013))).

Reversal is mandated only in “exceptional circumstances.” United States v. Gardiner, 463 F.3d

445, 459 (6th Cir. 2006) (quoting United States v. Carroll, 26 F.3d 1380, 1383 (6th Cir. 1994)).

After Bruen, we have not addressed the constitutionality of § 922(g)(1), United States v.

Bowers, No. 22-6095, 2024 WL 366247, at *3 (6th Cir. Jan. 31, 2024), but some of our sister

circuits have. A circuit split exists regarding the constitutionality of felon-in-possession

convictions. The Eighth Circuit held that felon-in-possession convictions do not violate the

Second Amendment, opining that “Congress acted within the historical tradition when it enacted

§ 922(g)(1) and the prohibition on possession of firearms by felons.” United States v. Jackson,

69 F.4th 495, 505 (8th Cir. 2023). Around that same time, the Third Circuit sustained an asapplied challenge to § 922(g)(1) for a prospective gun owner who had a prior state conviction for

making a false statement to obtain federal food stamps. Range v. Att’y Gen., 69 F Ath 96, 106

(3d Cir. 2023) (en banc). As we have previously explained, “[a] circuit split precludes a finding

of plain error, for the split is good evidence that the issue is subject to reasonable dispute.”

United States v. Al-Maliki, 787 F.3d 784, 794 (6th Cir. 2015) (quotation omitted).

This court and our sister circuits have also rejected Second Amendment challenges to

§ 922(g)(1) under plain-error review. See Bowers, 2024 WL 366247, at *3; United States v.

EtchisonBrown, No. 22-10892, 2023 WL 7381451, at *3 (Sth Cir. Nov. 7, 2023) (per curiam)

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(“Because the constitutionality of § 922(g)(1) after Bruen is far from settled and there is no -

controlling authority, the district court’s application of § 922(g)(1) to EtchisonBrown was not

plain error.”); United States v. Racliff, No. 22-10409, 2023 WL 5972049, at *1 (5th Cir. Sept. 14,

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2023) (per curiam) (“Because there is no binding precedent explicitly holding that § 922(g)(1) is

unconstitutional and because it is not clear that Bruen dictates such a result, Racliff is unable to

demonstrate an error that is clear or obvious.”); United States v. Garza, No. 22-51021, 2023 WL

4044442, at *1 (Sth Cir. June 15, 2023) (per curiam) (“Because there is no binding precedent

explicitly holding that § 922(g)(1) is unconstitutional on its face or as applied and because it is

not clear that either Bruen or [United States v.] Rahimi[, 61 F.Ath 443 (5th Cir. 2023)] dictate

such a result, Garza is unable to demonstrate an error that is clear or obvious.”); United States v.

Hill, No. 22-2400, 2023 WL 2810289, at *2 (7th Cir. Apr. 6, 2023) (order) (“[A]fter Bruen, no

appellate court has held that § 922(g)(1) violates the Second Amendment .... Because the law

is unsettled, any error, if there was one, would not be plain.”).

Without precedent explicitly holding that § 922(g)(1) is unconstitutional and because it is

unclear that Bruen dictates such a result, we find that Johnson has not satisfied the plain-error

standard.

C. Res Gestae Evidence

Generally speaking, Federal Rule of Evidence 404(b) prohibits the admission of evidence

of a criminal defendant’s prior bad acts unless it is introduced for an acceptable purpose.

However, background evidence, often referred to as res gestae evidence, lays outside the rule’s

ambit. United States v. Clay, 667 F.3d 689, 697 (6th Cir. 2012). “While [res gestae evidence] is

an exception . . . it does not allow a party to evade 404(b) by introducing any and all other act

>

evidence.” Jd. (internal citations omitted). “The principle contains severe limitations as to

‘temporal proximity, causal relationship, or spatial connections’ among the other acts and the

charged offense.’” Jd. (quoting United States v. Hardy, 228 F.3d 745, 749 (6th Cir. 2000)).

Thus, res gestae evidence must be “inextricably intertwined with the charged offense.” United

States v. Churn, 800 F.3d 768, 779 (6th Cir. 2015) (internal quotation marks omitted). More

specifically, it “may include evidence that is a prelude to the charged offense, is directly

probative of the charged offense, arises from the same events as the charged offense, forms an

integral part of the witness’s testimony, or completes the story of the charged offense.” Id.

(citation omitted). We review a trial court’s decision to admit testimony as res gestae evidence

for an abuse of discretion. See United States v. Pratt, 704 F. App’x 420, 423 (6th Cir. 2017).

(14 of 18)

Case: 22-6040" Document: 48-2 Filed: 03/05/2024 Page: 13

No. 22-6048 United States v. Johnson Page 13

Prior to Johnson’s first trial, the government notified Johnson that it intended to introduce

the testimony of witness “A” and Joshua Angel.4 Witness A was a confidential informant for the

KCSD who tipped off law enforcement about Johnson’s drug-trafficking activities. Angel knew

that Johnson stayed in the house where the Toyota was observed nearby and introduced Johnson

to the informant in the month prior to the charged conduct. Further, on a “couple of occasions”

prior to the charged events, both witness A and Angel sold the same drugs “along with or for”

Johnson. R. 396, PagelID 3069-70. These drug sales occurred between three to five weeks prior

to the charge date. On each occasion, Angel observed Johnson with a firearm.

Johnson moved to exclude Angel’s testimony under Federal Rules of Evidence 403 and

404. He argued that any statements relating to his drug-trafficking activities would unfairly

prejudice him and would serve only to prove bad character. The district court denied the motion

after finding their testimony admissible as res gestae evidence. In doing so, the district court

noted that Angel’s testimony had the potential to “sort of frame the story or complete the story”

of Johnson’s introduction to Angel, along with “relevant [] background evidence for why

[Johnson] was at the house, why he was in town, and ultimately . . . what was the intention with

respect to the drugs they found that were located in the vehicle.” Jd. at 3074. The district court

therefore found that the government satisfied all “three [] criteria” for the admission of res gestae

evidence: “the prior acts occurred within a few weeks of [Johnson’s] ultimate arrest. There is [a]

spa(t]ial relationship; the same county, the same drug, the same residence being used. So we’ve

got the spa[t]ial, temporal, and the causal.” Id.

We note that the facts of this case are strikingly similar to United States v. Chalmers, 554

F. App’x 440 (6th Cir. 2014). There, the defendant was arrested and charged with multiple

felonies after the execution of a search warrant recovered 90 grams of marijuana and a firearm at

his residence. Chalmers, 554 F. App’x at 442-43. Before trial, the government sought to

introduce the testimony of a lay witness who was not only present at the time of the search but

had visited the same residence on ten prior occasions to buy marijuana from Chalmers. Jd. at

444. All of these transactions allegedly occurred about two weeks before Chalmers’s arrest. Id.

4The transcript of the hearing on Johnson’s motion in limine refers to Angel as “Witness C.” However, the

identity of witness C as Angel was revealed at a later date.

(15 of 18)

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No. 22-6048 United States v. Johnson Page 14

at 445. The district court admitted this testimony, finding it was res gestae evidence and, thus,

not subject to Rule 404(b). Id. at 446. We affirmed, noting that the definition of “background”

evidence included evidence that was “part of a continuing pattern of illegal activity.” Id. at 450—

51 (citing United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995)).

The district court did not abuse its discretion in admitting the evidence. The close

temporal, spatial, and causal proximity between the “couple of’ drug deals and the circumstances

of Johnson’s arrest confirm that Angel’s testimony was res gestae evidence. After all, these

transactions took place between three to five weeks prior to the charged conduct, involved the

same drug, the same residence, the same undercover witness who provided information essential

to securing the search warrant in this case, and the same practice of Johnson having a firearm

during each of the relevant transactions. These prior acts establish a pattern of drug activity

which, in turn, provides valuable background to Johnson’s charged conduct.5

D. Substantive Reasonableness of Sentence

We generally review the reasonableness of a defendant’s sentence for an abuse of

discretion. United States v. Fleischer, 971 F.3d 559, 567 (6th Cir. 2020). Substantive

reasonableness, when challenged by a defendant, concerns whether “a sentence is too long.”

United States v. Rayyan, 885 F.3d 440, 442 (6th Cir. 2018). This inquiry requires us to consider

if “the court placed too much weight on some of the [18 U.S.C.] § 3553(a) factors and too little

on others.” Id. A sentence within the Sentencing Guidelines range is presumptively reasonable.

United States v. Pirosko, 787 F.3d 358, 374 (6th Cir. 2015). “Accordingly, a defendant’s burden

of demonstrating that his below-guidelines sentence is unreasonably long is even more

demanding.” United States v. Fields, 763 F.3d 443, 455 (6th Cir. 2014) (citations and internal

quotation marks omitted).

The district court sentenced Johnson to a below-Guidelines sentence of 300 months’

imprisonment.

5The district court alternatively found that the testimony was admissible under Rule 404(b). Because we

find that the district court did not err in admitting the evidence as res gestae, we need not address that separate

ground.

(16 of 18)

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No. 22-6048 United States v. Johnson Page 15

One of Johnson convictions was for possession with the intent to distribute 500 grams of

a mixture or substance containing methamphetamine. To ascertain the offense level for

defendants convicted of trafficking methamphetamine, the Guidelines’ Drug Quantity Table

employs a 10:1 weight ratio between methamphetamine mixtures and actual methamphetamine

or “ice.” U.S.S.G. § 2D1.1(c). For example, “10 grams of a methamphetamine mixture is the

equivalent of 1 gram of actual methamphetamine or ice. And, in the case of a mixture, the base

offense level is to be determined by (1) the entire weight of the methamphetamine mixture or

(2) the weight of the methamphetamine (actual), whichever is greater”’ United States v.

Johnson, 812 F. App’x 329, 332 (6th Cir. 2020) (citation and internal quotations marks omitted).

Johnson argues that the district court erred in its use of the 10:1 ratio because this

methodology “is not based upon any accurate factual premise” and “results in unwarranted

sentencing disparities.” D. 35 at pp.47-48. But a district court’s use of the 10:1 ratio is a

discretionary decision that cannot, by itself, render a criminal sentence invalid. See United

States v. Kennedy, 65 F.4th 314, 326 (6th Cir. 2023); United States v. Mosley, 53 F.4th 947, 965

(6th Cir. 2022) (finding petitioner’s challenge to 10:1 ratio lacked “salience” because the

argument “amount[ed] to little more than a policy disagreement[,] . . . which the district court

had discretion to reject.”); see also United States v. Brooks, 628 F.3d 791, 800 (6th Cir. 2011).

Therefore, the district court did not abuse its discretion when it declined to reject the 10:1 ratio,

and Johnson has failed to rebut the presumption of reasonableness.

TH.

For the foregoing reasons, we AFFIRM the district court’s judgment.

5, a “ )

Case: 22-6048 Document: 48-3 Filed: 03/05/2024 Page: 1 (18 of 18)

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 22-6048

UNITED STATES OF AMERICA,

Plaintiff - Appellee, FE | LE D

v. , Mar 05, 2024

KELLY L. STEPHENS, Clerk

MARLON JERMAINE JOHNSON,

Defendant - Appellant.

Before: SILER, MATHIS, and BLOOMEKATZ, Circuit Judges.

JUDGMENT

On Appeal from the United States District Court

for the Eastern District of Kentucky at London.

THIS CAUSE was heard on the record from the district court and was submitted on the briefs

without oral argument.

IN CONSIDERATION THEREOF, it is ORDERED that the judgment of the district court is

AFFIRMED.

ENTERED BY ORDER OF THE COURT

Kelly L. Stephens, Clerk

APPENDIX B

Case: 6:18-cr-00065-CHB-HAI Doc #: 429 Filed: 12/01/22 Page: 1 of 7 - Page ID#: 3925

s

AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 1

UNITED STATES DISTRICT COURT

Eastern District of Kentucky — Southern Division at London

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

v. )

Marlon Jermaine Johnson Case Number: 6:18-CR-065-SS-CHB-01

) USM Number: — 22353-032 beets

) Hantern District of Kentualy

) Patrick F, Nash PILED

,) Defendant’s Attorney

THE DEFENDANT: REE 6

C pleaded guilty to count(s) _ capiietans

=] pleaded nolo contendere to count(s) __ BORER 8 Cape +

which was accepted by the court. aL EN EEIIES

2] was found guilty on count(s) _1SS, 288, and 3SS [DE #83]

afler a plea of not guilty.

The defendant is adjudicated guilty of these offenses:

Title & Section Nature of Offense Offense Ended Count

21:841(a)(1) Possession with the Intent to Distribute 500 Grams of a Mixture or Substance November 19, 2018 ISS

Containing Methamphetamine

18:924(c) Possession of a Firearm in Furtherance of a Drug Trafficking Offense November 19, 2018 258

18:922(2)(1) Felon in Possession of a Firearm November 19, 2018 38S

The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to

the Sentencing Reform Act of 1984.

i] The defendant has been found not guilty on count(s)

& Count(s) Original [DE #1] and Superseding Indictments [DE #35] [1 is i! are dismissed on the motion of the United States.

It is ordered that the defendant must notify the United States attomey for this district within 30 days of any change of name, residence,

or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,

the defendant must notify the court and United States attorney of material changes in economic circumstances.

November 29, 2022

Date of Imposition of Judgment

[it bin._C LOU Aron

Signature of Judge °

Honorable Claria Horn Boom, U.S. District Judge

Name gnd Title of Judge

V pceuber 2; 2022

Date

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AQ 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 2 - Imprisonment

Judgment ---- Page 2 oI 7

DEFENDANT: Marlon Jermaine Johnson

CASE NUMBER: | 6:18-CR-065-SS-CHB-01

IMPRISONMENT

The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:

Two Hundred Forty Months (240) Months on Count 1SS and Sixty (60) Months on Count 3SS, to run concurrently to each other;

and Sixty (60) Months on Count 28S, to run consecutively to Counts 1SS and 3SS, for a total term of THREE HUNDRED (300)

MONTHS

i The court makes the following recommendations to the Bureau of Prisons:

That the defendant participate in the 500-Hour RDAP Program,

That the defendant participate in a mental health program.

That the defendant participate in a job skills and/or educational/vocational training program.

That the defendant be designated to either of the facilities in Lompoc, Terminal Island, or Victorville, California.

The defendant is remanded to the custody of the United States Marshal.

C] The defendant shall surrender to the United States Marshal for this district:

i) oat Toam © pm on

[1 as notified by the United States Marshal.

f] ‘The defendant shall surrender for service of sentence at the institution desi gnated by the Bureau of Prisons:

-] before 2 p.m. on

{1 as notified by the United States Marshal.

C} as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on ; to

at , with a certified copy of this judgment.

UNITED STATES MARSHAL.

By

DEPUTY UNITED STATES MARSHAL

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AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3 - Supervised Release

DEFENDANT: Marlon Jermaine Johnson

Judgment—Page 3 of 7

CASE NUMBER: _ 6:18-CR-065-SS-CHB-01

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of:

Five (5) Years on Counts 1SS and 2SS, and Three (3) Years on Count 38S, to all ran concurrently, for a total term of

FIVE (5) YEARS

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You nwust not unlawfully possess a controlled substance.

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court.

C] The above drug testing condition is suspended, based on the court's determination that you

pose a low risk of future substance abuse. (Check. ifapplicabie.)

O) You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (Check, if applicable.)

& You must cooperate in the collection of DNA as directed by the probation officer. (Check, ifapplicatle.j

Ci You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, er seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you

reside, work, are a student, or were convicted of a qualifying offense. (Cheek, if applicable)

[] You must participate in an approved program for domestic violence. (Check, if applicable.)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

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AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3A ~ Supervised Release

DEFENDANT: Marlon Jermaine Johnson

Judgment----Page 4 of 7

CASE NUMBER: 6:18-CR-065-SS-CHB-01

STANDARD CONDITIONS OF SUPERVISION

As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed

because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation

officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.

l.

to

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your

release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time

frame.

Afier initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and

when you must report to the probation officer, and you must report to the probation officer as instructed.

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

You must answer truthfully the questions asked by your probation officer.

You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72

hours of becoming aware of a change or expected change.

You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from

doing so. Ifyou do not have full-time employment you must try to find full-time employment, unless the probation officer excuses

you from doing so. Ifyou plan to change where you work or anything about your work (such as your position or your job

responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10

days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming

aware of a change or expected change.

You must not communicate or interact with someone you know is engaged in criminal activity. If you know somcone has been

convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the

probation officer.

If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon {i-c., anything that was

designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may

require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the

person and confirm that you have notified the person about the risk.

You must follow the instructions of the probation officer related to the conditions of supervision.

You must comply strictly with the orders of your physicians or other prescribing source with respect to the use of any prescribed

controlled substances. You must report any changes regarding your prescriptions to your probation officer immediately (i.c., no later

than 72 hours). The probation officer may verify your prescriptions and your compliance with this paragraph.

U.S. Probation Office Use Only

A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this

Judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised

Release Conditions, available at: www.uscoutts. gov.

Defendant’s Signature Date

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AO 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 3D - Supervised Release

fudgmient—-Page 5 of

DEFENDANT: Marlon Jermaine Johnson

CASE NUMBER: 6:18-CR-065-SS-CHB-01

SPECIAL CONDITIONS OF SUPERVISION

{. You must participate in urinalysis testing, or any other form of substance abuse testing, as directed by the

probation officer. You must refrain from obstructing or attempting to obstruct or tamper, in any fashion, with

the efficiency and accuracy of any prohibited substance testing which is required as a condition of your release.

You must not knowingly use or consume any substance that interferes with the accuracy of substance abuse

testing.

2, You must submit your person, properties, homes, residences, vehicles, storage units, papers, computers (as

defined in 18 U.S.C. § 1030(e)(1), but including other devices excluded from this definition), other electronic

communications or cloud storage locations, data storage devices or media, or offices, to a search conducted by

a United States probation officer. Any search must be done at a reasonable time and manner. Failure to submit

to a search will be grounds for revocation of release. You must warn any other occupants that the premiscs may

be subject to searches pursuant to this condition,

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AO 245B (Rey. 09/19} Judgment in a Criminal Case

Sheet 5 - Criminal Monetary Penalties

Judgment ---- Page 6 of 7

DEFENDANT: Marlon Jermaine Johnson

CASE NUMBER: — 6:18-CR-065-SS-CHB-01

CRIMINAL MONETARY PENALTIES

The defendant must pay the total criminal monetary penalties under the schedule of payments on Sheet 6.

Assessment Restitution Fine AVAA Assessment* JVTA Assessment**

$ $300.00 ($100/Count) $ Community Waived § Waived 3 NA S$ N/A

TOTALS

C] The determination of restitution is deferred until

__. An Amended Judgment in a Criminal Case (AO 2450) will be entered

after such determination.

C) The defendant must make restitution (including community restitution) to the following payees in the amount listed below.

Tf the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in

the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid

before the United States is paid.

Name of Payee ‘Total Loss*** Restitution Ordered Priority or Percentage

TOTALS $ 3.

C] Restitution amount ordered pursuant to plea agreement $

C] The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the

fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(4. All of the payment options on Sheet 6 may be subject

to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).

[] The court determined that the defendant does not have the ability to pay interest and it is ordered that:

CJ the interest requirement is waived for the [2 fine [2 restitution.

(the interest requirement for the {1 fine (restitution is modified as follows:

* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299,

** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.

**+* Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses commitied on or

after September 13, 1994, but before April 23, 1996.

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AQ 245B (Rev. 09/19) Judgment in a Criminal Case

Sheet 6 - Schedule of Payments

Judgment -- Page 7 of 7

DEFENDANT: Marlon Jermaine Johnson

CASE NUMBER: 6:18-CR-065-SS-CHB-01

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:

A & Lump sum payment of$ 300.00 due immediately, balance due

[1 not later than ,or

J inaccordancewith CF oC, [1 Db, (1 E,or & F below; or

B () Payment to begin immediately (may be combined with fr] ¢, Cl D, or C1 F below); or

C (1 Payment in equal (e.g., weekly, manihly, quarterly) installments of $ over a period of

fe.z., months or years), to commence _. (e.g. 30 or 60 days} after the date of this judgment; or

D ©] Payment in equal _ __. ©. weekly, monthly, quarierly) installments of $ over a period of

(@.g., months or years), to commence __ (¢.g., 30 or 66 days) after release from imprisonment to a

term of supervision; or

E () Payment during the term of supervised release will commence within fe.g., 30 or 60 days) after release from

imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time: or

F & Special instructions regarding the payment of criminal monetary penalties:

Criminal monetary penalties are payable to:

Clerk, U.S. District Court, Eastern District of Kentucky

3105. Main Street, Room 215, London, KY 40741

INCLUDE CASE NUMBER WITH ALL CORRESPONDENCE

Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during

the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’ Inmate Financial

Responsibility Program, are made to the clerk of the court.

The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.

C1 Joint and Several

Case Number

Defendant and Co-Defendant Names

(including defendant number} Total Amount Joint and Several Amount Corresponding Payee. if appropriate

Cl] The defendant shall pay the cost of prosecution.

Cl] The defendant shall pay the following court costs):

The defendant shall forfeit the defendant’s interest in the following property to the United States:

As indicated in the Preliminary Judgement of Forfeiture [DE #415] as to the items set forth in the Forfeiture Allegation of the Second

Superseding Indictment.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, inchiding cost of

prosecution and court costs.