464 F. App'x 112
4th Cir.2012Background
- Johnson was convicted by jury on conspiracy to distribute cocaine and distribution of cocaine under 21 U.S.C. §§ 841, 846; sentenced to 28 months on each count to run concurrently.
- Trial established Johnson acted as a middleman in a controlled cocaine purchase between co-defendant Staton and confidential informant Privette.
- Privette testified Johnson weighed cocaine at his auto-parts business, received $2,000, and handed the cash to Staton; Johnson and Staton were arrested at the scene.
- The PSR attributed 54.6 grams of cocaine to Johnson, yielding a Guidelines range of 27–33 months; district court imposed within-range sentences.
- Johnson challenged (1) lack of sua sponte inquiry into waiver of right to testify, and (2) the sentence’s reasonableness; the court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court should have sua sponte inquired about the waiver of the right to testify | Johnson | Johnson | No plain error; no mandatory on-record waiver. |
| Whether Johnson deserved a minor/minimal role reduction | Johnson | Johnson | District court did not err; Johnson's conduct was material/essential to the offense. |
| Whether sentence disparity with co-defendant renders the sentence unreasonable | Johnson | Johnson | Disparity with co-defendant not a basis to depart from Guidelines absent government manipulation. |
| Whether Johnson should receive credit for time served in state custody | Johnson | Johnson | No error; § 3585(b) credits are computed by BOP, not by district court. |
Key Cases Cited
- United States v. Olano, 507 U.S. 725 (1993) (plain-error standard for unraised issues on appeal)
- United States v. McMeans, 927 F.2d 162 (4th Cir. 1991) (courts do not always require on-record waivers of the right to testify)
- Sexton v. French, 163 F.3d 874 (4th Cir. 1998) (trial counsel, not the court, advises on the right to testify)
- United States v. Fells, 920 F.2d 1179 (4th Cir. 1990) (role adjustments depend on materiality of conduct)
- United States v. Pratt, 239 F.3d 640 (4th Cir. 2001) (inquiry for minor/minimal participation relevant to role adjustments)
- Gall v. United States, 552 U.S. 38 (2007) (reasonableness review of sentences involves procedural and substantive analysis)
- Rita v. United States, 551 U.S. 338 (2007) (within-Guidelines sentence presumed reasonable)
- United States v. Mendoza-Mendoza, 597 F.3d 212 (4th Cir. 2010) (emphasizes reasonableness review framework)
- United States v. Wilson, 503 U.S. 329 (1992) (defers credit calculations to BOP under § 3585)
- United States v. Withers, 100 F.3d 1142 (4th Cir. 1996) (sentencing disparity not a basis for departure without misconduct)
- United States v. Jeffery, 631 F.3d 669 (4th Cir. 2011) (assistance to government affects treatment in disparities context)