United States v. Johnson, 398 F. App'x 964

Johnson was charged in a second superseding indictment with conspiracy to manufacture/distribute methamphetamine and related pseudoephedrine counts, possession of a short-barreled shotgun, and two §924(c) firearm counts; penalty notices at indictment and arraignment stated 5-year and 10-year consecutive terms for the firearm counts; district court sentenced Johnson to 151 months for drug counts, 120 months for shotgun, plus 5-year and 25-year consecutive terms for the firearm counts, all to run consecutively to each other and to the drug sentences; the overall sentence was 511 months with five years of supervised release; this court affirmed prior convictions and sentences, and the Supreme Court remanded after Booker, with re-affirmation on remand; Johnson later moved under 28 U.S.C. §2255 asserting ineffective assistance of counsel on multiple grounds including due process based on incorrect penalty notice at arraignment; the magistrate judge recommended dismissal, the district court denied, and the court of appeals granted a COA on the due process/double notice claim; the issue on appeal is whether erroneous notice of the maximum penalty at arraignment implicated due process and thus ineffective assistance at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether misnotice of the possible sentence at arraignment violated due process for the 25-year §924(c)(1)(C)(i) enhancement	Johnson argues incorrect notice prevented informed sentencing and targeted §924(c)(1)(C)(i) as applying due to misnotification	Johnson contends the government/district court improperly prosecuted under a higher provision despite the notice	No due process violation; enhancement is a sentence factor, not an element, and notice before sentencing sufficed
Whether Johnson’s new claim about short-barreled shotgun as an element could be raised	Johnson asserts counsel should have argued the gun-type was an element proven to a jury	Laudable theory but not properly before the court without COA; court lacks jurisdiction over uncooled issue	Not addressed on merits due to lack of COA; jurisdictional bar applies
Whether counsel was ineffective for not challenging the second firearm enhancement as a violation of due process given misnotice	Ineffective assistance for not challenging 25-year enhancement based on misnotice	Enhancement was a sentence factor; notice before sentencing cured any potential defect	No ineffective assistance; enhancement was properly treated as a sentence enhancement, not an element

Gonzales v. United States, 121 F.3d 928 (5th Cir. 1997) (machine gun enhancement is a sentencing factor, not an element; notification prior to sentencing sufficed)
O’Brien v. United States, 130 S. Ct. 2169 (Supreme Court 2010) (holds machine gun provision is an element; recidivist provisions often sentencing factors; applies to §924(c)(1)(C)(i) as enhancement not element)
Almendarez-Torres v. United States, 523 U.S. 224 (Supreme Court 1998) (recidivism-based enhancements generally treated as sentencing factors)
LaBonte v. United States, 520 U.S. 751 (1997) (notification under 21 U.S.C. §851 prior to trial required for enhancements; distinguishable from §924(c)(1)(C)(i))
McCalla v. United States, 38 F.3d 675 (3d Cir. 1994) (erroneous penalty notice insufficient for relief when not dispositive under statute)
Perez-Torres v. United States, 15 F.3d 403 (5th Cir. 1994) (penalty notice issues considered in due process challenges)
Clark v. Collins, 19 F.3d 959 (5th Cir. 1994) (failure to raise meritless objection not ineffective assistance)
Deal v. United States, 508 U.S. 129 (1993) (recidivism and multiple §924(c) considerations in sentencing)
Mangaroo v. Nelson, 864 F.2d 1202 (5th Cir. 1989) (courts may affirm on any ground in the record)