United States v. Johnson, 2010 U.S. App. LEXIS 25598

Background

Undercover officer observed Johnson in a Camry with others; front passenger bought small quantities of a white substance from a man in the area known for drug activity.
Officer Bolte directed a stop; Johnson, the front passenger, appeared nervous and attempted to flee during a pat-down leading to his tasering and arrest.
Officers searched the passenger area of the Camry and found crack and powder cocaine in Johnson's vicinity; Bolte later identified Johnson as the man seen buying the substance.
Johnson was indicted for being a felon in possession of a firearm, using a firearm in drug trafficking, possession with intent to distribute crack cocaine, and possession of powder cocaine.
Johnson moved to suppress the stop and ensuing evidence, which the district court denied; trial occurred with some disputed evidentiary and sentencing issues, leading to convictions on felon-in-possession and powder cocaine and acquittals on other counts.
At sentencing, the district court denied a two-level reduction for acceptance of responsibility and there was a discussion about potential variations from the Guidelines; Johnson challenged several rulings on appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the district court chill Johnson's right to testify?	Johnson claims comments suggested he was less credible and deterred testimony.	Johnson argues the court improperly pressured or warned him about testifying.	No constitutional chilling of the right to testify.
Was Johnson's suppression motion properly denied?	The stop lacked reasonable suspicion and the ensuing search was unlawful.	The stop was supported by reasonable suspicion and the search incident to arrest was valid.	District court did not err; suppression denied.
Should the mid-trial ineffective assistance claim have been addressed during trial?	Counsel provided deficient plea-range information; district court should have resolve during trial.	Court cannot decide outcome-based claim before outcome exists; Brown not controlling.	Court did not err in not ruling mid-trial; claim not decided mid-trial.
Was there error in denying an acceptance of responsibility reduction?	Johnson admitted possession of the gun and should have received the 3E1.1(a) reduction.	Reduction not warranted where admission came late and after trial burden of proof.	No clear error; no 3E1.1(a) reduction.
Was the district court aware of its authority to vary from the Guidelines, and was there plain error in sentencing?	District court could have varied downward; objections were general and subject to plain error review.	No obvious error in sentencing procedure or authority to vary; detailed record supported discretion.	No plain error; court did not err in sentencing.

Key Cases Cited

United States v. Webber, 208 F.3d 545 (6th Cir.2000) (right to testify; waiver suffices; warnings do not chill testimony)
United States v. Stuart, 507 F.3d 391 (6th Cir.2007) (testimony-right not chilled by explaining consequences)
Paulette v. United States, 457 F.3d 601 (6th Cir.2006) (reasonable suspicion and vehicle search based on drug activity; drug-import search rationale)
Arvizu v. United States, 534 U.S. 266 (2002) (totality of the circumstances for reasonable suspicion; inferences from experience)
Arizona v. Gant, 556 U.S. 332 (2009) (scope of search incident to arrest in vehicle context; when permitted)
Thornton v. United States, 541 U.S. 615 (2004) (vehicle searches; contextual framework for contemporaneous safety concerns)
United States v. Brown, 367 F.3d 549 (6th Cir.2004) (acceptance of responsibility—timing and conduct in relation to guidelines)
United States v. Webber, 208 F.3d 545 (6th Cir.2000) (reiterated standard for evaluating suppression and related rights)
United States v. Davis, 514 F.3d 596 (6th Cir.2008) (reasonable suspicion and Terry stop framework)
Stuart, 507 F.3d 391 (6th Cir.2007) (analysis of defendant's right to testify and consequences)