United States v. Johnson

UNITED STATES OF AMERICA v. ANTHONY JOHNSON, JR., Appellant

No. 18-2616

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Submitted: May 1, 2019

August 14, 2019

NOT PRECEDENTIAL

On Appeal from the United States District Court for the Western District of Pennsylvania

(D.C. No. 2-08-cr-00285-001)

District Judge: Honorable Joy Flowers Conti

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 1, 2019

Before: RESTREPO, ROTH and FISHER, Circuit Judges.

OPINION^*

FISHER, Circuit Judge.

Anthony Johnson was sentenced to more than four years' imprisonment forviolating the terms of his supervised release. He challenges factual findings and legal conclusions underlying his sentence, and also argues that the sentence is procedurally unreasonable. We will affirm.

I.

In 2010, Johnson was convicted of two counts of possession of crack cocaine with intent to deliver¹ and one count of possession of a firearm in relation to drug trafficking.² In 2017, he finished his prison sentence and began serving his supervised release. In 2018, his probation officer filed three petitions with the District Court, averring that Johnson had committed multiple violations of the terms of his supervised release.

The District Court held a hearing on the alleged violations. Johnson admitted one violation: failing multiple drug tests by testing positive for marijuana. The Government presented evidence of three other violations: an assault and two instances of possession of drugs with intent to deliver.

First, in March 2018, Johnson was pulled over by a state trooper who suspected he was violating the traffic code because his window tint was too dark. The trooper testified that as he walked up behind Johnson's SUV, he noticed a "very strong masking odor," that is, an "artificial fragrance" such as an air freshener.³ Johnson was polite and cooperative, but seemed nervous, with labored breathing and shaking hands. A recordscheck revealed that Johnson had a history of drug and weapon violations. In addition, a local borough police officer who happened by said he was familiar with Johnson "from a [Drug Enforcement Administration] roundup back in 2008."⁴ The trooper gave Johnson a warning about the window tint and asked for permission to search the vehicle, which Johnson denied. However, the trooper believed he had reasonable suspicion that Johnson was dealing drugs and did not let him leave.

The trooper called for a K-9 unit. After the dog arrived and alerted to the odor of narcotics, the trooper searched the SUV and found a digital scale and a plastic bag of marijuana weighing about eight and a half ounces. The trooper testified that an ounce or less would be consistent with personal use; that scales are commonly used for drug distribution; and that the street value of the marijuana would be $1500 to $1700. Johnson was charged with felony possession with intent to deliver and was released after posting bail.

The second alleged violation took place a month later. Johnson encountered a man in a bar, called him a "snitch,"⁵ punched him, and then kicked him after he fell to the floor. Johnson was charged with felony aggravated assault, simple assault, and harassment.

Five days after the assault, an Aliquippa police officer pulled Johnson overbecause there was a warrant for his arrest. Within a few minutes, the scene was surrounded by thirty to fifty people, some of whom, for reasons unknown to the officer, were trying to access the vehicle. When backup arrived, two officers began to secure the SUV and one of them spotted two baggies inside, in plain view, that looked like cocaine. When the officer picked up a nearby napkin to protect himself as he moved the baggies, two glassine bags fell out of the napkin. The glassine bags appeared to contain heroin, and the plastic baggies field-tested positive for powder and crack cocaine. The officer testified at the hearing that the drugs did not appear to be for personal use because of their quantities, their various types, and the lack of consumption paraphernalia, such as a pipe or syringe.

The officer testified that he watched the SUV throughout the incident and none of the bystanders gained access to it. A witness gave conflicting testimony that, when she arrived at the scene, Johnson was in the back of the police car, a different man was sitting in the driver's seat of the SUV, and a woman was grabbing her purse out of the SUV. The witness said that a county sheriff pulled up and "screamed out[,] ['][W]hy are they in that truck[?][']"⁶ It was at that point, the witness testified, that the police made everyone step away from the SUV.

After hearing the evidence, the District Court ruled that Johnson had violated the terms of his supervised release and that the assault and the two possessions with intent todistribute were Grade A supervised release violations. Further, the court ruled that one of the underlying offenses of which Johnson was convicted in 2010—possession of a firearm in relation to drug trafficking⁷—was a Class A offense. The court imposed multiple terms of imprisonment, running concurrently, for an effective overall sentence of 50 months, followed by five years' supervised release. Johnson appeals.

II.⁸

In order to revoke supervised release, a district court must find, by a preponderance of the evidence, that the defendant violated the terms of his release.⁹ The court must then refer to the Sentencing Guidelines, which provide a table for determining the defendant's sentencing range.¹⁰ The length of the sentence depends on three variables: the grade of supervised release violation the defendant committed, the class of his underlying criminal offense, and his criminal history category.¹¹ For the sentence to be procedurally reasonable, the district court must (among other tasks) take into account the sentencing factors that form a part of any criminal sentencing.¹²

Johnson attacks all three phases of this decision-making process: the factual findings that he violated his release terms; the categorizations of his violations and underlying offense; and whether his sentence was procedurally reasonable.

A.

Johnson challenges the factual findings with regard to both the marijuana possession and the cocaine possession.

Johnson's attack on the marijuana violation is twofold. First, he argues that his SUV was unconstitutionally searched and that the evidence found—the marijuana and the scale—should have been suppressed. Second, he argues that the evidence did not show he intended to distribute the marijuana. We review for clear error the factual findings supporting a decision to revoke supervised release, and we review legal issues de novo.¹³

Johnson's suppression argument begins with his assertion that we should extend the exclusionary rule to supervised release proceedings. The Government counters that the exclusionary rule has not been extended beyond the trial context.¹⁴ We decline to reach this question because we conclude that, regardless of the applicability of the exclusionary rule, the search was lawful.

After pulling Johnson over, the trooper developed a reasonable suspicion that Johnson was engaged in criminal activity. Johnson appeared nervous; there was a strongmasking odor of air-freshener; and Johnson had a criminal history.¹⁵ These observations gave rise to reasonable suspicion—that is, "'a particularized and objective basis' for suspecting [Johnson] of criminal activity"¹⁶ in light of the "totality of the circumstances."¹⁷ Therefore, it was not a Fourth Amendment violation for the officer to extend the traffic stop to call for a canine to perform a drug sniff.¹⁸

Johnson's second argument regarding the marijuana violation—that the evidence was insufficient to show intent to distribute—also fails.¹⁹ The District Court relied on the testimony of the state trooper, who said, based on his experience, that the marijuana was worth between $1500 and $1700; that such a quantity was not consistent with personal use; and that scales like the one found in Johnson's SUV are used for distribution. Johnson counters that he admitted to using marijuana for back pain; the marijuana wasnot packaged in distribution quantities; and there was no physical evidence of distribution, such as weapons, cash, or baggies. However, the District Court needed to find possession with intent to distribute only by a preponderance of the evidence.²⁰ Johnson's argument, which amounts to a different interpretation of the evidence, does not show clear error.

Johnson argues that the evidence was also insufficient with respect to the possession with intent to distribute cocaine. He argues that during the stop when the cocaine was found, several people had access to his SUV, and one of them may have put the drugs into it. Once again, his argument amounts to a different interpretation of the evidence. A bystander testified that two people had access to the car, but the police officer testified that no one accessed it. The fact that two witnesses gave conflicting testimony, and the District Court credited one of them, is not clear error.²¹

B.

Johnson challenges the District Court's classifications of his underlying charge of conviction and one of his supervised release violations, namely, the assault. We reviewthese legal issues on a plenary, or de novo, basis.²²

Johnson's underlying counts of conviction included possession of a gun in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A). Johnson argues that the District Court erred in ruling this a Class A felony. There is no letter grade classification in the statute itself.²³ Therefore, the offense is classified by reference to the classification statute, which provides that "[a]n offense that is not specifically classified" is a Class A felony "if the maximum term of imprisonment authorized is . . . life imprisonment."²⁴ Section 924(c)(1)(A) does not provide an explicit maximum; rather, the relevant portion specifies that the offender "shall . . . be...