United States v. Johnson

1

United States of America, Plaintiff-Appellee, v. Delewis Johnson, IV; Roy Lee Jones, Jr., Defendants-Appellants.

No. 22-30119

United States Court of Appeals, Fifth Circuit

March 7, 2023

Appeal from the United States District Court for the Western District of Louisiana USDC No. 3:20-CR-156-1

Before JONES, DENNIS, and WILLETT, Circuit Judges.

PER CURIAM ^[*]

Delewis Johnson and Roy Lee Jones were convicted of conspiracy to possess with intent to distribute 50 grams or more of methamphetamine or 500 grams or more of a mixture and substance containing a detectable amount of methamphetamine. See 21 U.S.C. §§ 846, 841. Johnson was also convicted of distributing methamphetamine. See 21 U.S.C. § 841. Both challenge the sufficiency of the evidence for their convictions on appeal. Jones also challenges two sentencing enhancements applied by the district court. We AFFIRM.

Appellate courts affirm on the sufficiency of the evidence if "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 99 S.Ct. 2781, 2789 (1979).

Both defendants challenge their convictions because, they say, the evidence did not demonstrate they trafficked methamphetamine as opposed to some other controlled substance. Yet even if that were indisputably true, it would require resentencing rather than acquittal. The relevant statute prohibits trafficking in any "controlled substance." 21 U.S.C. § 841(a)(1). The specific kind of controlled substance is "not a formal element of the conspiracy offense." See United States v. Daniels, 723 F.3d 562, 573 (5th Cir. 2013). Therefore, the defendants cannot challenge their convictions on these grounds but merely their sentences. Id.

Moreover there is ample evidence that both defendants trafficked in methamphetamine. First, take Jones. Two street-level distributors testified that "Dee" (Johnson's alias) supplied Jones with methamphetamine, who in turn supplied those lower on the totem pole. See United States v. Perry, 35 F.4th 293, 317 (5th Cir. 2022) ("This Court has long held that a defendant may be convicted on the uncorroborated testimony of a coconspirator who has accepted a plea bargain, so long as the coconspirator's testimony is not incredible.") (citations and internal quotation marks omitted). On an intercepted call, Jones told a coconspirator named Harris that Jones had "two" for him. In the following days, Harris let two other coconspirators know that Harris now had "meth" or "CDs" (slang the group used for methamphetamine).

On another call, Jones discussed paying "Dee" for "zips"-a term that a coconspirator testified referred to methamphetamine.

Jones makes essentially two arguments as to why this evidence is insufficient; both fail. First, he contends that the testimony from his coconspirators is incredible because, according to a government expert, conspirators at Jones's level in the distribution chain do not interact with street-level distributors. Second, he avers that his intercepted statements were vague and could have referred to marijuana rather than methamphetamine. But neither argument demonstrates that no rational trier of fact could have found Jones guilty. At this stage, the "evidence need not exclude every reasonable hypothesis of innocence or be wholly inconsistent with every conclusion except that of guilt, and this court will accept all credibility choices that tend to support the verdict." United States v. Stevenson, 126 F.3d 662, 664 (5th Cir. 1997). The jury could have rationally concluded that the expert's testimony was inapplicable to Jones's situation and rejected alternative interpretations of his ambiguous statements.

The evidence against Johnson is also sufficient. His counsel conceded that Johnson was involved in the marijuana trade with Jones and went by the name "Dee." Multiple members of the conspiracy had heard that Jones got his methamphetamine from "Dee." Jones acknowledged that his supply came from "Dee" on an intercepted call. On another call, Johnson offered to sell "broccoli" (which the prosecution interpreted as a reference to marijuana) or "the other one" to a police informant. When the informant ordered "the other one," Johnson sent a shipment to a third party's address. That shipment was stolen before the police could confiscate it, but shortly thereafter a person associated with the address was arrested with methamphetamine in his possession. The informant then placed a second order for "another one" with Johnson. Soon after, the informant received tracking information for the package which was intercepted and found to contain a pound of methamphetamine. Like Jones, Johnson attempts to characterize the evidence as only supporting marijuana trafficking. He also denies that he sent the tracking number for the second package. But, at best, his counter-interpretation of the evidence merely establishes that a "reasonable hypothesis of innocence" is possible-not that the jury was irrational for rejecting that hypothesis. Stevenson, 126 F.3d at 664. ...