Eleventh Circuit Court of Appeals - Published Opinions

Thursday, November 19, 2020

Johnson: No Plain Error in Refusing to Move for Third Acceptance Point Due to Pre-Plea Obstruction

In United States v. Johnson, No. 17-15259 (Nov. 19, 2020) (Julie Carnes, Marcus, Kelly (CA10)), the Court affirmed the defendant’s sentence.

First, the Court found no clear error in holding the defendant accountable for more than 400 grams of marijuana for purposes of USSG 2D1.1.  To the extent the district court relied on hearsay about the weight of marijuana per shipment, that hearsay was sufficiently reliable.

Second, the Court found no clear error in applying an obstruction enhancement where the defendant used discovery from the case to threaten potential witnesses.  The Court rejected his argument that the enhancement applied only to conduct attempting to hinder an investigation.  And it did not matter that the threats were not communicated directly to the witnesses.

Third, the Court found no clear error in applying an enhancement because he committed the offense as part of a pattern of criminal conduct engaged in as a livelihood.  The defendant made more money from the drug operation than he did from any legitimate employment, and he earned more than minimum wage.  The Court rejected the defendant’s argument that the livelihood enhancement did not apply whenever the defendant had some legitimate employment.

Fourth, the district court did not plainly error by sua sponte denying the defendant a third point off for acceptance of responsibility.  The government failed to move for the third point because the defendant obstructed justice before making his guilty plea.  The Court engaged in a lengthy discussion of the case law about when the government may refuse to move for a third point—whether it may be withheld only where the acceptance is untimely, or whether it may also be withheld where the defendant engages in conduct inconsistent with USSG 3E1.1.  Although it was clear that the government cannot withhold due to a defendant’s refusal to waive his appellate rights, little else was clear in this Circuit, and there was no consensus in other circuits.  Accordingly, the defendant could not show plain error.

Finally, the Court found that the defendant’s low-end 151-month sentence was not substantively unreasonable.  The Court rejected the defendant’s unwarranted disparity argument, finding that his co-defendants were not similarly situated.