United States v. Johnson

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-10887
Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

DONALD RAY JOHNSON,

Defendant-Appellant

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:19-CR-15-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM:
*

Donald Ray Johnson appeals the 105-month sentence imposed following
his guilty plea to possession of cocaine base with intent to distribute. When
calculating his base offense level, the district court held Johnson responsible
for all of the currency found in the residence from which he sold cocaine base
on the grounds of relevant conduct under U.S.S.G. § 1B1.3. Johnson argues
that the district court failed to make legally sufficient factual findings to

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5
TH
CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
FILED
July 14, 2020

Lyle W. Cayce
Clerk
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No. 19-10887
2
support its relevant conduct determination. Our review is de novo. See United
States v. Zapata-Lara, 615 F.3d 388, 390 (5th Cir. 2010).
In calculating a defendant’s base offense level, the district court may
consider drug quantities not specified in the count of conviction if they are part
of the defendant’s “relevant conduct,” as defined by § 1B1.3. United States v.
Wall, 180 F.3d 641, 644-45 (5th Cir. 1999). A defendant is accountable for all
drug quantities with which he was directly involved. § 1B1.3(a)(1)(A)
& comment. (n.3(D)). In cases of “jointly undertaken criminal activity,”
relevant conduct may expand beyond the offense of conviction to include all
drug quantities involved in transactions carried out by third-party
participants. See § 1B1.3(a)(1)(B), comment. (n.3(D)); United States v.
Evbuomwan, 992 F.2d 70, 72 (5th Cir. 1993).
To hold Johnson indirectly accountable under § 1B1.3 for third-party
drug sales, the district court was required to find the following: (1) Johnson
agreed to participate jointly in drug sales with a third party, (2) the drug sales
at issue were within the scope of that joint activity, and (3) Johnson could have
reasonably foreseen the quantity of drugs represented by those sales in
connection with the joint undertaking. See § 1B1.3(a)(1)(B), comment. (n.3(B)-
(D)); United States v. Smith, 13 F.3d 860, 864-65 (5th Cir. 1994). The district
court did not make an express finding whether Johnson was directly or
indirectly responsible for the disputed currency. Additionally, the district
court’s rationale for its relevant conduct determination is not implicit in its
adoption of the Addendum to the Presentence Report, which made none of the
factual findings required to hold Johnson accountable for jointly undertaken
criminal activity. See Smith, 13 F.3d at 864-65; Evbuomwan, 992 F.2d at 74.
Because the district court’s reasoning is not apparent from the record, we
cannot speculate as to the rationale for its relevant conduct determination. See
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Zapata-Lara, 615 F.3d at 391; United States v. Hooten, 942 F.2d 878, 882
(5th Cir. 1991).
We therefore VACATE the sentence and REMAND for the district court
to determine the amount of currency for which Johnson was directly or
indirectly responsible under § 1B1.3 and to provide the factual findings
required to support its decision. See F
ED. R. CRIM. P. 32(i)(3)(B);
§ 1B1.3(a)(1)(A), (B) & comment. (n.3); Zapata-Lara, 615 F.3d at 391.
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