United States of America v. Christopher Jerome Johnson, a/k/a Shorty Rock

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5047
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHRISTOPHER JEROME JOHNSON, a/k/a Shorty Rock,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cr-00008-D-1)
Submitted: December 27, 2013 Decided: February 6, 2014
Before KING, GREGORY, and DAVIS, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Todd Allen Smith, LAW OFFICE OF TODD ALLEN SMITH, Graham, North
Carolina, for Appellant. Thomas G. Walker, United States
Attorney, Jennifer P. May-Parker, Kristine L. Fritz, Assistant
United States Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Christopher Jerome Johnson appeals the 384-month
sentence imposed following his guilty plea to conspiracy to
distribute and possess with intent to distribute fifty grams or
more of cocaine base and five kilograms or more of cocaine, in
violation of 21 U.S.C. § 846 (2012). On appeal, Johnson
challenges the district court’s denial of his petitions for
writs of habeas corpus ad testificandum, which sought the
testimony of various incarcerated witnesses at his sentencing
hearing. For the reasons that follow, we vacate Johnson’s
sentence and remand for resentencing.
This court reviews the district court’s denial of a
petition for writ of habeas corpus ad testificandum for abuse of
discretion. United States v. Butler, 885 F.2d 195, 199-200 (4th
Cir. 1989). “A district court abuses its discretion when it
acts arbitrarily or irrationally, fails to consider judicially
recognized factors constraining its exercise of discretion,
relies on erroneous factual or legal premises, or commits an
error of law.” United States v. Thompson-Riviere, 561 F.3d 345,
348 (4th Cir. 2009) (internal quotation marks omitted).
In exercising its discretion to grant or deny a
petition for writ of habeas corpus ad testificandum at
sentencing, a district court should consider (1) the possible
effect of the proffered testimony on the Guidelines, (2) “the

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time, expenses, delay, and resources that would have to be
expended to produce the witness,” and (3) the availability of
other alternatives such as “a stipulation, an affidavit,
testimony over the telephone, etc.” United States v. Garrard,
83 F.3d 889, 893 (7th Cir. 1996). The defendant must make a
greater showing of relevancy and necessity for the witness’
testimony as the possible impact of the testimony on his
Guidelines calculations decreases. Id. A petition for writ of
habeas corpus ad testificandum also raises due process concerns,
as a criminal defendant enjoys a due process right to be
sentenced on the basis of accurate information and a concomitant
right to contest the accuracy of the Presentence report (“PSR”)
and ensure reliable sentencing information in some manner. See
United States v. Powell, 650 F.3d 388, 393 (4th Cir. 2011);
United States v. Berry, 553 F.3d 273, 280 (3d Cir. 2009); United
States v. Pless, 982 F.2d 1118, 1127 (7th Cir. 1992); United
States v. Romano, 825 F.2d 725, 728 (2d Cir. 1987).
Here, Johnson filed two separate petitions for writs
of habeas corpus ad testificandum. In the first, Johnson sought
writs for twelve inmates housed in eight prisons in five
different states. The time, delay, expense, and resources
required to produce these witnesses at a sentencing hearing
would be significant. Johnson sought their testimony primarily
to contest the drug weight calculation and leadership role

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enhancement in his PSR, although their statements were not the
primary basis for those calculations. Johnson provided no clear
forecast of these witnesses’ likely testimony — beyond his own
claim that they were lying — and thus did not adequately
demonstrate that they were necessary or relevant to the issues
to be resolved during the sentencing hearing. Additionally, the
court permitted Johnson to submit affidavits from these
witnesses, although he did not do so. Thus, we conclude that
the district court properly exercised its discretion in denying
these writs.
Johnson’s second petition, however, compels a
different analysis. In this petition, Johnson sought writs for
two additional witnesses — Quadrick Everette and Tremaine
Edmonson — for information central to the Guidelines
calculations in the PSR. In denying writs for these witnesses,
the court relied substantially on the reasoning of its prior
order. However, the court erroneously believed that it had
previously denied Johnson’s requests for writs for Everette and
Edmonson, although they were not, in fact, included in the prior
request.
On appeal, Johnson asserts, and the Government does
not dispute, that both of these witnesses were housed in the
same North Carolina prison at the time of his sentencing. This
facility was significantly closer to the sentencing hearing than

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the Government’s witness — Joshua Coley — who was writ into the
sentencing hearing without any analysis or explanation by the
Government or the court. See United States v. Johnson, 726 F.2d
1018, 1021 (4th Cir. 1984) ((“[G]eographical information is
especially appropriate for judicial notice.”). Thus, the
court’s apparent reliance on the expense, delay, and resources
needed to produce Everette and Edmonson at sentencing in denying
Johnson’s request appears arbitrary.
With his second petition, Johnson provided affidavits
from Edmonson and Everette, which provided some forecast of the
testimony they would provide at sentencing. While these
statements were not long or detailed, they were, on their face,
contradictory in material respects to the statements attributed
to Everette and Edmonson in the PSR. Additionally, Everette and
Edmonson possessed information relevant to all of the contested
Guidelines calculations, and their affidavits appeared, at least
in part, to support Johnson’s position on those issues.
Although the court considered the written statements
of Edmonson and Everette in sentencing Johnson, these statements
did not provide a means of assessing witness credibility
equivalent to that accorded the Government’s witnesses. Where,
as here, the Guidelines calculations were hotly contested and
were resolved based largely upon witness credibility, and where
the requested witnesses were so crucial to the disputed issues

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of fact, we are not convinced that the affidavits were adequate
to ensure the reliability of the court’s credibility
determination. For these reasons, we conclude that the district
court abused its discretion in denying writs for Edmonson and
Everette. Because the Government has not alleged, let alone met
its burden to establish, harmless error, the error requires
reversal. See United States v. Dyess, 730 F.3d 354, 366-67 (4th
Cir. 2013) (noting that Government bears burden to establish
harmless error).
Accordingly, we vacate Johnson’s sentence and remand
for resentencing consistent with this opinion. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED AND REMANDED

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