John D. Johnson v. State of IA

1The Honorable Harold D. Vietor, Senior United States District Judge for the
Southern District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
Nos. 99-3881/3882
___________
United States of America, *
*
Appellee, *
* Appeals from the United States
v. * District Court for the Southern
* District of Iowa
Phillip Alexander Johnston, *
*
Appellant. *
___________
Submitted: May 9, 2000
Filed: August 8, 2000
___________
Before BOWMAN, LOKEN, and BYE, Circuit Judge.
___________
BYE, Circuit Judge.
Phillip Alexander Johnston pleaded guilty to a drug conspiracy charge in
violation of 21 U.S.C. §§ 841 and 846, and an attempt to escape from custody charge
in violation of 18 U.S.C. § 751. The district court1 sentenced Johnston, who had two
prior felony drug convictions, to life in prison pursuant to the enhancement provisions

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2Johnston received a five-year sentence on the escape charge, to be served
concurrent to the life sentence on the drug conspiracy charge.
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of 21 U.S.C. § 841(b)(1)(A).2 Johnston challenges, on several grounds, the use of the
two prior convictions to impose a mandatory life sentence. He also claims he was
promised a sentence reduction for cooperating, and that the government's failure to
move for a departure was unconstitutional, irrational, or in bad faith. Finally, he claims
the district court erred by not departing for acceptance of responsibility. We affirm.
BACKGROUND
Between November 1989 and March 1991, Johnston took part in a drug
conspiracy that involved conduct in three states — New Mexico, Missouri, and Iowa.
He was charged in the district of New Mexico with conspiracy to distribute more than
1000 kilograms of marijuana, and more than 5 kilograms of cocaine. He pleaded guilty,
and, in January 1992, was sentenced to 144 months in prison.
In October 1990, during the course of the three-state conspiracy, a search
warrant executed at Johnston's home in Iowa uncovered over 200 pounds of marijuana.
One month later he was charged in Iowa state court with possession of marijuana with
intent to deliver. He did not face that charge, however, until July 1994. While in
federal custody on the conspiracy charge, he was brought back to Iowa to plead guilty
to the marijuana charge, and was sentenced to five years in prison.
Johnston finished his federal sentence in April 1997; he was then transferred to
state custody to complete his state sentence. In August 1997, he was granted early
parole to care for his daughter, who had severe back injuries.

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Johnston was arrested for this current offense on February 24, 1999. He initially
asked the Drug Enforcement Administration (DEA) agents who arrested him if there
was a way to "make this thing go away." After the DEA agents made clear that this
"thing" would not "go away," Johnston agreed to cooperate. The information Johnston
provided in interviews that day led to the arrests of two of his co-conspirators, Michael
Boire and Max Ray.
Johnston claims a DEA agent promised him during those initial interviews that
he would get a sentence reduction for cooperating. The DEA agent recalled only that
he informed Johnston that any cooperation would be conveyed to the prosecuting
attorney, who would determine if it warranted a sentence reduction.
Shortly thereafter, on April 21, 1999, Johnston pleaded guilty to the second
conspiracy charge. The plea was pursuant to a plea agreement in which the
government agreed to move for a downward departure if Johnston provided full and
complete information about his involvement in the conspiracy. Prior to the plea, the
government complied with 21 U.S.C. § 851 by filing an information alleging that
Johnston had two prior felony drug convictions, and was therefore subject to a
mandatory life sentence under 21 U.S.C. § 841(b)(1)(A).
After his plea, but prior to his sentencing, Johnston tried to escape. His daughter
visited him in jail, giving him a legal pad with hacksaw blades hid in the binding.
Johnston used the blades to partially saw through the metal bars and screen on his cell
window before the escape was thwarted.
On several occasions after his guilty plea, the government attempted to interview
Johnston to obtain complete information about his involvement in the drug conspiracy.
For example, the government asked him to provide the names of his five biggest
cocaine customers. Johnston refused to provide any additional information.

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Johnston filed an objection to the government's § 851 notice to use the prior
convictions for enhancement purposes. On August 13, 1999, the district court held a
hearing to address the § 851 objection. Johnston admitted that he was the person
convicted in the prior New Mexico federal and Iowa state court proceedings. Johnston
argued, however, that (1) the New Mexico and Iowa convictions arose out of a single
conspiracy, (2) the Iowa state court conviction was based on an underlying substantive
act that was an object of the single conspiracy, and (3) therefore, the use of both prior
convictions for enhancement purposes violated the Double Jeopardy Clause. The
district court concluded that there was "no merit" to Johnston's double jeopardy
objection.
Johnston also filed a motion to compel the government to move for a substantial
assistance departure, based on his initial cooperation on the day of arrest. On August
26, 1999, the district court held an evidentiary hearing to allow both parties to submit
evidence regarding the events on the day of arrest. Johnston admitted during the
hearing that he had not given complete and full information subsequent to his plea, but
claimed that a promise was made on the day of his arrest that entitled him to a
departure for his initial cooperation. The district court found that Johnston had not
been promised a reduction on the day of his arrest, and that the government's refusal
to file a substantial assistance motion was not irrational or in bad faith.
Finally, at the sentencing hearing on October 6, 1999, Johnston argued that he
was entitled to a downward departure for acceptance of responsibility because he had
immediately assisted authorities, and pleaded guilty soon after his arrest. Because of
Johnston's escape attempt, the district court declined to grant a downward departure
for acceptance of responsibility.

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DISCUSSION
I. The Prior Convictions
Johnston argues that the district court erred in considering his two prior drug
convictions to impose a mandatory life sentence pursuant to 21 U.S.C. § 841(b)(1)(A).
Because resolution of this claim requires us to interpret the statute, we review de novo
the district court's use of the two prior convictions for enhancement purposes. See
United States v. Gray, 152 F.3d 816, 820 (8th Cir. 1998), cert. denied, 525 U.S. 1169
(1999).
A. Adequacy of the § 851 Hearing
Johnston first contends that there was an inadequate factual inquiry made
regarding the "relatedness" of the two prior drug convictions at the § 851 hearing.
Johnston argues a remand is required to hold an adequate hearing. We disagree.
A district court is not required to enter findings of fact or conclusions of law
regarding a defendant's objection to the government's § 851 notice unless specifically
requested. See 21 U.S.C. § 851(c)(1) ("At the request of either party, the court shall
enter findings of fact and conclusions of law"). Johnston does not identify where in the
record he requested the district court to make a finding of fact regarding the
"relatedness" of his two prior convictions.
Our review of the § 851 hearing transcript indicates that Johnston couched his
"relatedness" objection only in the context of a double jeopardy challenge. The
"relatedness" argument is one of statutory interpretation, however, not a constitutional
double jeopardy issue. See, e.g., Gray, 152 F.3d at 821 (holding that the structure of
§ 841(b) indicates its purpose is to target recidivism, and therefore when prior
convictions result from a single criminal episode they should be treated as a single
conviction for enhancement purposes); United States v. Blackwood, 913 F.2d 139,

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3This "relatedness" challenge to the prior convictions is not, in a strict sense, the
same as the double jeopardy objection Johnston made before the district court.
Therefore, the government could have argued on appeal that Johnston waived it. See
21 U.S.C. § 851(c)(2) ("Any challenge to a prior conviction, not raised by response to
the information before an increased sentence is imposed in reliance thereon, shall be
waived unless good cause be shown for failure to make a timely challenge.") Because
the government did not argue that the "relatedness" challenge was waived, we choose
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145-46 (4th Cir. 1990) (interpreting § 841(b)'s reference to prior convictions as
meaning "separate criminal episodes, not separate convictions arising out of a single
transaction"). The district court held that there was "no merit" to the double jeopardy
objection. That finding was adequate to address Johnston's objection in the context in
which it was raised.
In addition, a remand for specific fact-finding is generally unnecessary when the
record is clearly sufficient to permit meaningful review on appeal. See United States
v. Patterson, 946 F.2d 1371, 1372 (8th Cir. 1991). The record before us contains
sufficient information regarding the relevant facts of the New Mexico and Iowa
convictions for us to determine whether or not the prior convictions result from a single
criminal episode for enhancement purposes under § 841(b). Therefore, no remand is
necessary.
B. The "Relatedness" of the Prior Convictions
Johnston next contends that the conduct which led to the Iowa state conviction
was part of the same criminal episode that led to his New Mexico federal conviction.
The Iowa charge was for possession of marijuana with intent to distribute, but also
included an allegation of conspiracy. Thus, Johnston claims that because the state
marijuana conspiracy occurred during the federal conspiracy (which included moving
the marijuana from New Mexico to Iowa), both prior convictions resulted from a single
episode of criminal activity and should count as only one conviction.3

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to address it on the merits.
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Johnston relies primarily on United States v. Blackwood, 913 F.2d 139 (4th Cir.
1990). In Blackwood the Fourth Circuit addressed two separate North Carolina state
court convictions arising from conduct that occurred on the same day. Blackwood was
arrested while driving a pickup truck carrying a large quantity of marijuana. Two hours
later his hotel room was searched, and another large quantity of marijuana was
discovered. He was charged and convicted on separate indictments for the marijuana
in the pickup, and the marijuana in the hotel. See Blackwood, 913 F.2d at 144-45. The
Fourth Circuit held that § 841(b)'s "increased punishments . . . turn on criminal episodes
that occurred at distinct times." Id. at 147 (emphasis in original). The court concluded
that Blackwood's two separate convictions stemmed from a single criminal episode on
the same day, and thus only counted as one prior conviction for enhancement purposes
under § 841(b). See id.
We addressed the relatedness of prior convictions for § 841(b) enhancement
purposes in United States v. Gray, 152 F.3d 816 (8th Cir. 1998). Gray involved prior
convictions for two separate controlled buys made to the same confidential informant,
taking place at the same hotel room, and occurring one day apart. See Gray, 152 F.3d
at 821. We held that the convictions constituted separate criminal episodes for
enhancement purposes under § 841(b), stating that a separate criminal episode may be
"an incident that is part of a series, but forms a separate unit within the whole.
Although related to the entire course of events, an episode is a punctuated occurrence
with a limited duration." Id. at 822 (citing United States v. Hughes, 924 F.2d 1354,
1361 (6th Cir. 1991)).
Our resolution of this case is controlled by our decision in Gray. The conduct
which resulted in the Iowa state court conviction was "an incident that [was] part of a
series." Id. Although related to the entire course of events in the ongoing conspiracy
charged in New Mexico, the Iowa possession charge "form[ed] a separate unit within

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the whole." Id. The New Mexico conviction stemmed from conduct spanning three
calendar years, while the Iowa conviction stemmed from conduct on a single day, and
thus was a "punctuated occurrence with a limited duration." Id.
We therefore conclude that the Iowa conviction arose from a separate criminal episode
for enhancement purposes under § 841(b).
C. Right to Notice of § 841(b)'s Enhancement Provisions at the Time of
a Prior Conviction
Johnston contends that his prior convictions cannot be used for enhancement
purposes because neither the New Mexico federal judge, nor the Iowa state court
judge, notified him prior to his pleas in those matters that the convictions might later
subject him to a mandatory life sentence under § 841(b). That contention is without
merit. A court is not required to inform a defendant of the possibility of being
sentenced more severely as a recidivist. See United States v. Fountain, 83 F.3d 946,
950 (8th Cir. 1996).
Section 841(b) itself gives a defendant clear notice and fair warning of the
consequences attached to a third felony drug offense. Johnston had notice of the
enhancement provisions, since they were in effect at the time he committed the instant
offense. Cf. United States v. Washington, 109 F.3d 335, 338 (7th Cir. 1997) (holding
that 18 U.S.C. § 3559, the "three strikes" law, gave defendant fair warning of
consequences attached to committing new violent offense after being convicted of two
or more violent offenses, since § 3559 was in effect at the time defendant committed
the offenses that subjected him to life imprisonment). A court's failure to advise a
defendant of § 841(b)'s enhancement provisions, at the time of a plea to a prior felony

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4We also note that Congress did not limit the prior felony convictions that could
trigger a life sentence to those occurring after § 841(b)'s enhancements provisions
became effective in 1988. See, e.g., United States v. Hudacek, 24 F.3d 143, 146 (11th
Cir. 1994) (holding that § 841(b)'s enhancement provisions were triggered by
conviction that occurred prior to 1988). Johnston's argument, if accepted, would
effectively preclude all pre-1988 convictions from being used for enhancement
purposes. It was, of course, impossible for courts to give defendants notice of the
enhancement provisions before they existed. Since Congress intended pre-1988
convictions to trigger the enhancement provisions, post-1988 convictions also clearly
trigger the enhancement provisions despite the fact that a defendant was not notified,
at the time, that the conviction might later subject him to life in prison.
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offense, does not prohibit the prior conviction from being used to trigger a mandatory
life sentence under § 841(b).4
II. Substantial Assistance
Johnston also contends that the government promised him a sentence reduction
on the day of his arrest. He claims that his initial cooperation entitled him to have the
government file a substantial assistance motion pursuant to 18 U.S.C. § 3553(e) and
U.S.S.G. § 5K1.1.
The district court held a hearing on Johnston's motion to compel the government
to file a substantial assistance motion, at which it found that the government had not
promised Johnston a sentence reduction on the day of his arrest. Our review of this
issue involves two steps. We first must review that finding of fact for clear error. See
United States v. Johnson, 169 F.3d 1092, 1098 (8th Cir. 1999). Second, we must
determine whether the government's refusal to make a substantial assistance motion
(pursuant to whatever agreement(s) it reached with Johnston) was in bad faith,
irrational, or based on an unconstitutional motive. See United States v. Licona-Lopez,
163 F.3d 1040, 1042 (8th Cir. 1999). Resolution of that issue requires us to review de

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novo the district court's interpretation and enforcement of the plea agreement. See
United States v. Wilkerson, 179 F.3d 1083, 1085 (8th Cir. 1999).
At the hearing to determine whether Johnston was promised a sentence reduction
during his post-arrest interviews, the DEA agent testified that he did not promise
Johnston a sentence reduction. Rather, the DEA agent agreed only to convey details
of Johnston's cooperation to the prosecutor, who would then decide whether or not to
make a motion for a sentence reduction. A second officer who was present during the
interviews also testified that he did not hear Johnston promise a sentence reduction.
Johnston offered evidence that a promise had, in fact, been made on the day of his
arrest. The district court ultimately found that no promise was made.
The district court obviously found the DEA agent to be more credible than
Johnston. We are "particularly hesitant to find clear error in the district court 's findings
of fact where those findings are based on determinations of witness credibility." United
States v. Padilla-Pena, 129 F.3d 457, 467 (8th Cir. 1997). Johnston has failed to show
that the district court clearly erred in determining that no promise was made on the day
of his arrest.
The district court also determined that the government's failure to file a motion
for downward departure was not irrational, in bad faith, or based on an unconstitutional
motive. Since we find no factual error in the district court's determination that Johnston
was not promised a sentence reduction on the day of his arrest, we look solely to the
terms of his subsequent plea agreement to determine whether the government should
have filed a motion.
Johnston relies on United States v. Anzalone, 148 F.3d 940, vacated and reh'g
en banc granted, 148 F.3d 940, reinstated and reh'g en banc denied, 161 F.3d 1125 (8th
Cir. 1998), to contend that the government had an obligation to (at least) make a motion
based on his early cooperation that resulted in the arrests of two co-conspirators.

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Johnston admits that he subsequently failed to cooperate, but he claims that the
government's remedy for that failure was to alert the district court of that fact after
making the motion, as grounds to "preclude or severely restrict any downward
departure relief." Anzalone, 148 F.3d at 941-42.
Anzalone, however, involved a case where the government's refusal to file a
substantial assistance motion was based on reasons other than the nature of the
substantial assistance, i.e., the fact that the defendant had recently used and possessed
controlled substances in violation of his plea agreement. See id. at 941. Johnston's
situation is different from Anzalone, and more like the situation addressed in
Wilkerson, where we upheld the government's refusal "based on its conclusion that
Wilkerson had not met his duty under the plea agreement to continue to cooperate and
to provide substantial assistance." Wilkerson, 179 F.3d at 1086 (emphasis added).
Johnston agreed "to fully cooperate with the government in its investigation . .
. and [to] provide complete and truthful information to the attorneys and law
enforcement officers of the government." Plea Agreement at ¶ 13 (emphasis added).
The government promised to make a substantial assistance motion only "[s]hould the
defendant fully comply with all of his obligations under this plea agreement." Id. at ¶
21 (emphasis added).
Johnston failed to cooperate fully with the government subsequent to entering
the plea agreement. After signing the plea agreement, Johnston was given multiple
opportunities to provide complete information about his involvement. He repeatedly
refused to provide any additional information beyond what he offered during his initial
interviews at the time of his arrest.
Under these circumstances, it is clear that the government's decision not to file
a § 3553(e) motion was based on its evaluation of the nature and quality of Johnston's
assistance. This case is distinct from Anzalone, where the refusal to file the motion

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5Having determined that the mandatory life sentence was proper, it is
unnecessary for us to address Johnston's claim that the district court erred by not
departing downward for acceptance of responsibility. See U.S.S.G. § 5G1.1(b)
(requiring imposition of a statutorily required minimum sentence when greater than the
otherwise applicable guideline range); United States v. Schaffer, 110 F.3d 530, 534-35
(8th Cir. 1997) (holding that district courts are not authorized to depart below the
mandatory minimum for any reason (including acceptance of responsibility) except
substantial assistance pursuant to 18 U.S.C. § 3553(e)).
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was based on reasons unrelated to the nature of the defendant's assistance. On this
record, Johnston has failed to show that the government's reason for not filing a motion
was irrational, in bad faith, or based on an unconstitutional motive.
We affirm the mandatory life sentence imposed by the district court.5
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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