United States of America v. James E. Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3971
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J AMES E. J OHNSON ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 97 CR 211—Charles N. Clevert, Jr., Judge.
____________
A RGUED J UNE 11, 2003—DECIDED J ULY 9, 2003
____________
Before POSNER , C OFFEY and R IPPLE , Circuit Judges.
P ER C URIAM . A jury found James Johnson guilty of
conspiracy to distribute more than five kilograms of co-
caine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. His
first sentence was vacated and, at resentencing, the dis-
trict court imposed a term of 210 months’ imprisonment
and five years’ supervised release. Mr. Johnson now ap-
peals this sentence. He argues that the district court en-
hanced the sentence in violation of Apprendi v. New Jersey,
530 U.S. 466 (2000), when it calculated the drug quantity
involved in the offense without submitting that issue to
a jury. Mr. Johnson acknowledges our precedent holding
that Apprendi does not affect the application of the Sen-

-- 1 of 7 --

2 No. 02-3971
tencing Guidelines as long as the sentence is within the
statutory maximum. Nevertheless, he requests that we
reconsider this issue in light of the Supreme Court’s deci-
sion in Ring v. Arizona, 536 U.S. 584 (2002). For the rea-
sons set forth in the following opinion, we affirm the
judgment of the district court.
I
BACKGROUND
The facts in this case are not at issue; we set forth a
plenary rendition in our earlier decision in United States
v. Johnson, 200 F.3d 529, 531-32 (7th Cir. 2000). We shall
summarize here.
Mr. Johnson distributed cocaine for many years, begin-
ning around 1979. From 1995 until his arrest in November
1997, he obtained cocaine from Michael Blake and Gordon
Hagenkord, both of whom had received the cocaine from
Candelario Nevarez-Diaz. When cocaine was available,
Blake and Hagenkord delivered it to Mr. Johnson; on those
occasions (every few weeks), Mr. Johnson paid them for
previous deliveries. Most deliveries involved between
one and four kilograms of cocaine. Although Blake was
arrested in July 1997, Mr. Johnson continued thereafter to
obtain cocaine from Hagenkord and another associate.
After his arrest, Blake agreed to cooperate with the
government and record several conversations with Mr.
Johnson about buying cocaine. At one meeting, Mr. Johnson
provided Blake $5,000 toward the purchase of a kilogram
or more of cocaine. Through Blake’s cooperation, Mr.
Johnson was arrested in November 1997 in connection with
the drug conspiracy.
At his trial in October 1998, Mr. Johnson testified that he
was not involved in the conspiracy. Blake, however, testi-

-- 2 of 7 --

No. 02-3971 3
fied as the government’s primary witness, and audio
tapes of his conversations with Mr. Johnson were admit-
ted into evidence. Id. These conversations corroborated
Blake’s testimony that he fronted cocaine to Mr. Johnson
and that Mr. Johnson willingly participated in the conspir-
acy. Blake specifically testified that he supplied Mr. John-
son with between three and four kilograms of cocaine
every ten to twelve days from 1995 until his arrest and
that Mr. Johnson sold the cocaine on credit for approxi-
mately $27,000 per kilogram. Blake estimated that between
January 1, 1996 and July 24, 1997, he supplied Mr. Johnson
with between thirty-five and forty-five kilograms of co-
caine. Id. Similarly, the government estimated, based on
the recollection of witnesses at trial, that Mr. Johnson
distributed approximately two kilograms of cocaine a
month for twenty-one months, a total of forty-two kilo-
grams. At the conclusion of the trial, the jury returned
a verdict of guilty on one count of conspiracy to dis-
tribute and possession with intent to distribute cocaine.
Mr. Johnson was sentenced originally in 1999. The dis-
trict court determined that he was responsible for 42
kilograms of cocaine. After finding that Mr. Johnson
had been convicted of at least three controlled substance
offenses in the past, the court applied the Armed Career
Criminal Act. The court sentenced him to 360 months’
imprisonment. We affirmed that judgment. See Johnson,
200 F.3d at 531. One of Mr. Johnson’s prior convictions
was later vacated, however, and Mr. Johnson filed a motion
under 28 U.S.C. § 2255 seeking resentencing because
the Armed Career Criminal Act no longer applied. At
resentencing in October 2002, the district court calculated
an offense level of 34, a criminal history category of IV,
and a guideline imprisonment range of 210 to 262
months. The court then sentenced him to 210 months’ im-
prisonment and five years’ supervised release.

-- 3 of 7 --

4 No. 02-3971
II
DISCUSSION
The Supreme Court’s decision in Apprendi establishes
the general rule that “any fact that increases the penalty
for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a rea-
sonable doubt.” 530 U.S. at 490. However, a particular
sentence does not implicate Apprendi “unless it exceeds
a default statutory maximum.” United States v. Knox, 301
F.3d 616, 620 (7th Cir. 2002). The maximum sentence
permitted for distributing more than five grams of cocaine
is life in prison. 21 U.S.C. § 841(b)(1)(A). Because Mr.
Johnson’s sentence—210 months’ imprisonment and five
years’ supervised release—is less than the statutory maxi-
mum prescribed by the statute of conviction, Apprendi
does not apply. United States v. De La Torre, 327 F.3d 605,
611 (7th Cir. 2003); United States v. Holman, 314 F.3d 837, 846
(7th Cir. 2002), cert. denied, 123 S. Ct. 2238 (2003); United
States v. Brumfield, 301 F.3d 724, 734-35 (7th Cir.), cert.
denied, 123 S. Ct. 681 (2002).
Mr. Johnson nevertheless argues that his sentence vio-
lates Apprendi because the district court rather than a jury
determined the quantity of cocaine and that determina-
tion increased his recommended sentence under the Sen-
tencing Guidelines. Mr. Johnson concedes that we have
rejected this argument before but submits that the Su-
preme Court’s recent decision in Ring requires us to re-
consider that position. In Ring, the Court held that, under
Apprendi, additional facts increasing a statutory maximum
punishment from life imprisonment to death must be
submitted to the jury and proven beyond a reasonable
doubt. 536 U.S. at 609. Mr. Johnson does not argue that
Ring’s precise holding requires us to reconsider our ap-
plication of Apprendi; rather, he contends that the Court’s

-- 4 of 7 --

No. 02-3971 5
1 See, e.g., Talbott v. State of Indiana, 226 F.3d 866, 869 (7th Cir.
2000); United States v. Davis, 329 F.3d 1250, 1254-55 (11th Cir.
2003); United States v. Goodine, 326 F.3d 26, 32-34 (1st Cir. 2003);
United States v. Fields, 325 F.3d 286, 288-89 (D.C. Cir. 2003); United
States v. Chorin, 322 F.3d 274, 278-79 (3d Cir. 2003); United States
v. Murillo-Iniguez, 318 F.3d 709, 713-14 (6th Cir. 2003); United
States v. Piggie, 316 F.3d 789, 791-92 (8th Cir. 2003); United States
v. Shwayder, 312 F.3d 1109, 1122 (9th Cir. 2002); United States v.
Luciano, 311 F.3d 146, 149-53 (2d Cir. 2002); United States v.
Cannady, 283 F.3d 641, 649 (4th Cir.), cert. denied, 123 S. Ct.
38 (2002); United States v. Randle, 304 F.3d 373, 378 (5th
Cir. 2002), cert. denied, 123 S. Ct. 1748 (2003); United States v.
(continued...)
discussion of the Sentencing Guidelines took a “functional
approach” and analyzed the guidelines as “ ‘laws’ that
prescribe the maximum authorized sentence within the
meaning of Apprendi, even though those adjustments are
not expressed as elements of the criminal offense.” Appel-
lant’s Br. at 11. He thus contends that the guidelines
are sentencing laws that “must be viewed as setting the
maximum prescribed sentence for purposes of the con-
stitutional principle in Apprendi.” Id. at 14. Accordingly,
Mr. Johnson concludes, we should reconsider our applica-
tion of Apprendi and determine that “the principle
Apprendi established should apply to the Guidelines.” Id.
at 15.
But as the government notes, both the Supreme Court
and our sister circuits have repeatedly affirmed that the
Guidelines should be treated as rules rather than as
statutes. Consequently, facts affecting sentencing deter-
minations need not be determined by a jury as long as the
sentence imposed does not exceed the maximum penalty
set forth in the statute. 1 Ring does not suggest a contrary

-- 5 of 7 --

6 No. 02-3971
1 (...continued)
Jackson, 240 F.3d 1245, 1249 (10th Cir.), cert. denied, 534 U.S. 847
(2001).
conclusion. Indeed, since the Supreme Court’s decision in
Ring, we have rejected arguments that facts raising the
guidelines maximum should be subject to Apprendi. See,
e.g., De La Torre, 327 F.3d at 611 (“Apprendi . . . does not
affect the Guideline calculations that determine the . . . total
sentence of imprisonment.”); Knox, 301 F.3d at 620 (chang-
ing the offense level does not impact the statutory
penalty and so does not implicate Apprendi); Brumfield,
301 F.3d at 734-35 (“ ‘Apprendi does not create [for the
defendant] a right to jury determination of the drug quan-
tity.’ ”) (quoting United States v. Parker, 245 F.3d 974, 977
(7th Cir. 2001)).
Because Mr. Johnson’s sentence did not exceed the
statutory maximum penalty for his crime, Apprendi does
not apply to the district court’s determination of the
amount of cocaine he distributed. Accordingly, the district
court appropriately determined drug quantity based on
a preponderance of the evidence. United States v. Martinez,
301 F.3d 860, 865 (7th Cir. 2002), cert. denied, 123 S. Ct. 923
(2003). Mr. Johnson does not argue that the evidence was
insufficient under that standard. See Holman v. Indiana, 211
F.3d 399, 406 (7th Cir. 2000) (arguments not raised on
appeal are waived). Indeed, the record supports the
district court’s findings. See United States v. Anderson, 259
F.3d 853, 858 (7th Cir. 2001) (district court’s sentencing
determinations given great deference).
Conclusion
Mr. Johnson’s sentence did not exceed the statutory
maximum for his crime, and thus Apprendi does not

-- 6 of 7 --

No. 02-3971 7
apply. Mr. Johnson argues to the contrary, but established
precedent in this circuit requires affirmance, and Ring
does not compel a different result. For the foregoing rea-
sons, we affirm the judgment of the district court.
A FFIRMED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-9-03

-- 7 of 7 --