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United States v. Johnson

United States Court of Appeals, Tenth Circuit

December 22, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KAREN ANTOINETTE JOHNSON, Defendant-Appellant.

          APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS (D.C. NO. 5:13-CR-40060-DDC-14)

          Christopher M. Joseph, Joseph, Hollander & Craft LLC, Topeka, Kansas, for Appellant.

          James A. Brown, Assistant United States Attorney (Thomas A. Beall, United States Attorney, with him on the brief), Topeka, Kansas, for Appellee.

          Before BACHARACH, McKAY, and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

          I. INTRODUCTION

         A jury convicted Karen Johnson of conspiring to distribute cocaine base. See 21 U.S.C. §§ 841, 846. Johnson asserts the district court violated the Sixth Amendment when it imposed on her the 120-month minimum sentence mandated in 21 U.S.C. § 841(b)(1)(A)(iii) without submitting the drug-quantity issue to the jury for determination under the beyond-a-reasonable doubt standard. Cf. Alleyne v. United States, 133 S.Ct. 2151, 2155 (2013). Assuming she prevails on her Sixth Amendment claim, Johnson argues a separate drug-quantity finding made by the district court, a finding made solely for purposes of calculating a sentencing range under the Sentencing Guidelines, is not supported by sufficient evidence. Finally, she contends her conviction must be set aside because the district court used an improper evidentiary standard in allowing the government to adduce at trial intercepted cell phone communications. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, this court rejects Johnson's challenges to her conviction and to the drug-quantity determination made by the district court for purposes of the Sentencing Guidelines. The district court did, however, plainly err in applying the mandatory minimum set out in § 841(b)(1)(A)(iii) without submitting the quantity issue to the jury for resolution under the beyond-a-reasonable-doubt standard. Accordingly, the district court is affirmed in part and reversed in part and the matter is remanded to the district court to vacate Johnson's sentence and resentence her without regard to the mandatory minimum set out in § 841(b)(1)(A)(iii).

         II. ANALYSIS

         A. Alleyne Error

         1. Background

         At the jury instruction conference, Johnson asked the district court to submit the issue of drug-quantity to the jury as part of Instruction 12, an elements instruction.[1] The district court refused this request and, instead, submitted the matter of drug quantity to the jury in the form of a special verdict question, Question 2. Of particular note, Question 2 did not require that the jury make its drug-quantity finding by using the beyond-a-reasonable-doubt standard. The jury found Johnson guilty and decided the conspiracy involved at least 280 grams of cocaine base. Thereafter, over her objection, the district court sentenced Johnson to a minimum mandatory term of 120 months' imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii). Johnson asserts the district court violated her Sixth Amendment rights when it sentenced her to a mandatory minimum sentence on the basis of a jury finding that was not made under the beyond-a-reasonable-doubt standard. See Alleyne, 133 S.Ct. at 2155.

         2. Standard of Review

         In its brief on appeal, the government asserts Johnson's claim is not preserved for appellate review because she did not object to Question 2 on the ground it was inconsistent with Alleyne before the case was submitted to the jury. This court need not decide whether Johnson's objections below preserved her Alleyne claim for de novo review because she is entitled to relief even under the rigorous plain error standard applicable to unpreserved claims of constitutional error.[2]

Under the plain error standard, a defendant must establish
(1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings. Plain error affects a defendant's substantial rights if there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. A ...

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