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United States v. Johnson

May 14, 2002

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JESSE J. JOHNSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 00 CR 142-1--Elaine E. Bucklo, Judge.

Before Flaum, Chief Judge, and Posner and Rovner, Circuit Judges.

The opinion of the court was delivered by: Flaum, Chief Judge

Argued April 5, 2002

A federal grand jury indicted Defendant-Appellant Jesse J. Johnson for possession of crack cocaine with intent to distribute in violation of 21 U.S.C. sec. 841(a)(1), possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. sec. 924(c)(1), and possession of a firearm by a convicted felon in violation of 18 U.S.C. sec. 922(g)(1). Johnson initially pled not guilty and moved to quash a search warrant that led to the evidence against him. After the district court denied the motion to quash, Johnson entered into an agreement with the government, pled guilty to Count I of the indictment (possession with intent to distribute), and reserved the right to appeal the district court's denial of his motion to quash. On appeal, Johnson challenges that ruling, as well as several sentencing determinations. For the reasons stated herein, we affirm.

I. Background

On February 15, 2000, Officer David Jackson of the Joliet Police Department appeared before Associate Judge Daniel Rozak of the Will County Circuit Court to apply for a warrant to search Johnson's person, residence and automobile. In his application, Officer Jackson recited his experience as a police officer and described the general nature of his job responsibilities with the Metropolitan Area Narcotics Squad ("MANS"). Officer Jackson also included information obtained from a confidential informant ("CI") to whom Jackson referred as "Pat Doe" to maintain the CI's anonymity. The CI informed Jackson that Jesse J. Johnson, a black male, was manufacturing and selling cocaine. Officer Jackson asserted that the CI had "established reliability," and then relayed the facts that the CI had provided to him:

Pat Doe knows Jessie J. Johnson, and has been inside the residence located at 505 Amhurst [sic], Lockport, Illinois. Within the past 14 days, Pat Doe observed Jessie J. Johnson to have a quantity of a white chunky substance, suspected cocaine, inside this residence. Pat Doe knows that Jesse J. Johnson. [sic] intends on selling this cocaine. Pat Doe is familiar with cocaine because Pat Doe in the past has purchased, packaged, and sold cocaine. Pat Doe is familiar with the color, texture, and smell of cocaine from previous experience. Pat Doe also knows that Jesse J. Johnson. [sic] referred to this substance as being cocaine and mentioned that heintends to sell this cocaine as soon as possible to make a financial profit.

Officer Jackson corroborated the fact that Johnson was a black male individual born on the date specified by the CI. Officer Jackson also observed Johnson operate one automobile and determined that a second vehicle parked outside the residence at 505 Amherst was registered to Johnson.*fn1

Both Officer Jackson and the CI appeared before Judge Rozak, at which time the CI took an oath and signed an affidavit mirroring the details contained in Officer Jackson's application. Despite the CI's appearance before Judge Rozak, the record is unclear regarding whether the Judge asked the CI any questions, whether the CI testified before the court, or whether Judge Rozak observed the CI's demeanor when swearing to the facts contained in the affidavit. Based upon the facts in the affidavit, Judge Rozak found probable cause and issued a warrant authorizing law enforcement to search Johnson's person, the residence at 505 Amherst and two vehicles. On February 18, 2000, Officer Jackson and other law enforcement officials executed the search warrant and found 544 grams of cocaine, approximately 164 grams of crack cocaine, a baking dish, a scale, and a loaded semi-automatic pistol on the top shelf of a utility closet in Johnson's home.

A federal grand jury returned a three-count indictment against Johnson, who initially pled not guilty and filed a motion to quash the search warrant and the evidence that resulted from the search. Johnson argued that Judge Rozak issued the warrant despite the absence of probable cause. After briefing and argument, the district court denied John son's motion. The district court stated that the CI's first-hand observations were sufficient to support a finding of probable cause. The district court also noted that the presence of the CI before the issuing magistrate, and the opportunity to testify, were sufficient indicia of reliability to foreclose concerns regarding the veracity of the CI's information. As a result, the district court held that the CI had provided reliable information that supported a finding of probable cause. Subsequent to the district court's ruling, Johnson entered into a plea agreement with the government whereby he pled guilty to Count I of the indictment (possession with intent to distribute) and reserved his right to appeal the district court's denial of his motion to quash.*fn2

Johnson's plea agreement stated that on "February 18, 2000, the defendant knowingly and intentionally possessed about 544 grams of cocaine, about 164 grams of 'crack' cocaine, a baking dish, a scale, and a loaded semi-automatic pistol that were located on the top shelf of a utility closet in the lower floor of his residence, 505 Amherst, Lockport Illinois." At the plea hearing, the government recited the facts contained in the plea agreement, and Johnson affirmatively stated that the facts were true and that he possessed "cocaine base and cocaine powder" when the officers searched his residence on February 18, 2000. When asked by the district court about the firearm discovered during the search, Johnson admitted that "there was a gun there." As a result, the district court enhanced Johnson's offense level for possession of crack cocaine (U.S.S.G. sec. 2D1.1(c)), as well as for possession of a firearm during a drug crime (U.S.S.G. sec. 2D1.1(b)(1)).

The final issue at sentencing concerned the probation officer's recommendation that the district court sentence Johnson based upon a Criminal History of IV and a total offense level of 33 points. Despite a plea agreement to the contrary, the probation officer suggested the addition of three points to Johnson's criminal history because Johnson received traffic supervision for driving on a revoked license (adding one point), and because Johnson committed the present offense while on traffic supervision (adding two more points). Johnson argued before the district court that the three-point adjustment overstated his criminal history, and he urged the district court to depart downward. The district court refused to do so, noting that driving on a revoked license was a "serious" charge. The district court stated:

I don't think it overstates the seriousness of the offense to say that someone who has violated the driving laws and lost their license and then is caught driving receives a term of supervised release, and therefore, that is a criminal justice sentence of sorts, and one of the conditions, at least in terms of federal law, is that if you commit a crime while under that sentence, you are going to be held responsible for that as if you wereunder supervision for some other offense.

The district court sentenced Johnson to 188 months in prison, which reflects the low end of the sentencing ...


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