Appeal from the United States District Court for the Western District of Arkansas.
The opinion of the court was delivered by: Gruender, Circuit Judge.
Submitted: April 15, 2009
Before WOLLMAN, MELLOY and GRUENDER, Circuit Judges.
Following a jury trial, Mitchell Scott Johnson was convicted of possessing a firearm as an unlawful user of a controlled substance, marijuana, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The district court*fn1 sentenced Johnson to 48 months' imprisonment and three years' supervised release. Johnson appeals his conviction and sentence. For the following reasons, we affirm.
On January 1, 2007, Washington County, Arkansas Detective Steven Hulsey received an anonymous tip that Mitchell Johnson and his roommate, Justin Trammel, were in possession of firearms and large quantities of marijuana. Detective Hulsey observed Johnson and Trammel in a van. After stopping and approaching the van, Detective Hulsey smelled the odor of burnt marijuana. Johnson, the owner of the van, gave verbal and written consent to Detective Hulsey to search the van. With Johnson's consent, Detective Hulsey patted Johnson down and found, in his pants pocket, a plastic baggie of marijuana, which Johnson said was what Detective Hulsey was "looking for" and described it as "a little bit of weed." Detective Hulsey arrested Johnson for possession of marijuana and then asked whether there were any weapons in the car. Johnson told Detective Hulsey that there was a loaded firearm in the rear of the van. Johnson then informed another officer that the marijuana had been in his possession for a while and that it was for "personal use." During the search of the vehicle, a third officer located a loaded Lorcin 9 millimeter handgun in the back of the van.
During Johnson's two-day trial, the Government elicited testimony regarding his use of marijuana and possession of the handgun. Dustin Wynboom, Johnson's former co-worker, testified that between October or November 2006 and January 1, 2007, he and Johnson smoked marijuana together once every week or two weeks, including once in the parking lot of the Wal-Mart where they both worked. Dustin Wynboom also testified that Johnson brought a Lorcin handgun to his residence and showed it to him and his wife, Vanessa Wynboom. Vanessa Wynboom, another former co-worker of Johnson's, also testified that she had observed Johnson smoking marijuana once every other week and that he frequently came to work acting as though he had recently smoked marijuana. Michael Lindsey, another former co-worker of Johnson's, testified that he smoked marijuana with Johnson two or three times between November 2006 and January 1, 2007, and that Johnson sometimes appeared to be under the influence of marijuana at work. Lindsey also testified that he saw Johnson's gun at Johnson's home over the Christmas holiday in 2006. In addition, the Government presented evidence that the handgun had traveled in interstate commerce and that the substance in the plastic baggie found in Johnson's pants pocket was, in fact, marijuana. The jury found Johnson guilty of possessing a firearm while being an unlawful user of marijuana.
Johnson's Presentence Investigation Report ("PSR") calculated a total offense level of 14 and a criminal history category of II, which resulted in an advisory sentencing guidelines range of 18 to 24 months' imprisonment. However, paragraph 63 of the PSR, to which Johnson objected, addressed the possibility of an upward departure under United States Sentencing Guideline § 4A1.3, if the court were to find that Johnson's criminal history category substantially under-represented the seriousness of his criminal history or that Johnson was likely to commit other crimes. The PSR assigned Johnson only two criminal history points under U.S.S.G. § 4A1.2(d)(2)(A) for his 1998 guilty plea as a juvenile to five counts of capital murder and ten counts of first-degree battery for killing five and shooting another ten students and teachers at the Westboro Middle School in Jonesboro, Arkansas. At the time of the shooting, Johnson was thirteen years old. He was sentenced to confinement in a juvenile facility until the age of eighteen, the maximum sentence under Arkansas law at the time. Johnson then served three additional years in federal prison for juvenile federal firearms convictions related to the school shooting and was released from federal custody on his twenty-first birthday in August 2005, after serving a total of seven years in state and federal custody. Johnson received no criminal history points as a result of his juvenile federal conviction.
At the sentencing hearing, the Government filed a motion for an upward departure, arguing that Johnson's criminal history category significantly under-represented the severity of his prior criminal conduct because his prior convictions as a juvenile led to his receiving fewer criminal history points than would have been assigned for a similar adult conviction. The Government also argued that Johnson, as a younger offender who received lenient treatment, posed a greater risk of recidivism. See U.S.S.G. § 4A1.3 cmt. background. In addition, the Government presented testimony from Lieutenant Jon Simpson of the Bentonville, Arkansas Police Department regarding Johnson's pending state charges in Benton County, Arkansas. According to Lieutenant Simpson, in February 2008, a customer left his credit card at the convenience store where Johnson worked. Johnson used the credit card to purchase gas and attempted to obtain money from an ATM. While discussing the stolen credit card with Benton County officers, Johnson agreed to a search of his person. The officers discovered he had marijuana. Johnson was charged with theft, financial identity fraud, and marijuana possession. The Government argued that this evidence also demonstrated a strong likelihood of recidivism, which would make an upward departure appropriate under § 4A1.3. Finally, the Government argued that an upward variance was warranted under 18 U.S.C. § 3553(a) for the same reasons the upward departure was appropriate.
Johnson opposed any upward departure or variance, arguing that he received the maximum sentence he could have received for his juvenile offense, so the sentence was not lenient. He also argued that the § 3553(a) factors supported a sentence within the guidelines range for the instant offense-possession of a firearm while being an unlawful user of marijuana.
The district court determined that the PSR correctly identified the advisory sentencing guidelines range of 18 to 24 months based on a total offense level of 14 and a criminal history category of II. See U.S.S.G. § 2K2.1(a)(6)(A) (stating that the offense level should be set at "14, if the defendant . . . was a prohibited person at the time the defendant committed the instant offense," where a prohibited person includes an unlawful user of marijuana who possesses a firearm). After considering the Government's motion for an upward departure, the district court found that there was "clearly reliable information, that this criminal history category, based on the juvenile conviction, as it properly is, does substantially under-represent the seriousness of Johnson's criminal history." Accordingly, the court departed to an offense level of 20, the offense level that would apply if Johnson's capital murder and first-degree battery convictions were adult convictions. See U.S.S.G. § 2K2.1(a)(4)(A) (stating that the offense level should be set at "20, if . . . the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense").*fn2 Again considering Johnson's prior juvenile offenses as adult convictions, the district court departed to a criminal history category of III after adding three criminal history points under U.S.S.G. § 4A1.1(a) and two points under § 4A1.1(e), for a total of five criminal history points.*fn3 The offense level of 20 and criminal history category of III resulted in an advisory guidelines range of 41 to 51 months' imprisonment.
The district court went on to explain that "even if [it] did not accept the motion for upward departure, not being constrained by mandatory sentencing guidelines, the Court would, and does, believe that a sentence in the neighborhood of [41 to 51 months' imprisonment] would, nonetheless, be appropriate in light of the [18 U.S.C.] Section 3553(a) considerations." The district court acknowledged the § 3553(a) factors: the need for a sentence to reflect the nature and circumstances of the offense, the history and characteristics of the defendant, and the seriousness of the offense; to promote respect for the law; to provide a just punishment for the offense; to afford adequate deterrence to criminal conduct; and to protect the public from the defendant's further crimes. In determining that an upward variance would be appropriate, the district court said even if the Court started with a total offense level of 14 and a criminal history category of [II], in light of the history and characteristics of this defendant, and the fact that after the commission of the acts that, admittedly, were done when he was a very young man, that he has again placed himself in possession of a firearm, remembering that the murders of the young people in Jonesboro were committed with stolen firearms that this young man and his colleagues in that endeavor had stolen, which resulted in federal gun charges, as I recall, that he again has placed himself in possession of a gun is a very, very worrisome concern.
The district court further explained that a lower sentence, within the initial guidelines range of 18 to 24 months' imprisonment, would not promote respect for the law and would not protect the public from likely future criminal acts by Johnson.
Ultimately, the district court determined that a sentence of 48 months' imprisonment was appropriate based on the upward departure or, alternatively, an upward variance. Johnson appeals, contending that his conviction was based on insufficient evidence, that the district court procedurally erred in ...