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United States v. Johnson

filed*fn*: April 13, 1994.

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



Appeal from the United States District Court for the Western District of Washington. D.C. NO. CR-88-329-TSZ. Thomas S. Zilly, District Judge, Presiding

Before: Wright, Tang, and Reinhardt, Circuit Judges.

MEMORANDUM

Phillip Johnson pleaded guilty to distribution of five or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), and was sentenced to eight years incarceration. The district court denied Johnson's motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10, and Johnson appeals. We have jurisdiction under 28 U.S.C. § 1291 and affirm.

Discussion

Johnson first argues on appeal that the district court could not sentence him as a career offender under U.S.S.G. § 4B1.1*fn1 because he was not charged with his prior convictions by indictment or information, as required by 21 U.S.C. § 851.*fn2

We rejected Johnson's argument in United States v. McDougherty, 920 F.2d 569 (9th Cir. 1990), cert. denied, 499 U.S. 911, 113 L. Ed. 2d 227, 111 S. Ct. 1119 (1991). We held that

Section 851 applies when the government seeks to obtain the increased statutory penalties provided in 21 U.S.C. § 841-858, based upon certain qualifying prior convictions. The career offender provision of the Guidelines, on the other hand, does not entail increasing the statutory penalties for the defendant's crime. Rather, Guideline § 4B1.1 simply implements the mandate of 28 U.S.C. § 994 (h) that the Sentencing Commission assure that certain career offenders receive sentences "at or near the maximum term authorized" for their crime under the existing federal statute.

Id. at 574.

Johnson next contends that his sentence was in violation of his plea agreement. We reject this argument as well. The plea agreement does not address the applicability of the career offender provision, and merely states that Johnson "understands that the penalty range . . . is imprisonment for a minimum period of at least five (5) years and a maximum period of not more than forty (40) years." [SER 2.] Johnson's sentence was in conformance with this agreement.*fn3

AFFIRMED.

Disposition

AFFIRME ...


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