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Johnson v. United States

United States District Court, E.D. Tennessee, Greeneville

February 2, 2017

ROGER TRISTAN JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          J. RONNIE GREER UNITED STATES DISTRICT JUDGE

         Roger Tristan Johnson, (“Johnson” or “petitioner”), a federal prisoner, has filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. Section 2255, [Doc. 182], [1] The government has responded in opposition, [Doc. 184], petitioner has not replied, and the matter is ripe for disposition. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons set forth herein, petitioner's § 2255 motion lacks merit and will be DENIED and the case (No. 2:15-CV-176) DISMISSED.

         I. Procedural and Factual History

         Johnson was one of five co-defendants charged in a four-count indictment returned by a federal grand jury on August 14, 2012, [Doc. 3]. He was charged in Count One with conspiracy to distribute and to possess with intent to distribute oxycodone in violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(C). [Id.][2] Petitioner entered into a written plea agreement with the government, [Doc. 52], and, on October 22, 2012, entered a plea of guilty on Count One. [Doc. 50]. The plea agreement contained the following stipulated factual basis:

Law enforcement began a financial investigation into the drug trafficking activities of Roger Tristan JOHNSON in 2011. A review of financial documents showed that after large cash deposits were made in JOHNSON's bank account in Tennessee, there were also large withdrawals were also being made the same day from JOHNSON's account in south Florida branch location of the bank.
Two accounts belonging to Johnson that were examined for suspicious activity. From 11/117/12009 to 11/17/2010 there were 73 cash deposits totaling $48, 324.78 (Cash constituted 94% of all deposits). This review also revealed 164 debits totaling $46, 847.21 (Cash made up 86% of all dollars withdrawn). There were 89 check card purchases for a total of $6, 214.91, which made up 13% of all dollars withdrawn.
Further review of the account of Johnson revealed check card purchases at Delta Airlines, La Quinta Inn (West Palm Beach, Florida), Comfort Inn (West Palm Beach, Florida), Enterprise Rent- A-Car, and various gas stations between Tennessee and Florida. Documents provided by Delta Airlines indicate that JOHNSON has flown from the Tri-cities Airport in Johnson City, Tennessee to the Palm Beach International Airport in Palm Beach, Florida. Debits from these accounts do not show typical expenditures, such as bill payments including rent, utilities, and insurance. Analysis of this account does not show any evidence of legitimate income or payroll.
Bank records also show rapid money movement through JOHNSON's account. On September 28, 2011, there were four cash deposits totaling $14, 450.00 placed into JOHNSON's accounts in Tennessee ($600.00, $1, 000.00, $3, 200.00, and $9, 650.00). On this same date, there was a $13, 000 cash withdrawal in Florida from JOHNSON's bank account at Palm Beach Lakes. JOHNSON is the only person listed on this account. Records provided by Delta Airlines indicated that JOHNSON purchased a round trip airline ticket for $746.80 on 9/28/2010 (ticket number 0062181414162) and flew from the Tri-Cities Airport in Johnson City, Tennessee to the Palm Beach International Airport in Palm Beach, Florida and returned on the same date.
On April 14, 2010, JOHNSON was stopped by the Hampton County Sheriff's Office going southbound on 1-95 in Yamassee, South Carolina. A "Google Maps" directions search provides that 1-95 through Hampton County, South Carolina is the suggested route between Johnson City, Tennessee and Palm Beach, Florida. A search during this stop located a small amount of marijuana and $5, 520.00 cash. JOHNSON did not contest the seizure of the money.
On June 8, 2011, another individual was stopped by in Yamassee, South Carolina by the same Deputy that had stopped JOHNSON in April, 2010. This individual was driving a vehicle registered to JOHNSON and a search conducted during the stop revealed 1, 200 Roxycodone pills. This individual advised that Roger JOHNSON was the head of a large scale drug trafficking operation responsible for the transportation of approximately 3, 000 oxycodone pills per week from Miami, Florida to Johnson City, Tennessee. Further, the individual admitted that he/she was working as a courier for JOHNSON and was attempting to deliver the pills to JOHNSON in Tennessee. Additionally, he/she advised that JOHNSON only distributed to a small select group of people and in quantities of several hundred pills per distributor and that Josh ARNETT, Tommy NICOLAS, and Diane CAMPBELL, were also working for JOHNSON. During a recorded telephone conversations with this person, JOHNSON offered to pay for his/her defense attorney provided that he/she "still has. amnesia." JOHNSON did in fact give this person $1, 560.00 for attorney's fees. JOHNSON also provided instructions on what to say to the judge and law enforcement.
November 2, 2011, the same Deputy with the Hampton County Sheriff s Office executed a traffic stop on a black SUV occupied by Diane CAMPBELL and Tommy NICHOLAS traveling southbound on I-95 from Johnson City, Tennessee. Upon approaching the vehicle, the Deputy observed a large amount of cash and several pill bottles in the center console in plain view and during a subsequent consent search of the of the vehicle located approximately $18, 040.00 USC. During further questioning of Diane CAMPBELL she stated that she was taking the money down to Miami for another individual to purchase oxycodone pills to take back to Tennessee. When asked by Deputy Patterson who she knew that was trafficking drugs in Johnson City, Tennessee, she gave the last name "JOHNSON. " June 8, 2012, law enforcement debriefed Diane CAMPBELL who admitted that she had worked as a drug courier for Roger JOHNSON, who she called "TRISTAN." She stated that she made numerous trips, smuggling oxycodone pills from South Florida to East Tennessee for Roger JOHNSON. She also stated that she had worked as a distributor for Roger JOHNSON.
On September 6, 2012, JOHNSON was arrested and Federal Search Warrant was executed at JOHNSON's residence. JOHNSON admitted to trafficking oxycodone and indicated that he was still in contact with his source of supply in Florida. During the search of JOHNSON's residence, law enforcement recovered a loaded .45 caliber handgun.
Through the testimony of several witnesses, including law enforcement officers, the United States would demonstrate, beyond a reasonable doubt, (1) that beginning from approximately January 1, 2010, and continuing to on or about August 14, 2012, in the Eastern District of Tennessee, and elsewhere, the defendant did knowingly, intentionally, and without authority, conspire with at least one other person to distribute and possess with the intent to distribute the equivalent of at least 4, 976 but less than 14, 925 (30 milligram) oxycodone pills, a Schedule II controlled substance. In total, the defendant admits responsibility for the distribution of between 149, 280 milligrams of oxycodone, which is the equivalent of a total of 1, 000.18 kilograms of marijuana, and 447, 750 milligrams of oxycodone, which is the equivalent of a total of 2, 999.93 kilograms of marijuana. The parties therefore stipulate to a drug weight calculation of at least 1, 000 kg of marijuana but less than 3, 000 kg of marijuana.

[Doc. 52 at ¶ 4].

         The Court found, among other things, that petitioner's guilty plea was “knowledgeably and voluntarily made, ” accepted the guilty plea and adjudged petitioner guilty of Count One, scheduled a sentencing hearing, and ordered that a presentence investigation report (“PSR”) be prepared. [Doc. 50]. The PSR calculated a base offense level of 32 based on the quantity of oxycodone pills stipulated to in the plea agreement, added a two-level enhancement pursuant to USSG § 2D1.1(b)(1) for possession of a firearm during the offense, and an additional four levels under USSG § 3B1.1(a) for petitioner's organizer/leader role in the conspiracy. [PSR at ¶¶ 25, 26, 28]. After a three level reduction for acceptance of responsibility pursuant to USSG § 3E1.1, [Id.at ¶¶ 32, 33], the total offense level was 35. [Id.at ¶ 34]. Petitioner's criminal history category was calculated as V, and the resulting advisory guideline range was 235-240 months [Id. at ¶75].[3] Johnson, through counsel, objected to the § 2D1.1(b)(1) enhancement and argued that his criminal history category was overstated. [Doc. 103 at 1, 4]. The Court overruled these objections, adopted the PSR, and sentenced petitioner to 235 months of imprisonment on April 23, 2013, [Doc. 108]. Judgment was entered in the case on April 29, 2013, [Doc. 115].

         Petitioner appealed the Court's judgment to the Sixth Circuit Court of Appeals. [Doc. 128]. Petitioner's counsel filed an Anders brief in the Sixth Circuit pursuant to Anders v. California, 386 U.S. 738 (1967) and Rule 101(f)(3), Rules of the Sixth Circuit, concluding that there were no non-frivolous issues for appeal, but identifying potential arguable issues for appeal, [Doc. 164]. The Sixth Circuit held, on March 26, 2014, that Johnson had made a valid waiver of his right to appeal, had no plausible grounds for challenging the validity of his conviction on direct appeal, that the district court had properly applied the § 2D1.1(b)(1) two-level enhancement because “he did not meet his burden of showing that it was clearly improbable that the gun had been connected to the offense, ” that the sentence imposed was not unreasonable, ...


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