United States v. Johnson

United States Court of Appeals
Fifth Circuit
F I L E D
April 4, 2006
Charles R. Fulbruge III
Clerk
Revised April 7, 2006
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 05-60695
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
GEORGE D. JOHNSON,
Defendant-Appellant.
____________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
_____________________________________
Before SMITH, GARZA, and OWEN,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
George Johnson appeals his conviction, un-
der 18 U.S.C. § 922(g)(1), of being a felon in
possession of a firearm, arguing that the gun
powder residue test performed on his hands,
the results of which were admitted at trial,
constituted an unlawful search and seizure in
violation of the Fourth Amendment. Addition-
ally, Johnson appeals his 120-month sentence
on the basis of United States v. Booker, 543
U.S. 220 (2005). We affirm.
I.
While two police officers were in the pro-
cess of arresting an individual responsible for
causing a disturbance at a motel in Clarksdale,
Mississippi, Johnson and other persons ap-
proached the officers, shouting threats at them.

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After the officers called for back-up, Johnson
and his cohorts left the scene and walked
down Lincoln Place, the street on which the
motel was located.
Ten additional officers arrived at the motel,
responding to the call for back-up. While the
police were discussing the events that had
transpired, gunshots were fired at them from
the direction in which Johnson and the others
had walked. When the shooting ceased, the
officers began searching Lincoln Place, trying
to locate the gunman. During the search, one
officer received an anonymous telephone call
informing him that Johnson was the shooter
and that he was hiding at 829 Lincoln Place.
At approximately the same time that the police
received the informant’s call, another officer
found five spent .45-caliber shell casings in the
street in front of 829 Lincoln Place.
On the basis of the informant’s tip and the
discovered shellcasings, the police surrounded
829 Lincoln Place. At least two officers
posted around the house could see Johnson
pacing in a back bedroom. The police located
the owner of the house, Arnetta Randolph,
who was not inside. Randolph’s children,
however, were inside, and she therefore told
the police they could enter. The officers
knocked, and when there was no response,
Randolph gave them permission to break down
her door.
The police removed Randolph’s children
and located Johnson, who was lying in a bed,
fully-clothed and with shoes on, in the same
back room where officers had previously wit-
nessed him pacing. The police accordingly did
not believe Johnson’s claim that he had been
asleep.
They handcuffed Johnson and searched the
premises for a firearm, finding a .45-caliber
handgun on the roof. Johnson was then placed
under arrest and taken to the police station,
where a gun powder residue test was per-
formed on his hands. The test yielded a pos-
itive result for his right hand; ballistics
matched the shell casings found in front of the
house to the gun found on the roof.
On the basis of these events, and because
he had previously been convicted of a felony
punishable by a term of imprisonment exceed-
ing one year, the grand jury indicted Johnson
for being a felon in possession of a firearm in
violation of § 922(g)(1). Johnson moved to
suppress the results of the gun powder residue
test, arguing that he was arrested solely on the
basis of an anonymous informant’s tip and
therefore that the arrest was unlawful because
it was made without probable cause. He con-
tended that the results of the residue test, as
“fruit of the poisonous tree,” were accordingly
inadmissible.
The court denied the motion to suppress.
The jury found Johnson guilty as charged, and
the court sentenced him to 120 months in pris-
on, the maximum allowed by statute for a con-
viction under § 922(g)(1).
II.
On appeal, Johnson renews his Fourth
Amendment objection to the admission of the
results of the gun powder residue test, con-
tending that the court committed reversible
error by denying his motion to suppress. “In
reviewing the denial of a motion to suppress,
we employ a two-tiered standard, examining
the factual findings of the district court for
clear error, and its ultimate conclusion as to
the constitutionality of the law enforcement
actions de novo.” United States v. Navarro,
169 F.3d 228, 231 (5th Cir. 1999).
Incident to a lawful arrest, “it is entirely

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reasonable for the arresting officer to search
for and seize any evidence on the arrestee’s
person in order to prevent its concealment or
destruction.” Chimel v. California, 395 U.S.
752, 763 (1969). Because the presence of gun
powder on his hands was relevant evidence
that Johnson (or merely time) could have
eventually removed or destroyed, if his arrest
was valid, the performance of the gun powder
residue test was lawful, and the admission of
the results at trial was proper.1
A warrantless arrest is lawful if “at the mo-
ment the arrest was made, the officers had
probable cause to make itSS[if] at that moment
the facts and circumstances within their knowl-
edge and of which they had reasonably trust-
worthy information were sufficient to warrant
a prudent man in believing that the petitioner
had committed or was committing an offense.”
Beck v. Ohio, 379 U.S. 89, 91 (1964). John-
son contends that at the time police entered
829 Lincoln Place and detained him, “no one
had seen him commit an unlawful act.” He
argues that when he was handcuffed, the only
evidence the police possessed that linked him
to the shooting was the anonymous infor-
mant’s tip. He asserts that such a tip, standing
by itself, is insufficient to establish probable
cause.
In arguing that the informant’s tip was un-
corroborated and that the tip provided the sole
basis for his arrest, Johnson demonstrates a
complete misunderstanding of the events lead-
ing up to and surrounding his arrest. Before
entering 829 Lincoln Place, the police had in
fact obtained two pieces of evidence that cor-
roborated the information given by the anony-
mous caller regarding the identity and location
of the shooter: (1) An officer had discovered
spent shell casings outside of the house in
which the informant said Johnson was hiding;
and (2) officers had observed Johnson pacing
in a back room of the same house. Further-
more, before the arrest, the police discovered
a handgun on the roof of the house where they
had found and detained Johnson.2
1 See Cupp v. Murphy, 412 U.S. 291, 296-96
(1973) (stating that pursuant to Chimel, it is con-
stitutionally permissible to take fingernail samples
from an individual under lawful arrest); see also
United States v. Love, 482 F.2d 213, 216 (5th Cir.
1973) (explaining that the “fact [that] [a]ppellant
was legally under arrest at the time his palmprint
exemplar was taken removes the first level of po-
tential Fourth Amendment infringement”).
2 In his brief, Johnson implies, but does not ar-
gue directly, that he was under arrest as of the
moment when the police located and handcuffed
him at 829 Lincoln Place, and he therefore implic-
itly contends that the probable cause requirement
was triggered prior to the discovery of the gun.
Even if he were correct on this point, the police had
obtained evidence sufficient to establish probable
cause before they handcuffed him and commenced
the search of the premises that led them to the gun
(a search that presents no Fourth Amendment
problem because Johnson is neither an owner nor
a resident of 829 Lincoln Place).
We disagree, however, with Johnson’s conten-
tion regarding the timing of his arrest. In United
States v. Sanders, 994 F.2d 200, 206-07 (5th Cir.
1993), we held that “handcuffing a suspect . . .
do[es] not automatically convert an investigatory
detention into an arrest requiring probable cause.”
Where “reasonable under the circumstances,” pol-
ice “may handcuff a suspect during an investiga-
tory detention without exceeding the limits of such
a detention.” Id. at 205, 206.
Given that Johnson had entered, without per-
mission, a house in which children were present,
and in light of the abusive conduct to which the
police had been subjected that night, it was reason-
(continued...)

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Taken together, this evidence was more
than sufficient to establish probable cause for
Johnson’s arrest. Accordingly, the arrest, and
the gun powder residue test performed inci-
dent thereto, were lawful. The district court
did not err in denying the motion to suppress.
III.
Section 2K2.1(c)(1)(A) of the United
States Sentencing Guidelines provides that
[i]f the defendant used or possessed any
firearm or ammunition in connection with
the commission or attempted commission
of another offense . . ., apply § 2X1.1 (At-
tempt, Solicitation, or Conspiracy) in re-
spect to that other offense, if the resulting
offense level is greater than that determined
[on the basis of § 2K2.1(a) and (b)].
Section 2X1.1 states that the base level for an
attempt is
[t]he base offense level from the guideline
for the substantive offense, plus any adjust-
ments from such guideline for any intended
offense conduct that can be established
with reasonable certainty.
Because evidence submitted at trial indi-
cated that Johnson used the firearm he was
convicted of possessing in violation of § 922-
(g)(1) to shoot at law enforcement officers, the
presentence report (“PSR”) cross-referenced
to attempted murder (U.S.S.G. § 2A2.1) and
concluded as follows:
Section 2A2.1(a) provides a base offense
level of 28 if the object of the offense
would have constituted first degree murder.
The offense conduct section establishes that
the object of the offense would have con-
stituted first degree murder. Because the
base level of 28 for attempted murder
exceeds the offense level calculation under
2K2.1(a) and (b), the guideline calculations
derived from 2A2.1 will be utilized.
The PSR recommended increasing the base
offense level of 28 by three levels pursuant to
U.S.S.G. § 3.A.1.2(b)(1) because Johnson had
assaulted persons he knew to be law enforce-
ment officers. Using a base offense level of 31
and a category III criminal history on account
of Johnson’s prior convictions, the PSR calcu-
lated a guidelines range of 135-168 months.
The court took the guidelines range into
consideration and sentenced Johnson to 120
months in prison, the maximum allowed by
statute for a conviction under 18 U.S.C.
§ 922(g)(1). See 18 U.S.C. § 924(a)(2).
Johnson objected and renews on appeal his
contention that the court erred in imposing the
120-month sentence by relying on the guide-
lines and by taking into account facts not
proven to a jury, in violation of Booker.
Johnson appears to be confused about what
Booker requires. As we stated in United
States v. Mares, 402 F.3d 511, 518 (5th Cir.),
cert. denied, 126 S. Ct. 43 (2005), “[i]t was
the mandatory aspect of th[e] sentencing re-
gime [under the Guidelines] that the Court
concluded violated the Sixth Amendment’s re-
quirement of a jury trial.” Accordingly, Justice
Breyer’s remedial opinion “severed and ex-
cised” the sections of the Sentencing Reform
Act of 1984 that made the Guidelines man-
datory and set forth standards of review on
appeal. Booker, 543 U.S. at 258-60. Post-
2(...continued)
able for the police to handcuff Johnson while they
continued their investigation. Johnson was arrested
when, after discovering the gun, the police decided
to take him to the station.

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Booker, we continue to review a district
court’s interpretation and application of the
guidelines de novo, see United States v. Vil-
legas, 404 F.3d 355, 359 (5th Cir. 2005), and
ultimatelyreview sentences for “unreasonable-
ness,” Booker, 543 U.S. at 261.
Johnson was convicted and sentenced after
Booker was decided and therefore was not
subjected to a mandatory sentencing regime.
The court’s use of the guidelines as advisory in
sentencing Johnson was entirely appropriate
because, under Booker, to reach a reasonable
sentence “the . . . court remains under a duty
pursuant to [18 U.S.C.] § 3553(a) to ‘consid-
er’ numerous factors including” the guidelines.
Mares, 402 F.3d at 519.
This duty to “consider” the Guidelines will
ordinarily require the sentencing judge to
determine the applicable Guidelines range
even though the judge is not required to
sentence within that range. The Guideline
range should be determined in the same
manner as before Booker/Fanfan. Related-
ly, Booker contemplates that, with the man-
datory use of the Guidelines excised, the
Sixth Amendment will not impede a sen-
tencing judge from finding all facts relevant
to sentencing. The sentencing judge is
entitled to find by a preponderance of the
evidence all the facts relevant to the deter-
mination of a Guideline sentencing range
and all facts relevant to the determination
of a non-Guidelines sentence.
Id. (internal citations omitted). The court’s
consideration of the recommended guidelines
range was not in error, because such consider-
ation is mandated by Booker and Mares, even
where calculation of the appropriate range re-
quires the court to take into account facts not
proven to a jury.
Turning to the more particular question of
whether Johnson’s 120-month sentence is rea-
sonable, we stated in Mares that
[i]f the sentencing judge exercises her dis-
cretion to impose a sentence within a prop-
erly calculated Guideline range, in our rea-
sonableness review we will infer that the
judge has considered all the factors for a
fair sentence set forth in the Guidelines.
Given the deference due the sentencing
judge’s discretion under the Booker/Fanfan
regime, it will be rare for a reviewing court
to say such a sentence is “unreasonable.”
Id. Johnson does not contend that the PSR
misapplied the guidelines or miscalculated the
appropriate guidelines range. Therefore, the
recommended 135-168 month guidelines range
was properly calculated.
Because the maximum sentence statutorily
allowed for a conviction under § 922(g)(1) fell
below the bottom of the range, the court de-
termined that the statutory maximum consti-
tuted an appropriate sentence. That sentence
is reasonable, because where the statutory
maximum is lower than a properly-calculated
guidelines range, a statutory maximum sen-
tence is functionally equivalent to a sentence
within the guidelines. In Mares, we adopted a
presumption of reasonableness for guidelines
sentences, and we now apply the same pre-
sumption to statutory maximum sentences
where that maximum falls below the appropri-
ate guidelines range.3
The judgment of conviction and sentence is
3 In adopting this presumption, we join the
Eighth Circuit. See United States v. Shafer, 438
F.3d 1225, ____, 2006 WL 453200, at *1 (8th Cir.
Feb. 27, 2006).

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AFFIRMED.

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