U.S. v. Johnson: Sentencing Enhancements Require Additional Evidence

Justices with the U.S. Court of Appeals for the Eleventh Circuit recently vacated the sentence of a defendant who had argued prosecutors did not prove in trial the elements necessary for imposing an enhanced, two-level sentence.

Fort Lauderdale criminal defense lawyers understand that in U.S. v. Johnson the issue was the enhancement imposed for recklessly creating a substantial risk of death or injury in the course of fleeing from a law enforcement officer. Federal prosecutors, like those in state-level cases, have a number of enhancements that can be enacted to increase penalties upon conviction for serious crimes.

Under U.S.S.G. 3C1.2 (2010), federal prosecutors applied a two-level enhancement to Johnson for his role in the robbery of a drug store.

According to the court documents, Johnson and his co-defendant entered a CVS pharmacy with their faces obscured by bandanas and hands covered by gloves. They were armed, and reportedly stole several cases of cigarettes before demanding a store employee open the safe. They then stole an undisclosed amount of cash.

While the pair was still in the store, police officers arrived and sealed off the parking lot exits with their vehicles.

The suspects got into a stolen vehicle, with Johnson’s co-defendant in the driver’s seat. The driver then rammed into one of the police officer’s vehicles, and forced their way out of the parking lot. The driver continued to flee, speeding through traffic signals along the way.

Officers stopped the chase due to safety concerns, but the driver reportedly crashed into a utility pole soon thereafter.

The driver was trapped in the vehicle, but Johnson, the passenger, was able to get out and flee on foot. He was later tracked and stopped by the canine unit.

Both were convicted.

However, at issue upon appeal was the sentencing.

Although the facts of the case would suggest that the driver of the vehicle would be eligible for sentencing enhancements under federal statute, the passenger technically had no control over the vehicle. Therefore, an enhancement for reckless driving would not apply, according to their argument.

The government had argued the circumstantial evidence should have been enough to justify the enhancement, namely that he was an active participant in the robbery and the fact that he voluntarily got into the vehicle after police were already on the scene.

The district court had overruled Johnson’s initial objections.

However, the appellate court reviewed for plain error – that is, error that is clear, plain and obvious and was not harmless to his case. Johnson never contended that reckless endangerment did not occur, only that he was not responsible for it.

The appellate court found that under U.S. 3C1.2, a defendant can only be held accountable for his own conduct and for conduct that he aided and abetted, commanded, counseled, procured, induced or otherwise willfully caused.

This is the standard the appellate court applied in determining whether the sentencing enhancement was just. Previous case law suggested that passengers could not be held responsible for the reckless conduct of drivers when those passengers had not forced the driver to act in a reckless manner and had no control over the vehicle.

Further, case law from the Ninth Circuit Court of Appeals suggested specifically that one’s role in planning a robbery does not automatically render him or her accountable for reckless endangerment when they are not behind the wheel of the getaway car.

Ultimately, the appellate court sided with the defendant, who will be re-sentenced, minus the two-level enhancement, which should shave significant time off his sentence.

If you are charged with a crime in Palm Beach or Broward counties, contact the Law Offices of Leifert & Leifert, a Partnership of Former Prosecutors, for a free consultation to discuss your rights. Call 1.888.5.DEFEND.

Additional Resources:
U.S. v. Johnson, Sept. 10, 2012, U.S. Court of Appeals for the Eleventh Circuit, Justia Case Law Files
More Blog Entries:
U.S. v. Baily Grants New Trial For Improper Admission of Evidence, Sept. 5, 2012, Fort Lauderdale Criminal Defense Lawyers’ Blog