Appeal from the United States District Court for the District of Columbia (No. 92-cr00442)
Before Sentelle, Henderson and Tatel, Circuit Judges.
Karen LeCraft Henderson, Circuit Judge
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Opinion for the court filed by Circuit Judge Henderson.
Appellant Robert Johnson raises two challenges to the sentence imposed following his convictions on one count of distribution of cocaine base and one count of distribution of cocaine base within 1000 feet of a school. He argues that the district court misapplied the sentencing guidelines by (1) enhancing his sentence for having committed the offenses while under a criminal justice sentence for a previous offense even though he was not then under active supervision by New York state parole authorities and by (2) not reducing his sentence because of diminished mental capacity. We affirm.
Johnson's convictions arise from two separate sales of cocaine base. On October 29, 1992 Johnson sold 20.96 grams of cocaine base to an undercover officer of the Metropolitan Police Department (MPD) at 3933 14th Street, NW, near Powell Elementary School. On November 2, 1993, over a year later, Johnson sold 10.60 grams of cocaine base to the same officer near the same location. A jury found him guilty of two counts of distribution of five grams or more of cocaine base in violation of 21 U.S.C. Section(s) 841(a)(1) and one count of distribution of cocaine base within 1000 feet of a school in violation of 21 U.S.C. Section(s) 860(a). The district court had dismissed the second count of distribution of cocaine base within 1000 feet of a school before the jury's deliberations and ultimately dismissed the related count of distribution (on which the jury had rendered a guilty verdict) on the government's motion.
The presentence report recommended the addition of two points to the computation of Johnson's criminal history under the United States Sentencing Guidelines (U.S.S.G. or guidelines) because Johnson was on parole in New York for previous offenses at the time of the cocaine sales. Johnson objected to the enhancement, arguing that he had not been under active parole supervision in 1992 or 1993. He relied on a letter he had received from the New York State Division of Parole (Parole Board) indicating that he would no longer be required to report to or contact his parole officer, nor would a parole officer contact him, after April 1, 1991. Johnson later filed a supplemental challenge to the presentence report contending that a downward departure pursuant to U.S.S.G. Section(s) 5K2.13 was warranted because he suffered significantly reduced mental capacity from post traumatic stress disorder (PTSD) resulting from the murder of his brother more than twenty years earlier.
The district court rejected both arguments at sentencing. Regarding the parole enhancement, the judge concluded that Johnson was "still under some jurisdiction of the parole authorities" warranting the enhancement. Transcript (Tr.) 16. Regarding the downward departure, the judge stated "it is essential that the court be satisfied that there was a direct connection between a conviction [sic-meaning the PTSD] ... and the precise offense involved," found no such connection and declined to depart. Tr. 39-40. Johnson was sentenced to 189 months of incarceration, eight years of supervised release and two special assessments of fifty dollars each.
The guidelines require a sentencing court to add two points to a defendant's criminal history calculation if "the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status." U.S.S.G. Section(s) 4A1.1(d). According to the Commentary, "active supervision is not required for this item to apply." U.S.S.G. 4A1.1(d) application note 4. Johnson argues that he was no longer under a "criminal justice sentence" at the ...