United States v. Johnson, 4th Cir. (1996)
United States v. Johnson, 4th Cir. (1996)
Johnson argues that Marian Cheatham's testimony about his murder of Dwayne Oliver was unreliable because (1) she was a drug
addict, (2) her statement about where Oliver was shot differed slightly
from the autopsy report, and (3) she initially accused another conspirator of shooting Oliver. The district court agreed that Cheatham's testimony would not establish Johnson's guilt beyond a reasonable
doubt. However, having heard Cheatham testify, the district court
found that she was believable and found by a preponderance of the
evidence that Johnson had committed the murder. As the party challenging this finding, it was Johnson's burden to include Cheatham's
testimony in the materials presented on appeal. Notwithstanding this
omission, which prevents us from reviewing her testimony, we are
satisfied that there was factual support for the finding that Johnson
had participated in one or more murders. We find that the district
court's decision to depart by two levels was not an abuse of discretion.
Johnson claims that the court lacked factual support for its finding
that the arson of the dry cleaners was reasonably foreseeable to him.
Hogan testified that both she and Johnson were present when Woodfolk discussed various ways of intimidating the owner of the cleaners,
among them burning the building. The court found that Johnson was
involved in the violent side of the conspiracy as well as the distribution aspect, and that the arson was thus foreseeable to him and a factor for which a departure should be made in his case. We find that the
district court neither clearly erred in the former finding nor abused its
discretion in the latter finding. The extent of the departure was also
reasonable.
Accordingly, we affirm the conviction and the sentence. We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED
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