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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

UNITED STATES OF AMERICA

v. CASE NO. 1:03-cr-00059-MP-AK

JEROME W. JOHNSON,

Defendant.

________________________________/

O R D E R

This matter is before the Court on Doc. 221, Report and Recommendation of the

Magistrate Judge, which recommends that Defendant’s Motion to Vacate, Doc. 189, be denied. 

The Magistrate Judge filed the Report and Recommendation on Tuesday, February 12, 2008. 

The parties have been furnished a copy of the Report and have been afforded an opportunity to

file objections. Pursuant to Title 28, United States Code, Section 636(b)(1), this Court must

make a de novo review of those portions to which an objection has been made. In this case,

Defendant has filed objections to the Magistrate’s Report. Doc. 222. 

In the motion to vacate, Defendant raises eight claims for relief, each of which the

Magistrate finds is without merit. As the Magistrate points out, the factual bases of many of the

issues raised by the Defendant have already been addressed on appeal, and resolved adversely to

the Defendant. In his objections, Defendant continues to assert that his plea was not knowingly

and voluntarily entered into, and that his attorney was ineffective by telling him that “you’re

only looking at 37 to 46 months.” The Magistrate rejects this contention, and cites to the

transcript of the change of plea hearing where Defendant acknowledged that he faced a

maximum term of life imprisonment, that a minimum mandatory sentence applied because of his

prior felony conviction, and that no promises or inducements had been made to him.

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Case No: 1:03-cr-00059-MP-AK

It is clear from the record that Defendant’s minimum mandatory 20-year sentence was

triggered by his 1982 conviction for sale of cocaine–a felony offense. The Court repeatedly

informed Defendant that he was facing a minimum mandatory sentence, and Defendant stated

that he understood this, and then chose to enter a plea of guilty. Although counsel initially

advised Defendant that he was not facing a mandatory minimum sentence, but instead would be

facing a sentence of 37-46 months based on the probation officer’s conclusion that Defendant

qualified for safety valve relief, Defendant himself admitted that if safety valve relief were not

given, he would face a mandatory minimum sentence. The Government objected to the

Presentence Report, arguing that Defendant did not meet the statutory requirements for

application of the safety valve provision. 

Although Defendant argued that a grow operation in the Middle District was relevant

conduct encompassed within the charged conspiracy, he conceded that it would garner him three

criminal history points if it was found to be an independent grow operation, thus making safety

valve relief unavailable. The Court found the Middle District activity to be an independent grow

operation, which was upheld on appeal. Based on this, the Court concluded that safety valve

relief was unavailable to the Defendant, and that the mandatory minimum sentence applied. 

Defendant was repeatedly made aware of this possibility, and counsel cannot be deemed

ineffective based on his truthful representation of the possible sentencing outcomes. Therefore,

having considered the Report and Recommendation, and the objections thereto, I have

determined that it should be adopted. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge is adopted and

incorporated herein.

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Case No: 1:03-cr-00059-MP-AK

2. Defendant’s Motion to Vacate, Doc. 189, is DENIED.

DONE AND ORDERED this 28th day of February, 2008

 s/Maurice M. Paul 

 Maurice M. Paul, Senior District Judge

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