UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-4113

GREGORY C. JOHNSON, JR.,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Wilmington.

W. Earl Britt, Senior District Judge.

(CR-01-56)

Submitted: November 27, 2002

Decided: December 23, 2002

Before LUTTIG and KING, Circuit Judges, and

HAMILTON, Senior Circuit Judge.

Affirmed and remanded by unpublished per curiam opinion. 

COUNSEL

Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,

Assistant Federal Public Defender, Raleigh, North Carolina, for

Appellant. Anne Margaret Hayes, Assistant United States Attorney,

Raleigh, North Carolina, for Appellee. 
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Gregory C. Johnson, Jr., pled guilty pursuant to a written plea

agreement to assault with a dangerous weapon, 18 U.S.C. § 113(a)(3)

(2000), and possession of marijuana, 21 U.S.C. § 844 (2000), and was

sentenced to a total term of 108 months imprisonment. Johnson’s

attorney has filed a brief pursuant to Anders v. California, 386 U.S.

738 (1967), addressing whether the district court erred in denying

Johnson a reduction in his sentence for acceptance of responsibility,

U.S. Sentencing Guidelines Manual, § 3E1.1(a) (2000), but stating

that, in his view, there are no meritorious issues for appeal. Johnson

has also filed a supplemental pro se brief raising two additional

issues. For the reasons that follow, we affirm Johnson’s sentence. 

On November 25, 2000, Johnson accompanied his girlfriend, Sarita

Dudley-Nixon, to the Camp Lejeune military base to retrieve DudleyNixon’s son from her estranged husband, Vincent Nixon, after a

weekend visitation. When they were unable to find either the child or

Nixon, Johnson and Dudley-Nixon left the base but returned later that

day and found Nixon at home. Johnson and Dudley-Nixon entered the

home using Dudley-Nixon’s key; they found Nixon and the child

sleeping in a bedroom. Johnson then picked up a baseball bat, that he

had brought with him, and began beating Nixon on the head, causing

severe and permanent injuries. Johnson and Dudley-Nixon were later

arrested by the military police. Johnson was found to have 1.63 grams

of marijuana on his person. 

During the course of the investigation, Dudley-Nixon told one of

the investigating agents that she had received threatening phone calls

from Johnson regarding her intention to testify against him. DudleyNixon later recanted the statements, claiming she could not remember

Johnson ever making any such threats. The district court discredited

Dudley-Nixon’s later statements and found that Johnson had

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obstructed justice by threatening Dudley-Nixon, thereby increasing

his offense level by two levels. USSG § 3C1.1. 

Based on a total offense level of 27 and a criminal history category

of III, Johnson’s sentencing range was 87 to 108 months imprisonment. The district court sentenced him to 108 months. Johnson noted

a timely appeal. 

Johnson first challenges the district court’s refusal to grant him an

adjustment for acceptance of responsibility. We review the district

court’s decision for clear error. United States v. Pauley, 289 F.3d 254,

261 (4th Cir. 2002). Johnson argues that, because he admitted his

guilt and apologized for his conduct, the district court clearly erred in

denying the reduction. The district court, after hearing testimony from

Johnson, adopted the presentence report’s conclusion that Johnson’s

acceptance of responsibility was disingenuous and that he had

attempted to rationalize his conduct by placing part of the blame on

Dudley-Nixon. Johnson cannot show that these findings are clearly

erroneous. Moreover, Johnson received an adjustment for obstruction

of justice; in all but extraordinary cases, a defendant who receives

such an adjustment under USSG § 3C1.1 is ineligible for a reduction

for acceptance of responsibility. See USSG § 3C1.1, comment. (n.4).

Johnson has filed a supplemental pro se brief challenging the twolevel enhancement he received for obstruction of justice and the district court’s calculation of his criminal history points. Under USSG

§ 3C1.1, "[i]f the defendant willfully obstructed or impeded, or

attempted to obstruct or impede, the administration of justice during

the investigation, prosecution, or sentencing of the instant offense,

increase the offense level by 2 levels." The commentary to the guideline notes that "one type of conduct to which the enhancement applies

is threatening, intimidating, or otherwise unlawfully influencing a codefendant, witness, or juror, directly or indirectly, or attempting to do

so." USSG § 3C1.1, comment. (n. 3(a)). One of the investigators

assigned to the case stated that, during an interview with DudleyNixon in April 2001, she told him that Johnson had threatened her

regarding her upcoming testimony in his trial. Although DudleyNixon denied making those statements to the investigating agent, the

district court specifically discredited her later testimony. On these

UNITED STATES v. JOHNSON 3
facts, we find that the district court did not clearly err in enhancing

Johnson’s sentence for obstruction of justice. 

Finally, Johnson claims that the district court erred in calculating

his criminal history points by counting two prior convictions as separate convictions when they were related cases that were consolidated

for sentencing. The presentence report assigned two criminal history

points for a conviction for "Terroristic Threats" on April 10, 1998,

and one point for an assault conviction, also on April 10, 1998. The

charges arose from two separate incidents on the same date. However,

because Johnson committed the second offense after he was arrested

for the assault charge, the two convictions were properly counted separately in computing Johnson’s criminal history score. USSG

§ 4A1.2, comment. (n.3). 

In accordance with Anders, we have reviewed the entire record in

this case and have found no meritorious issues for appeal. Although

we affirm Johnson’s sentence, we remand to the district court for correction of a clerical mistake in the judgment and commitment order

which refers to the offense of conviction as conspiracy to commit

aggravated assault. See Fed. R. Crim. P. 36. We therefore affirm

Johnson’s sentence. This court requires that counsel inform his client,

in writing, of his right to petition the Supreme Court of the United

States for further review. If the client requests that a petition be filed,

but counsel believes that such a petition would be frivolous, then

counsel may move in this court for leave to withdraw from representation. Counsel’s motion must state that a copy thereof was served on

the client. 

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 AND REMANDED

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