The Honor able Rober t Holmes Be ll, United S tates Dist rict J udg e for the Western District * of Michig an, sitting by

desig nation. NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION F ile Nam e: 10a0208n.06 No. 08-2529 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. BEN J AMI

N ANTH ONY JOHNSON, De fe nd ant- Ap pe lla

nt. ) ) ) ) ) ) ) ) ) ) ON AP P E AL F ROM THE UN I TE D ST AT ES D I STR I CT CO UR T F OR

TH E E AST ERN DI STRI CT OF MI CHI GAN

BEF ORE: SI L ER and ROGERS, Circuit J udg es; BE L L , District J udg e. * ROGERS, Ci rcuit Judge. Benjamin J ohnson pled g uilty to conspiring to distribute cocaine and launde r money . J ohnson arg ues on appea l that the Gover nment brea ched his ple a agree ment by

no t f ili nga su bs tanti a l a ssi sta

nc e mot ion

on his be ha lf

, th a t hi s p le a

wa s n ot k

no wi ng , in te lli g e nt, and voluntary , and that his counsel r ender ed inef fec tive as s i s t an ce . This court re views the Go ve rnme nt’ s d e c isi on

no t to fi le a

su bs tanti a l a ssi sta

nc e mot ion purs ua

nt t o a ple a a g re e me nt o nly for unc onstitut ional m o tives, and Johns on does not alleg e an unc onstitut ional motive in this case . J ohnson’s plea c olloquy

reve als that he e ntere d into his pl ea voluntar ily , and with knowledg e of the

re le va nt a sp e c ts o f h is p le a . Joh ns on is the re fo re no t e nti tle d to a re ve rs a l of

his c on vic tio n. B e c a

us eNo. 08-2529

United States v. J

ohnson

- 2 - the fa c ts und e rl yingJohn so n’ s c la im o f i ne ff e c tiv e a ssi stan c e of

c ouns e l are no t su ff

ic ie ntl y de ve lop e d, it i s n ot a

pp ro pr iate to a dd

re ss t his c la im o n d ir e c t a

pp e a l. Be njamin J ohnson was par t of the “B lack Ma fia F amily ,” a la rg e c o ca ine distribution

c on sp ir a c y

that g re w o ut o f a

dr ugor g anizatio n r

un by Te rr

y and De me tr ius F le no ry

ba se d in De tr oit

and e ve ntu a lly

e xten din g a s f

ar a s L os An g e le s a

nd At lanta . Ag ra

nd jur y ind ic te d B e nja

min J ohnson for conspirac y to distribute five kilogr ams or more of coca ine in violation of 21 U.S.C. §§ 841 and 846, for possession w ith intent to distribute more than 500 g rams of c ocaine in violation of 21 U. S.C. §§ 84 1( a )( 1) and 84 1( b) (1) , and for c on sp ir a c y to l a un de r m on e tary

ins tr ume nts in vio latio n o f 1 8 U .S. C. § § 19 56 (a )( 1) and 19 56 (h ). Th e ind ic tme nt a lle g e d th a t John so n a c te d a s a manag er “ over se vera l aspec ts of the illeg al drugopera tion,” that he tra

nsported and distr i b uted

c o c a i n e , an d

t h a th e ar r an g e d f o r t h e t r an s p o rt a t i o nan d

l a u n d e r i n g o f

m o n e y. Pursuant to a plea a g ree m en t , J o hnson pled g uilty to conspirac y

to distribute five or more kil og ra ms o f c oc a ine and

to c on sp ir a c y

to l a un de r m on e tary

int e re sts . T he a g re e me nt s tate d th a t bo th pa rt ie s b e lie ve d Joh ns on ’s Gu ide li ne range to b e 18 8- 23 5 mo nth s. John so n c ou ld w ith dr aw h is g uilty pl ea if his actual sente nce w as g reater than the top of the ag ree d Guideline ra ng e, but he waived his rig ht to appea l if his sentence did not ex cee d the top of the a g ree d Guideline ra ng e. The plea a g ree ment incorporated by ref ere nce a separ ate c ooperation ag ree ment. I n the coope ration ag ree ment, J ohnson ag ree d to p rovi de the Gove rnment debr iefing s and testimony reg ardingthe criminal ca se ag ainst him a nd his c o-def

endants. The cooper ation ag ree ment also provided, “ Any actions or state ments inconsistent with continued cooper ation under this agr eeme nt, including . . .No. 08-2529

United States v. J

ohnson

- 3 - any . . . conduct whi ch in any way undermines the e ffe ctiveness of defe ndant’s coope ration,

c on sti tut e s a

br e a c h of thi s ag re e me nt. ” Th e c oo pe ra tio n ag re e me nt furt

he r s tate d, “ I t is e xclu siv e ly within the gove rnment’s discr etion to determine whether defe n d ant has provided substantial assistance .” The Gover

nment ag ree d to move for a reduc ed sentence under either U.S.S.G. § 5K1.1 or F ed. R. Crim. P. 35, as appropriate , if it determined that J o h n son has provided substantial

a ssi sta nc e . T he Go ve rnme nt a g re e d to re c omm e nd a se nte nc e of

94 -1 18 months ’ i mpr iso nme nt i f it made either

motion. At his plea hea

ri n g held J anuar

y 12, 2007, the district court a sked Johns on what his Guideline sentenc ing r ang e wa s under the ple a agree ment. J ohnson initi ally stated that the ra

ng e wa s 94-118

mon ths , b ut a ft e r b e ingre min de d th a t 94 -1 18 wa s the r ang e un de r t he c oo pe ra

tio n a g re e me nt, J ohnson corr ectly

identified that the ra

ng e under the plea a g ree ment was 188-235 months. Johns on

a lso state d th a t he un de rs too d th a t, i f h e fu lf ill e d th e re qu ir e me nt “ to f ull y c oo pe ra te and te sti fy if

nece ssary” and if

“the g overnme nt be lieves that [he ha d] prope rly cooper ated, then [the g overnme nt would] m ove for a downwar d depar ture.” He acknow ledg ed that the Gover nment would be moving for a depar ture down to a

rang e of 94- 118 months. The district court s t at ed , and Johnson acknow ledg ed , t h at t he cour t would then have the power to independently

decide that J ohnson deser ved less than 94 or

more than 118 months. The c ourt then stated, “ I f I independe ntly

decide that y ou deser

ve more than 118, I will tell y ou here in open cour t and then you can w ithdraw your ple a and g o to tr ia l.” Th e de fe nd ant s tate d that no on e ha d ma de any pr omi se to h im n ot s tate d inNo. 08-2529

United States v. J

ohnson

John so n v olu

nta ry dis mis se d his c omp la int

a g a ins t hi s atto rn e y

and the fe de ra l pr os e c uto rs . 1 The c ourt g rante d a motion to dism iss the remainde r of the c ase on Ma y 11, 2009. - 4 - the p l ea a g ree ment. After J ohnson descr ibed his role in the coc aine distribution conspirac y , the district court ac cepte d J ohnson’s g uilty plea. At the time of his guilty plea, J ohnson was still serving a sentenc e in state prison re sulting from a state cr iminal conviction. Be cause J ohnson believed that he wa s entitled both to parole fr om the state prison sy stem and to be r elea sed on bond pendingthe fe dera l prison sentence , J ohnson was d i s p l e a s e d

w i t h h i s c o n t i nu e d i n c ar c e r a t i o n . A ta s t a tu s h e ar i n g h e l d

O c t o b e r 1 2 , 2 0 0 7 , t h e a t t o r

n e ys for the c ase and the district c ourt attempted to pe rsuade J ohnson to c onsent to fede ral c ustody , so that he could be rele ased on bond a nd so that, even if he wer e not re leased , h i s t i me in fede ral prison

wo uld be c ounte d tow ard his ine vit a ble se nte nc e . Joh ns on

did no t di sp ute the log ic of

thi s argume nt, but he re fused to leave state c ustody for r easons he would not expl ain. On Novembe r 5, 2007, Johns on filed suit in feder al cour t ag ainst hi s at t o rn ey , fede ral prosec utors involved in his case, the w arde n of the state prison, and a pa role boa rd member , alleg ing that the se pa

rt ie s we re c on sp ir ing to ke e p him i n s ta te pr iso n unla

wf ull y . In th e State me nt o f F a c ts section of his Prisoner Civil Rights Complaint form, J ohnson wrote:

Th a t I a m il le g a lly

hel d in pr iso n b y

the Mic hig an D e pt. of

Cor re c tio ns to se c ur e my pr e se nts [sic ] in F e de ra l Co ur t to te sti fy

fo r t he Go ve rnme nt. That F eder al and State of

ficials ar e in a conspirac y

to violate my

Guar antee d Constit utional Rights to deny me m y liberty and acce ss to the Courts in vi olation of the 1st, 4th, 5th, 6th, 8t h, 9th, 13th and 14th Amendments t o t h e United States Con sti tut ion

c a us ingme anxie ty , s tr e ss, and dure ss. 1No. 08-2529

United States v. J

ohnson

Th e ple a a g re e me nt, a

pp are ntl y re ly in g o n th e 20 05 Gu ide lin e s, re fe rr e d to thi s a s § 2 2D1.1(b)( 7). The 2009 Guidelines version of this sec tion is § 2D1.1(b)(11). - 5 - John so n’ s atto rn e y su bs equently mov e d to wi thd

ra w a s c ouns e l. A t th e he ari ngon the mot ion

to withdraw, held November 8, 2007, the parties discusse d that J ohnson had pled guilty and that he w as hoping to be sentenced after his coconspirators’ t rial, so that the Government would have a basis on which to make a U.S .S.G. § 5K1.1 m otion. The district cour t asked the f

eder al prosec utor whethe r, in light of Johnson’s suit ag ainst the prosec ut o r, t h e Government wa s still planning to move for a downwar d depar

tur e fo r J o h nson. The prose cutor re sponded, “Y our Honor, he ’s ac cusing me of doing some thing—I

mean he will if he testi fies, y es.” During the hearing , J ohnson sug g ested that the fe dera l prosec utor was responsible for the state parole boar d’s fa ilure to g rant him parole . The prosec utor ag ain sug g ested that Johnson subm it to fede ral custody so that he could be release d on bond, and Johnson ag ain ref used. The c ourt g rante d the motion by J ohnson’s attorney

to withdraw

a s c ouns e l and

a g re e d to pr ov ide John so n w itha lte rn a te c ouns e l. J ohnson’s Presente nce I

nvestig ation Report (PSR), relying on t h e 2006 edition of the Guidelines, conc luded that his adjusted offe nse level was 38. This w as two points hig her than the offe nse leve l computed by the plea ag ree ment, beca use the PSR concluded that Johnson was not elig ible for the two- point “safe ty valve” reduc tion pursuant to U.S.S.G. § 2D1.1(b)(9) (2006 Guidelines). J ohnson was not elig ible for that r eduction both be cause he was a manag er or leade r, 2

see U.S.S.G. § 5C1.2(a)( 4), and beca use he ha d more than one criminal history point, see U.S.S.G. § 5C1.2(a)( 1). The PSR also conclude d that J ohnson had thre e cr iminal hist ory points, as opposedNo. 08-2529

United States v. J

ohnson

- 6 - to the zero points sug g ested by the plea a g ree ment. This placed Johnson in criminal history cate g ory I Irathe r t ha n I . T he PSR c omp ute d Joh ns on ’s Gu ide lin e ra ng e a s 2 62 -3 27 mon ths

. At J ohnson’s first sentenc ing he aringon May 12, 2008, the district cour t acc epted the Guideline ca lculation sug g ested in the plea ag ree ment, res u l t i ng in a Guideline r ang e of 188- 235 months. The Gover

nment did not move for a downwar d depar

ture unde r U.S.S.G. § 5K1.1 based on J ohnson’s substa n t i al as s istance. Johnson’s counsel ar g ued that Johnson s hould ge t cre dit for time served in state prison under U .S.S.G. § 5G1.3. The district court, noting that the state prison time had not been c ounted bec ause of J ohnson’s unexplained ref usal to reque st a transfe r to fede ral custody , initially

denied J ohnson’s reque st for cr edit for time ser ved in state prison. The court then g a ve John so n’ s c ouns e l the op po rt un ity to a sk that the iss ue be br ie fe d; d e fe ns e c ouns e l a c c e pte d th is opportunity , and the district cour t adjourned the first senten ci n g h ea ri ng . J ohnson filed a supplemental memora

ndum, and the district cour t held a sec ond sentenc ing he aringon November 17, 2008 . At the sec ond sentenc ing he aring , for r easons not explained on the re cord, the parties ag ree d that the PSR

set out the appropr iate Guideline r ang e: 262 -3 2 7 months. The district court then stated: You have serve d a substantial per iod of time in St ate c usto d y for whic h y ou are entitled to cr edit . I n addition, the Court has looked at the pr esente nce r eport, a nd without goinginto detail, is satisfied that the appropr iate sente nce is 150 months starting from today

. . . . After discussion of some administrative deta ils, the court then stated: “N o w, t h i s is an

o v e r s im p li f ic a ti o no f s o me r a th e r c o mp li c a te d

is s u e s th a t a

r e r e s o lv e d

b y it

. [C o u n s e l f

o r Jo h n s o n ],

are y ou satisfi ed with it? ” Johnson’s counsel responde d, “I ’m satisfied.” T he district cour t thenNo. 08-2529

United States v. J

ohnson

- 7 - asked Johnson if he was satisfied. J ohnson stated that he still had “some issues” that he “would like to r eso lv e.” T he dis tr ic t c ourt br ie fl y a dd re sse d o the r i ssu e s b e fo re a llo wi ngJohn so n a c ha nc e to speak. When g iven the opportunity , J ohnson stated:

At this ti me I

would like to withdraw my plea of g uilty

and proc eed to tria l be c a us e Ibe lie ve that my

c on sti tut ion a l r ig hts have be e n vio late d in s e ve ra l a sp e c ts, Your Honor

. I filed a Motion to Dismiss the I ndictment and a Supplementa l Motion to Dismiss the Indictment prior to the se proce eding s, y et these motions have not been formally adjudicate d. Iwo uld lik e to f ur the r br ing to thi s Cour

t’ s atte nti on

tha t I have be e n il le g a lly de ta ine d w ith in t

he Mic hig an D e pa

rtme nt o f C or

re c tio ns un de r a

de fe ct of a U. S. Marsha l’s detainer

issued in 2006. Despite that, this Court gr an t ed m e b o nd, the Michig an De partment of Corr ections g rante d me two separ ate pa role dates, both of which wa s revoke d or extended base d on this il leg al U.S. detainer

. That beingsaid, Your Honor , truly it’s safe to infe r that my cons t i t utional rig hts has been violate d. On J une 17th, 2008 Ihad a me eting with Cy nthia Simon of the Recor ds Depa

rtment at Ry an Corre ctional Fa cility , and she informed me that she talked to my fede ral prosecutor and she cla imed the prosec utor told her that I had— that she put a U.S. Marsha l detainer on me. I don’t know how true it is, but ever y time I come to, to g et a parole , they keep bring ing up the prosecution for some r eason at the Michig an De partment of Corr ections and I would like to present the Court a nd the pr os e c uti on

wi th t his le tte r t hat w a s— [I nterruption by

prosec utor omitted.] Well, I would like to go to a jury trial, Your Honor, based on the fac t that I ’m ill e g a lly in p ri so n a

nd c on sti tut ion a l r ig hts vio late d. Th ank y ou . I have no thi nge lse t o s ay. The prose cutor stated that there was no fe dera l detainer on J ohnson. The district cour t noted that the state par ole boar d, by

letter, ha d stated that Johns on had bee n held in state cour t beca use he ha d violated hi s parole conditions and not beca use of any fede ral detainer. The c ourt then conc luded the p ro ce ed i n g. J ohnson argues o nap p ea l t h at t h e G o v ern m en tb re ac h edt h e p l eaagr ee m en t b y n o tfi l i n g a § 5 K1 .1 mot ion

and thu s th a t th e dis tr ic t c ourt e rr e d b y re fu sin g to a llo w Johns on to w ith dr aw h isNo. 08-2529

United States v. J

ohnson

J ohnson prese nts his arg ument that the Gover nment brea ched the plea a g ree ment in part as 3 an ar g umen t t h at t he district cour t erre d by not gr anting his moti on to withdraw his plea. T hat motion is irrele vant to his prese nt c laim f or two rea sons. First, the district court could not g rant the mo ti o n b e c a

u s e it w a s ma d e a f

te r Jo h n s o n w a s s e n te n c ed. See Fed. R. Crim. P . 11(e) . Second, J ohnson moved to withdraw his plea for r easons e ntirely

unrelated to any

alleg ed bre ach of

his plea a g re e me nt o r c oo pe ratio n a g re e me nt. We t he re fo re a dd

re ss t his c laim a s if

John so n h a d d ir e c tly alleg ed a ple a ag ree ment brea ch. - 8 - g uilty plea, that his plea

was not vol untary , knowing , intelligent, a nd that his counsel was ine ffe ctive fo r f a ili ngto o bje c t to the Go ve rnme nt’ s all e g e d bre a c h of the ple a a g re e me nt a nd by fa ili ngto a ssi st J ohnson in withdrawing his plea. J ohnson is not entitl ed to re lief base d on his alleg ation that the Gover nment brea ched his plea ag ree ment beca

use he doe s not a lleg e that the g overnme nt ha d an unconstitutional motive. Where 3 “the de fenda

nt’s p l ea agreement a ffor d[s] the g overnme nt ‘complete discr etion’ to deter mine whether to f

ile a motion for downwar d depar ture, [t his c ourt] ‘ma

y revie w the g overnme nt’s ref usal only for unc onstitut ional motives.’” Unit ed S t a t es v. Hawkins , 274 F.3d 420, 428 ( 6th Cir. 2001) (q u o t i n g Un ite d S

tates v . Moo re , 225 F.3d 637, 641 ( 6th Cir. 2000)). The c ooperation ag ree ment provided tha

t i t w as “e x clusively

within the gove rnment’s discr etion to determine whether defe ndant has provided substantial assistance .” Bec ause Johnson does not alleg e any unconstitutional mot ive, his claim that the Gover nment brea ched his plea ag ree ment fails. Fur t h er , the Gover nment’s decision not to make a

substantial a ssistance motion found support in the rec ord. The c ooperation ag ree ment, which wa s incorporated b y re fer ence into the plea agree ment, provided that “ [a] ny actions or state ments inconsistent with continued cooper ation under this agr eeme nt, including . . . any . . . co nduct which in any way undermines the e ffe ctiveness of defe ndant’s coope ration,No. 08-2529

United States v. J

ohnson

- 9 - constitutes a brea ch of this a g ree ment.” J ohnson undermined the e ffe ctiveness of his cooperation by fi lin g a laws uit wh ic h a lle g e d that fe de ra l and state of fi c ia ls h a d c on sp ir e d to ho ld h im i lle g a lly in s tate pr iso n “ to s e c ur e [his ] pr e se nts [sic ] in F e de ra l Cour t to te sti fy fo r t he Go ve rnme nt. ” Th is complaint undermined Johnson’s value as a witness, as the c laims made by J ohnson’s suit render ed him vulnerable to c ross examination sugg esting that his testimony was c oerc ed. J ohnson’s plea w as valid bec ause he ente re d t h e plea knowingthat he wa s subject to a sentenc e of up to 235 months unless the Gover nment deter

mined t h at h e co o p erated. In his plea colloquy , when asked specifically about his sentencingrang e abse nt a substantial assistance motion, J ohnson indicated that the top of his Guideline rang e was 235 months. L ater , he confirmed that he understood that if he “fully cooper ate[d] and testif[ ied]” and “the g overnme nt be lieve[d] that [he] proper ly cooper ated, then the y

[would] move for a downward departure .” He also indicated that he

un de rs too d th a t, o nly

the n, his se nte nc ingra

ng e wo uld

be be tw e e n 9 4 and 11 8 mo nth s. Th e se state me nts ind ic a te d a f

ull un de rs tand ingof

the re le va

nt c on se qu e nc e s o f h is guil ty ple a . B e c a

us e the Gover nment did not believe that J ohnson proper ly cooper ated, he did not rece ive the bene fit of the 94 to 1 18 mon th r e c omm e nd a tio n. Th e dis tr ic t c ourt ne ve rt he le ss s e nte nc e d h im t o 1 50 mon ths , we ll b e low th e ot herw ise a pp lic a ble Gu ide lin e ma ximumof 23 5 mo nth s. B e c a

us e thi s c omp or

ts wi th t he un de rs tand ingof

the ple a a g re e me nt’ s c on se qu e nc e s that John so n a c kn ow le dg e d d ur inghis plea c olloquy , J ohnson entere d into his pl ea knowing ly , voluntarily , and intellige ntly

. See B rady v. United States , 397 U.S. 742, 748 (1970) (statingthe standar d).No. 08-2529

United States v. J

ohnson

- 10 - J ohnson also points to the di strict court’s statement that the di strict court would give Johnson

an opportunity to w ithdraw his ple a if the district c ourt independe ntly deter mined th at J ohnson sh ou ld r e c e ive mor e tha

n 1 18 months ’ i mpr iso nme nt d e sp ite his g uil ty ple a . T his state me nt a lso does not indicate a

ny misunderstanding by

J ohnson, as it clear ly

applied only in the context where 18 8 mo nth s w a s th e top of the re c omm e nd e d s e nte nc ingrange . E ve n if on e we re to a

pp ly thi s statement to the si t u at i o n in which J ohnson had not offe red substantial a ssistance, the a nalog ous

assura nce to Johnson would be that the district court would al l o w h i m t o wi t hdrawhis plea if the court indepe ndently

deter mined that he deserved more t han 235 months. As J ohnson rec eived a far shorter se ntence , he ca

nnot now rely

on this pro m i s e t o claim that he did not enter into his pl ea knowing ly

. See B rady , 397 U.S. at 7 4 8 (h o l d i n g that defe ndant must be sufficie ntly awa re of the likely conseque nces of

his guilty plea)

. Finally , beca

use “[t] he re cord on appea l in this c ase is not sufficie ntly develope d to warr ant

re so lut ion of [the de fe nd ant]’ s in e ff

e c tiv e -a ssi sta

nc e c la im o n d ir e c t a

pp e a l,” we “ de c lin e to a dd re ss [t hat claim’s] merits.” United St ates v. Aaron , 590 F.3d 405, 410 (6th Cir. 2009) . J ohnson argues that his counsel was ineffe ctive for failing to object to the alleg ed bre ach of his plea ag ree ment and fo r f a ili nge ith e r t o mo ve to w ith dr aw Johns on ’s plea or to assi st Johns on in Johns on ’s mot ion

to withd ra w h i s plea. The rec ord on appe al is not sufficiently develope d to addre ss this i ssue adequately , not least bec ause of the district court’s r ather cry ptic statement t hat “the Court ha s loo ke d at th e pr e sent ence r e po rt , a nd wi tho ut g oin g int o d e ta il, is s a tis fi e d th a t th e a pp ro pr iate sentenc e is 150 months starting f rom today

. . . .” Without any

knowledg e of the unrec ordedNo. 08-2529

United States v. J

ohnson

- 11 - considerations that resulted in the 150-month sentenc e, this c ourt cannot beg in to deter mine whether J ohnson’s counsel wa s ineffe ctive. This claim is there fore not fit for re view on dire ct appe al. See id. For

these re asons, we AF F IRM John so n’ s c on vic tio n a nd se nte nc e and

de c lin e to a dd

re ss the me ri ts o f h is i ne ff

e c tiv e a ssi sta

nc e c la im.