UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-4269

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JOHN MOWAD JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern 

District of North Carolina, at New Bern. Louise W. Flanagan,

Chief District Judge. (5:09-cr-00309-FL-2)

Submitted: January 31, 2012 Decided: February 9, 2012

Before WILKINSON, GREGORY, and DAVIS, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Ferris R. Bond, BOND & NORMAN, Washington, D.C., for Appellant. 

Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Kristine L. Fritz, Assistant United States Attorneys, 

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

John Johnson was convicted by a jury of both counts of 

an indictment charging him with conspiracy to distribute cocaine 

and distribution of cocaine, in violation of 21 U.S.C. §§ 841, 

846 (2006). The district court sentenced Johnson to 28 months 

imprisonment on each count, to run concurrently. Johnson noted 

a timely appeal in which he claims, first, that the district 

court erred by failing to, sua sponte, inquire whether his 

failure to testify on his own behalf was knowing and voluntary. 

Second, Johnson asserts that his sentence is unreasonable. 

Finding no error, we affirm. 

The facts presented at trial established the 

following. In September 2008, Johnson acted as a “middle man” 

in a cocaine transaction between his co-defendant Edgar Staton 

and Alpha Privette, a confidential informant for the Raleigh, 

NC, Police Department. Privette testified that he had first met 

Johnson the month prior after selling him (Johnson) a car 

through Craigslist. Johnson offered to obtain cocaine for 

Privette if he so desired. Afterward, Privette began 

cooperating with the Raleigh police and called Johnson to set up 

a controlled purchase of two ounces of cocaine; he and Johnson 

arranged to meet and then proceeded to Johnson’s auto parts 

business together. Once inside, Privette testified that Johnson 

showed him the bag with cocaine but, because it was more than 
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the two ounces that Privette wished to purchase, Johnson left to 

retrieve a scale. He returned a short time later with his codefendant Edgar Staton. Johnson weighed the cocaine on the 

scale, gave it to Privette, who handed $2000 cash to Johnson. 

Johnson then gave the money to Staton. Johnson and Staton were 

immediately arrested. 

The jury returned a guilty verdict as to both counts. 

The presentence report (PSR) held Johnson accountable for a 

total of 54.6 grams of cocaine, resulting in a base offense 

level of 16. With a criminal history category of III, the 

recommended advisory Guidelines range was 27 to 33 months 

imprisonment. The district court adopted the presentence report 

and imposed a within-Guidelines sentence of 28 months on each 

count, to run concurrently. Johnson noted a timely appeal. 

Johnson first argues that the district court failed to 

sua sponte inquire into whether Johnson’s failure to testify on 

his own behalf was a knowing, voluntary, and intelligent waiver 

of his right to do so. Because he failed to raise this issue 

below, our review is for plain error. See United States v.

Olano, 507 U.S. 725, 732 (1993). We find no error--plain or 

otherwise. 

First, Johnson was advised during his arraignment of 

his right to testify and present evidence at trial. Second, 

there is no affirmative duty on a district court to obtain an 
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on-the-record waiver of a defendant’s right to testify. See

United States v. McMeans, 927 F.2d 162, 163 (4th Cir. 1991); see

also Sexton v. French, 163 F.3d 874, 882 (4th Cir. 1998) 

(“[T]rial counsel, not the court, has the primary responsibility 

for advising the defendant of his right to testify and for 

explaining the tactical implications of doing so or not.”). 

Johnson argues nonetheless that, under “exceptional 

circumstances,” the district court has to duty to make an onthe-record inquiry to determine if a defendant’s decision not to 

testify is knowingly and intelligently made. We find no such 

circumstances on the record before us. 

Johnson also challenges the reasonableness of his 

sentence. Specifically, he asserts that he was a minor 

participant in the offense and should have been sentenced 

accordingly; that his sentence is unjustly harsh as compared 

with Staton; and that he should have received credit for time 

served pretrial on state criminal charges arising out of the 

same conduct. 

We review a sentence for reasonableness under an abuse 

of discretion standard. Gall v. United States, 552 U.S. 38, 51 

(2007). This review requires consideration of both the 

procedural and substantive reasonableness of a sentence. Id.; 

see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). 

In determining the procedural reasonableness of a sentence, we
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consider whether the district court properly calculated the 

defendant’s Guidelines range, treated the Guidelines as 

advisory, considered the 18 U.S.C. § 3553(a) (2006) factors, 

analyzed any arguments presented by the parties, and 

sufficiently explained the selected sentence. Gall, 552 U.S. at 

51. A sentence imposed within the properly calculated 

Guidelines range is presumed reasonable by this court. See Rita 

v. United States, 551 U.S. 338, 347 (2007); United States v. 

Mendoza-Mendoza, 597 F.3d 212, 217 (4th Cir. 2010). We find 

that the sentence imposed by the district court was both 

procedurally and substantively reasonable. 

Johnson argues that he should have received a fourlevel reduction for having a minimal role in the offense. Under 

U.S. Sentencing Guidelines Manual (USSG) § 3B1.2(a)-(b) (2010), 

a defendant who is a “minimal participant” in criminal activity 

may have his offense level reduced by four levels, and a 

defendant who is a “minor participant” may have his offense 

level reduced by two levels. Cases falling between subsections 

(a) and (b) warrant a three-level reduction. USSG § 3B1.2. 

Role adjustments are determined on the basis of the defendant’s 

relevant offense conduct. United States v. Fells, 920 F.2d 

1179, 1183-84 (4th Cir. 1990). In deciding whether the 

defendant played a minor or minimal role, the “critical inquiry 

is . . . not just whether the defendant has done fewer bad acts 
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than his co-defendants, but whether the defendant’s conduct is 

material or essential to committing the offense.” United 

States v. Pratt, 239 F.3d 640, 646 (4th Cir. 2001) (internal 

quotation marks omitted). 

The district court denied Johnson’s motion for a 

reduction in his offense level based on his role in the offense, 

“given [Johnson’s] integral involvement in the commission of the 

offense. . . . [he] arranged the controlled purchase, conducted 

a transaction at his business, brought cocaine to the meeting, 

served as an intermediary for payment. . . . the role that he 

played was essential for the commission of the offense.” 

Because the district court properly found that Johnson’s conduct 

was “material or essential to committing the offense,” the court 

did not err in denying his motion for a reduction in his offense 

level. 

Johnson also argues that his sentence is unreasonable 

because he received a harsher sentence than his co-defendant 

(who received only an 11-month sentence.) The statutory 

sentencing factors that a district court must consider in 

selecting a sentence include “the need to avoid unwarranted 

sentence disparities among defendants with similar records who 

have been found guilty of similar conduct.” 18 U.S.C.A. 

§ 3553(a)(6) (West 2000 & Supp. 2006). A disparity in the 

length of sentences received by co-defendants is not a 
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permissible ground for a departure from the Guideline range, 

absent prosecutorial misconduct such as manipulating Guideline 

factors. United States v. Withers, 100 F.3d 1142, 1149 (4th 

Cir. 1996). Johnson does not allege that any sentencing 

manipulation by the Government created a sentencing disparity. 

Moreover, Staton pled guilty and, therefore, is “not similarly 

situated to a defendant who provides no assistance to the 

government and proceeds to trial.” United States v. Jeffery, 

631 F.3d 669, 679 (4th Cir.) (internal quotations omitted), 

cert. denied, No. 10-10894, 2011 WL 4532052 (Oct. 3, 2011). 

Finally, Johnson claims that he should have received 

credit for time served in state custody. Because he raises this 

issue for the first time on appeal, we review it for plain 

error. Olano, 507 U.S. at 732. Under 18 U.S.C. § 3585(b)

(2006), the defendant shall receive credit for any time spent in 

detention before this date: “(1) as a result of the offense for 

which the sentence was imposed; or (2) as a result of any other 

charge for which the defendant was arrested after the commission 

of the offense for which the sentence was imposed; that has not 

been credited against another sentence.” The Supreme Court has 

held that § 3585(b) does not authorize a district court to award 

such credit in the first instance; rather, the Attorney General, 

through the Bureau of Prisons, is authorized to compute credit 

due under the statute. United States v. Wilson, 503 U.S. 329, 
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333-35 (1992). Therefore, the district court did not plainly 

err in failing to award credit for time Johnson served in state 

custody. 

We find that Johnson’s sentence is both procedurally 

and substantively reasonable. Accordingly, we affirm his 

conviction and 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