USA v. Delmaro Johnson, No. 08-5716 (6th Cir. 2011)
Annotate this Case
Download PDF
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 11a0029n.06 FILED No. 08-5716 Jan 12, 2011 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DELMARO JOHNSON, Defendant-Appellant. BEFORE: ) ) ) ) ) ) ) ) ) LEONARD GREEN, Clerk ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF KENTUCKY OPINION NORRIS, COLE, and KETHLEDGE, Circuit Judges. PER CURIAM. Defendant-Appellant Delmaro Johnson appeals his mandatory-minimum sentence on due process grounds. For the following reasons, we AFFIRM. Johnson pleaded guilty to conspiracy to distribute and possess with intent to distribute cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1). Based on an offense level of 21 and criminal history category VI, the Presentence Report calculated Johnson s United States Sentencing Guidelines ( Guidelines ) range at 77-96 months of imprisonment. However, because Johnson had a prior conviction for a felony drug offense, he was subject to a 120-month mandatory minimum under 21 U.S.C. § 841(b)(1)(B). The district court sentenced Johnson to 120 months imprisonment, the statutory mandatory-minimum sentence. Johnson does not contest that the mandatory minimum was correctly applied to him; his only argument on appeal is that the district court violated his due No. 08-5716 USA v. Delmaro Johnson process rights by sentencing him to the mandatory minimum rather than within his lower, otherwiseapplicable Guidelines range. As Johnson acknowledges, this Court has held that mandatory-minimum sentences do not violate due process. See United States v. Gardner, 931 F.2d 1097, 1099 (6th Cir. 1991). Under the law-of-the-circuit doctrine, this panel may not overrule a prior panel s decision unless an inconsistent decision of the United States Supreme Court requires modification of the decision or this Court sitting en banc overrules the prior decision. Salmi v. Sec y of Health and Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (citation omitted). Johnson argues that United States v. Booker, 543 U.S. 220 (2005), requires modification of our prior holding in Gardner because Booker effectively ended the era in which sentences were determined as a matter of law, United States v. Grant, 524 F. Supp. 2d 1204, 1215 (C.D. Cal. 2007), vacated, 312 F. App x 39 (9th Cir. 2009). To the contrary, this Court has reaffirmed the constitutionality of mandatory-minimum sentences postBooker. See United States v. Franklin, 499 F.3d 578, 586 (6th Cir. 2007) ( Although Booker gave substantial discretion to the sentencing court to impose sentences below a mandatory maximum, nothing in Booker allows the court to negate the imposition of a mandatory minimum sentence. ). Therefore, Johnson s due process argument is foreclosed by the law-of-the-circuit doctrine, and his sentence is AFFIRMED. The government s motion to dismiss Johnson s appeal is DENIED as moot. -2-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
