DRUG SENTENCE FINDING REJECTED U.S. District Court Judge Richard G. Kopf has rejected a lower court recommendation that a Lincoln man serving a life sentence for dealing drugs either be resentenced or retried in light of a recent U.S. Supreme Court ruling. Kopf said the Supreme Court ruling, which changes the way federal prosecutors try drug cases, did not apply to the government's case against Jimmy C. Johnson, whom Kopf sentenced in 1998 for distributing crack cocaine. The judge said the ruling, Apprendi vs. New Jersey, decided by the high court this summer, was not retroactive. Kopf's order Thursday rejected a lower court finding that Johnson should receive a new sentence or trial because of the Apprendi case. In November, U.S. Magistrate Judge David L. Piester said Apprendi required the government to specify drug quantities in criminal indictments. Piester also said the Apprendi case required prosecutors to prove to juries beyond a reasonable doubt the amount of drugs possessed or sold by defendants. Before Apprendi, judges determined drug quantities using "preponderance of the evidence" as their standard of proof. Johnson alleged that the government did not specify drug quantities in its indictment against him, nor did it prove the quantities to the jury using the "beyond a reasonable doubt" standard. In his eight-page memorandum rejecting Piester's recommendation, Kopf said the ruling in the New Jersey case was not retroactive because it does not call into question the basic fairness of Johnson's conviction. "Essentially, the shifting of an element of the offense from the judge to the jury, and requiring proof of such element beyond a reasonable doubt rather than by a preponderance of the evidence, does not directly relate to the accuracy of the conviction or sentence, nor does it implicate fundamental fairness," Kopf wrote. A federal jury convicted Johnson in September 1997 of conspiracy to distribute and possession with intent to distribute crack cocaine. Kopf sentenced him to life in prison, based partly on his post-trial finding on the quantity of crack Johnson sold. The judge noted in his memorandum that the charge on which Johnson was indicted carried a maximum penalty of life in prison.
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