United States v. Gregory Johnson

131 F.4th 811

• Court: Court of Appeals for the Seventh Circuit
• Decided: March 25, 2025
• Docket: 23-3251
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 23-3251 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

GREGORY JOHNSON, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division. No. 1:21CR25-001 — Holly A. Brady, Chief Judge. ____________________

ARGUED MARCH 4, 2025 — DECIDED MARCH 25, 2025 ____________________

Before BRENNAN, ST. EVE, and MALDONADO, Circuit Judges. ST. EVE, Circuit Judge. A jury convicted Gregory Johnson of attempting to use a minor to engage in sexually explicit con- duct for the purpose of producing child pornography. When imposing the sentence, the district court waived any fine based on his inability to pay, 18 U.S.C. § 3571, and it also de- termined that Johnson was indigent and therefore not subject to the discretionary assessment under the Justice for Victims of Trafficking Act (“JVTA”), 18 U.S.C. § 3014. But the court 2 No. 23-3251

imposed a $5,000 assessment under the Amy, Vicky, and Andy Child Pornography Victim Assistance Act (“AVAA”), 18 U.S.C. § 2259A. Johnson challenges the imposition of this § 2259A assess- ment, arguing that it cannot be reconciled with the court’s finding of indigency. He contends that the district court erred in imposing the AVAA assessment, and further erred in fail- ing to explain the discrepancy. We take this opportunity to clarify that the § 2259A assess- ment is mandatory, regardless of the defendant’s ability to pay. But a court has discretion in setting the amount. In doing so, it must consider prescribed factors, including the defend- ant’s financial condition. In this case, the district court correctly recognized that the AVAA assessment is mandatory and imposed it accordingly. The court did not explain, however, why $5,000 was an ap- propriate amount, particularly given its findings about John- son’s financial condition for purposes of other financial pen- alties. We take no position on whether $5,000 is an appropri- ate assessment; we simply lack an explanation that allows us to review the court’s discretionary decision. Therefore, we va- cate the AVAA assessment and order a limited remand for the district court to impose an AVVA assessment and explain its basis for doing so. I. In April 2020, Johnson responded to an online post from an undercover officer that advertised sex acts with his 14-year-old “stepdaughter.” A grand jury charged Johnson with attempting to induce a minor to produce child No. 23-3251 3

pornography in violation of 18 U.S.C. § 2251(a) and (e). In Au- gust 2023, a jury convicted Johnson of the charge. The probation office prepared a presentence investigation report (“PSR”), which stated that Johnson had no income apart from occasional support payments from his mother, and that his sole assets were around $40,000 in a retirement account and $500 in a savings account. The PSR also indicated that Johnson was subject to fees and financial penalties: a fine of up to $250,000 under 18 U.S.C. § 3571(b); the standard, mandatory $100 special assessment under 18 U.S.C. § 3013; a $5,000 assessment under the JVTA if the court found that he was not indigent, id. § 3014; and an additional assessment un- der the AVAA, id. § 2259A. At the sentencing hearing, the court adopted the facts in the PSR without objection. Johnson requested that the court recognize his indigency and not impose a fine. After imposing a sentence of 15 years’ imprisonment and 10 years’ supervised release, the court turned to the financial consequences. It de- termined that Johnson was unable to pay a fine and waived it. It then found, based on Johnson’s “current financial circum- stances, his lengthy term of imprisonment, and his earning potential upon his release from imprisonment,” that he was indigent and therefore excused from a JVTA assessment. But without further discussion of his ability to pay, the court im- posed a $5,000 assessment under the AVAA. The court ex- plained that “in arriving at the amount of the assessment, [it had] considered the factors set forth in Section 3553(a) and 3572.” 4 No. 23-3251

II. Johnson appeals the imposition of the AVAA assessment. He primarily argues that the court erred in imposing an as- sessment at all after finding him indigent under the JVTA and unable to pay a fine. He also challenges the amount of the as- sessment. We review the district court’s interpretation of the AVAA, as well as whether it committed any procedural error, de novo. United States v. Chaoqun, 107 F.4th 715, 725, 735 (7th Cir. 2024). A. We start with an overview of relevant statutes in this case that impose financial consequences on defendants convicted of federal crimes. In all cases, a district court must impose a special assessment under 18 U.S.C. § 3013. Here, the court has no discretion; it is “required to assess $100 per felony count.” United States v. Filzen, 991 F.3d 785, 789 (7th Cir. 2021). Courts may impose a separate, discretionary fine under 18 U.S.C. § 3571. See United States v. Ellis, 522 F.3d 737, 739 (7th Cir. 2008). When determining whether to impose this fine, and for what amount, the court must consult the factors listed in 18 U.S.C. § 3572, including “the defendant’s income, earning capacity, and financial resources,” as well as the gen- eral sentencing factors in § 3553(a). Id. § 3572(a). More specialized statutes apply when the offense involves exploiting children. Under the JVTA, “the court shall assess an amount of $5,000 on any non-indigent person or entity con- victed of” child exploitation offenses, among others. Id. § 3014(a) (emphasis added). The indigency determination re- quires the court to consider both “whether the defendant is eligible for appointed counsel at the time of sentencing and No. 23-3251 5

whether the defendant generally lacks the resources to pro- vide for himself going forward.” United States v. Otradovec, 72 F.4th 794, 797 (7th Cir. 2023). This appeal focuses on another statute applicable to child- exploitation offenses, the AVAA, 18 U.S.C. §§ 2259, 2259A. Section 2259 directs courts to order restitution for identified victims of child exploitation and related offenses. Section 2259A, the provision at issue here, instructs courts to impose an assessment. In relevant part, it provides: (a) In general.—In addition to any other crimi- nal penalty, restitution, or special assess- ment authorized by law, the court shall as- sess—

… (3) not more than $50,000 on any per- son convicted of a child pornogra- phy production offense.

…

(c) Factors considered.—In determining the amount of the assessment … , the court shall consider the factors set forth in sec- tions 3553(a) and 3572.

B. With the relevant statutes outlined, we turn to the merits. Because Johnson contends that the court erred by imposing the AVAA assessment, we must first decide whether the court had discretion to waive it. 6 No. 23-3251

As with all issues of statutory interpretation, we begin our analysis with the text. See Chaoqun, 107 F.4th at 725. Like the special assessment statute and § 2259, § 2259A provides that the court “shall” impose an assessment. “Shall” connotes a mandate and eliminates judicial discretion. See Smith v. Spiz- zirri, 601 U.S. 472, 476 (2024); Lopez v. Davis, 531 U.S. 230, 241 (2001) (“shall … impose[s] discretionless obligations”). Notwithstanding Johnson’s arguments to the contrary, the use of “shall” in § 2259A without qualifications distinguishes it from § 3571(a), which is permissive, and the JVTA, which is conditioned on non-indigence. Id. § 3014(a). We therefore see no contradiction in the court’s decision to impose an assess- ment but not a fine. See United States v. McIntosh, 198 F.3d 995, 1003–04 (7th Cir. 2000) (explaining that “no … contradiction exists” when a district court orders restitution under a “shall order” statute but waives a fine under a statute that provides for discretion). C. Still, though a court has no discretion in deciding whether to impose the assessment, it must exercise discretion in setting the amount (up to the maximum amounts set forth in the stat- ute). 18 U.S.C. § 2559A(c). Here, the court imposed a $5,000 assessment and asserted that it considered the relevant statutory factors in doing so. When explaining a financial penalty that requires considera- tion of factors under § 3553(a) or § 3572, a court need not make specific findings about each factor, but it must be “clear from the record that the court has properly considered the rel- evant factors.” United States v. Picardi, 950 F.3d 469, 476 (7th Cir. 2020); see also United States v. Lee, 950 F.3d 439, 444 (7th No. 23-3251 7

Cir. 2020); United States v. Bauer, 129 F.3d 962, 968 (7th Cir. 1997) (a sentencing court “must consider the relevant factors and provide a reasoned and reviewable basis for its decision to impose a fine”). If the court does consider the relevant fac- tors, we review the amount of an imposed assessment for clear error. See Lee, 950 F.3d at 444. But where, as here, a party challenges the court’s adherence to proper procedures—i.e., whether it considered enumerated factors as required by stat- ute—we review the court’s decisions de novo. See United States v. Wilcher, 91 F.4th 864, 869 (7th Cir. 2024) (reviewing de novo whether the district court adequately explained the de- fendant’s sentence). We generally will not find error in a court’s explanation if it adopts the PSR without objection, the PSR “contains an ad- equate basis to support the fine,” and “it is clear that the court considered the relevant statutory factors.” United States v. McLaughlin, 760 F.3d 699, 706 (7th Cir. 2014). The government contends that we can divine the court’s rationale for the amount of the assessment because the court adopted the PSR without objection, and the PSR reported that Johnson had $40,000 in retirement savings. Although a court can use retire- ment funds to satisfy a judgment, United States v. Sayyed, 862 F.3d 615, 619–20 (7th Cir. 2017), we have no indication that that is what the court intended here. The mere existence of the retirement funds does not establish that the district court con- sidered the relevant factors under § 3572(a)(1)—particularly in light of the court’s finding that Johnson lacked the means to pay $5,000 under the JVTA. For the same reason, the court’s statement that it consid- ered the relevant statutory factors does not suffice to justify the assessment. We notice that the amount matches the non- 8 No. 23-3251

discretionary $5,000 assessment that the JVTA requires for non-indigent defendants. This creates an appearance that the court used the JVTA as a benchmark for an appropriate as- sessment without any explanation instead of considering Johnson’s individualized circumstances. The government suggests another rationale for the court’s AVAA assessment: because the AVAA assessment takes prior- ity over most other financial penalties, § 2259A(d)(2), the court reasonably required Johnson to pay only this higher- priority penalty. But the statute requires an AVAA assessment to be disbursed before most other financial penalties; it says nothing about prioritizing the imposition of any penalty. More to the point, even assuming the court could properly consider the order of disbursements in setting the amount of an assessment, we again have no indication it did so here. We emphasize that we take no position on the propriety of a $5,000 assessment in this case. The court, however, must provide a reasoned explanation of its assessment that recon- ciles the amount with its other findings. III. We therefore VACATE the AVAA assessment and order a LIMITED REMAND for the district court to reconsider the as- sessment and explain the amount it elects to impose.