United States v. Johnson

• Court: Court of Appeals for the Second Circuit
• Decided: April 25, 2023
• Docket: 20-2656
• Status: Unpublished

Opinion

20-2656 (L) United States v. Johnson

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 25th day of April, two thousand twenty-three.

PRESENT: JOHN M. WALKER, JR., RICHARD C. WESLEY, BETH ROBINSON, Circuit Judges. _________________________________________

UNITED STATES OF AMERICA,

Appellee,

v. No. 20-2656(L); 21-14(con)

MARLON JOHNSON JR.,

Defendant-Appellant. _________________________________________ FOR APPELLANT: Elizabeth M. Johnson, Law Office of Elizabeth M. Johnson, New York, NY.

FOR APPELLEE: Trini E. Ross, United States Attorney, (Monica J. Richards, Assistant United States Attorney, on the brief), United States Attorney’s Office for the Western District of New York, Buffalo, NY.

Appeal from a final judgment of the United States District Court for the

Western District of New York (Skretny, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the district court’s judgment entered on

December 16, 2022, is VACATED and the case REMANDED for resentencing.

Defendant-Appellant Marlon Johnson, Jr. appeals from a sentence imposed

after he was found guilty of violating the terms of his supervised release in

connection with a prior conviction. Johnson and the government agree that the

district court erred in imposing his sentence. They part ways on the proper

disposition by this Court. We assume the parties’ familiarity with the underlying

facts, procedural history, and arguments on appeal, to which we refer only as

necessary to explain our decision.

In July 2019, while serving a term of supervised release in connection with

a 2014 federal sentence for his underlying convictions, Johnson was arrested by

2 New York state authorities for, among other things, possession of firearms. This

arrest led to state criminal charges in New York, as well as federal charges for

violating the terms of his federal supervised release.

In November 2020, following an evidentiary hearing, the district court

found Johnson guilty of three charges relating to possession of firearms in

violation of his conditions of supervised release. The court subsequently

sentenced Johnson to three months’ imprisonment, and Johnson appealed.

“The standard of review on the appeal of a sentence for violation of

supervised release is now the same standard as for sentencing generally: whether

the sentence imposed is reasonable.” 1 United States v. McNeil, 415 F.3d 273, 277 (2d

Cir. 2005). A district court may exceed its discretion if it commits procedural error,

such as “selecting a sentence based on clearly erroneous facts,” Gall v. United States,

552 U.S. 38, 51 (2007), or basing its exercise of discretion on an error of law, United

States v. Vargas, 961 F.3d 566, 570 (2d Cir. 2020).

The parties agree that the district court erred in imposing the sentence in

two ways—the court incorrectly indicated that Johnson was in federal custody at

the time of sentencing and that his federal sentence would begin immediately, and

1In quotations from caselaw and the parties’ briefing, this order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.

3 it failed to indicate whether its sentence would be concurrent with or consecutive

to the anticipated state court sentence.

In fact, at the time the district court sentenced Johnson on the federal

violations of his supervised release conditions, Johnson had been in New York

State custody for 17 months in connection with the then-unresolved state charges.

The district court considered this fact in determining Johnson’s federal sentence.

But while imposing the sentence, the district court incorrectly assumed that

Johnson’s federal sentence would begin immediately, as reflected in the following

exchange:

THE DEFENDANT: . . . how would the time count when I’m not even in Federal custody?

THE COURT: Yeah. You are in Federal custody.

THE DEFENDANT: So the three months is about to count?

THE COURT: From this day forward, it goes three months forward and that’s it, then you are off Federal.

App’x 162. Actually, at the time of his federal sentencing, because Johnson

remained in primary state custody, the district court could not order that his

federal sentence commence immediately. See 18 U.S.C. § 3585(a). 2

2 On October 19, 2022, Johnson was sentenced on the state court charges to a determinate term of seven years imprisonment, which he is currently serving. He has appealed that state court sentence.

4 In addition, although both parties agree that the court apparently intended

that any federal sentence run concurrent to any state court sentence, the district

court did not expressly indicate in court that its sentence should be concurrent.

The district court’s written sentencing judgment is likewise silent on the matter.

We agree with the parties that remand is required because the sentencing

decision was based on a misapprehension of Johnson’s custody status, and the

sentence failed to address whether it would be concurrent even though it appears

the district court may have intended to impose a concurrent sentence. The dispute

on appeal is whether, as Johnson argues, we should vacate the district court’s

sentence and remand for resentencing, or whether, as the government argues, we

should remand with instructions to the district court to amend its judgment to

specify that the sentence is to run concurrently with any state sentence.

We reject the government’s position because it would require us to

substitute our best guess as to how the district court intended to exercise its

discretion for the district court’s. The district court’s misunderstanding of the facts

and law surrounding Johnson’s custody status may well have affected its overall

sentencing decision. See United States v. Montez-Gaviria, 163 F.3d 697, 703 (2d Cir.

1998) (“When the record is ambiguous as to whether a district court has allowed a

5 mistake of law to affect its sentencing decision, we have regularly remanded to

allow the court to reconsider its decision in light of our correction of the mistake.”).

And the determination whether to impose a concurrent or consecutive sentence is

for the district court, not this court, to make. 18 U.S.C. § 3584(b) 3; see United States

v. Cavera, 550 F.3d 180, 190 (2d Cir. 2008) (“Where we find significant procedural

error, one proper course would be to remand to the district court so that it can

either explain what it was trying to do, or correct its mistake and exercise its

discretion anew.”).

* * *

Accordingly, we VACATE the district court’s sentencing judgment and

REMAND for resentencing in light of the above considerations.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

3 The parties’ respective arguments as to the proper framework for determining whether to impose a concurrent or consecutive sentence in this case should be directed in the first instance to the district court.