United States v. Johnson

640 F.3d 195, 2011 U.S. App. LEXIS 9548, 2011 WL 1775383
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 11, 2011
Docket09-4293
StatusPublished
Cited by164 cases

This text of 640 F.3d 195 (United States v. Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Johnson, 640 F.3d 195, 2011 U.S. App. LEXIS 9548, 2011 WL 1775383 (6th Cir. 2011).

Opinion

OPINION

KAREN NELSON MOORE, Circuit Judge.

James Johnson was convicted of conspiracy to commit bank fraud and sentenced by the district court to one day of incarceration and three years of supervised release. His supervised release was revoked, however, after he was convicted in *199 state court of aggravated robbery and voluntary manslaughter. He also admitted to possessing and discharging a firearm during the commission of the robbery. When imposing sentence upon revocation of supervised release, the district court sentenced Johnson to thirty-six months of imprisonment, which constituted a fifteen-month upward departure from the advisory Guidelines range of fifteen to twenty-one months. The district court also ordered that the sentence run consecutively to Johnson’s twelve-year sentence for his state convictions.

Johnson appeals on the grounds that the sentence imposed by the district court upon revocation of his supervised release was both procedurally and substantively unreasonable. Reviewing for procedural reasonableness, we conclude that the district court properly calculated the Guidelines range, appropriately considered the applicable sentencing factors and the arguments of the parties, and provided an adequate explanation for the sentence imposed, including a specific reason for the upward departure. We also conclude that, under the totality of the circumstances, Johnson’s sentence is substantively reasonable. Therefore, we AFFIRM the sentence imposed by the district court.

I. BACKGROUND

On November 9, 2006, Johnson entered a plea of guilty pursuant to a plea agreement to one count of conspiring to commit bank fraud. The plea agreement stipulated that Johnson conspired with two others — 'Travelle Grigsby and Frances Roberson — to commit bank fraud by producing and using counterfeit checks. At the direction of Grigsby, the leader of the conspiracy, Roberson would produce the counterfeit checks, and the three co-conspirators would go together to stores such as Lowe’s and Home Depot to make large purchases using the checks.

Although the Guidelines range for the bank-fraud conviction was eighteen to twenty-four months, the district court departed downward and sentenced Johnson to only one day of imprisonment, to be followed by thirty-six months of supervised release. The supervised-release sentence included three months to be served in a halfway house and six months of home confinement. Johnson served his one-day sentence, and, on March 27, 2007, began his term of supervised release. Initially, Johnson’s adjustment to supervised release was satisfactory — he successfully completed his halfway-house and home-confinement terms, and, in December 2007, he completed a substance-abuse program. He was also employed full-time until November 2007 and pursuing a degree in engineering at “Cincinnati State.”

Johnson’s supervised release was revoked, however, in September 2009 after he participated in an aggravated robbery that resulted in the shooting death of the robbery victim. On June 20, 2008, two days after the incident, Johnson was arrested and charged with aggravated murder. While in the custody of the Cincinnati Police Department, Johnson admitted to possessing and discharging a .40-caliber Smith & Wesson semiautomatic handgun during the commission of the robbery. After Johnson’s arrest, the grand jury of the Hamilton County Court of Common Pleas issued a three-count indictment against him: Count One charged him with aggravated murder with two specifications, Count Two charged him with voluntary manslaughter with two specifications, and Count Three charged him with aggravated robbery with one specification. On January 29, 2009, Johnson entered a plea of guilty to voluntary manslaughter with a firearm specification, and aggravated rob *200 bery with a firearm specification. Johnson was sentenced on February 25, 2009, to a total of twelve years in the Ohio Department of Corrections.

On June 24, 2008, based on Johnson’s arrest and his admission to possessing and discharging a firearm, the U.S. Probation Department filed a petition for a warrant and revocation of supervised release. Following Johnson’s state convictions, a supervised-release-violation report was prepared alleging that Johnson violated two mandatory conditions of his federal supervised release: 1) the condition to “not commit another federal, state, or local crime,” violated by virtue of his state convictions, and 2) the condition to “not possess a firearm or destructive device,” violated by virtue of his admission to possessing and discharging a handgun during the robbery. Supervised Release Violation Report (“SRVR”) at ¶¶ 1-6. The report classified the violation conduct as Grade A and Johnson’s criminal-history category as level II. Based on these factors, Johnson’s advisory Guidelines range was calculated to be fifteen to twenty-one months of imprisonment. The report also noted that; pursuant to 18 U.S.C. § 3583(e)(3), Johnson could be sentenced to no more than three years in prison upon revocation of supervised release because his original federal offense of conviction was a Class B felony. See 18 U.S.C. § 3583(e)(3). Additionally, the report advised that, pursuant to Application Note 4 of the U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 7B1.4 (2009), because Johnson’s original sentence was the result of a downward departure, an upward departure for the revocation sentence may be warranted. It also noted that, pursuant to U.S.S.G. § 7B1.3(f), any sentence imposed upon revocation of supervised release should run consecutively to any other sentence of imprisonment. In light of the relevant policy statements and the nature of Johnson’s violations, the report recommended that Johnson be sentenced to thirty-six months of imprisonment, the statutory maximum, and that the sentence run consecutively to his state sentence.

At his hearing before the district court, Johnson did not challenge any of the facts in the SRVR and admitted to violating the conditions of his supervised release. When the court asked whether Johnson wished to make a statement or present any information, Johnson, through counsel, requested a sentence within the fifteen to twenty-one months Guidelines range, to run concurrently with his state sentence. Johnson argued that a concurrent, Guidelines-range sentence was appropriate because of his low criminal-history category and the efforts he made on supervised release to better himself. Johnson also noted that his underlying federal conviction did not involve firearms or violence, but was a fraud-related crime for which he received a four-level reduction for playing a minimal role in the offense. In light of these considerations, he argued that additional punishment beyond his twelve-year sentence for his state offenses was unnecessary. Finally, Johnson noted that he had significant community and family support, and presented two of his cousins and his grandmother to speak on his behalf.

When Johnson’s counsel described the circumstances of Johnson’s underlying fraud offense, and the reduction he received for his minimal role, the district court responded, “You know, he didn’t seem to learn from his experience, did he?” Sent. Tr. at 6.

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Cite This Page — Counsel Stack

Bluebook (online)
640 F.3d 195, 2011 U.S. App. LEXIS 9548, 2011 WL 1775383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-ca6-2011.