United States v. Johnson

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

Plaintiff, v. No. 20-cr-105-TSC/ZMF KEVIN JOHNSON,

Defendant.

REPORT AND RECOMMENDATION

I. BACKGROUND

On July 16, 2024, the Probation Office filed a petition notifying the Court that law

enforcement had arrested the Defendant. See U.S. Probation Office Pet. (“USPO Pet.”) 2, ECF No.

45. The government charged the defendant with unlawful discharge and possession of a firearm.

See id. The government charged the Defendant in D.C. Superior Court. See id. The judge there

held the Defendant without bond. See id. at 3. This was the Defendant’s third arrest while under

federal supervision. See id. On July 17, 2024, Judge Chutkan issued an arrest warrant and

scheduled a hearing on violation of supervised release.

On August 1, 2024, law enforcement arrested the Defendant. That same day, he appeared

before the undersigned for a return on supervised release warrant. The undersigned ordered the

detention of the Defendant. See Min. Entry (Aug. 1, 2024).

On August 8, 2024, Judge Chutkan referred this matter to the undersigned for preparation

of a Report and Recommendation. See Min. Order (Aug. 8, 2024). On October 9, 2024, the

Defendant appeared before the undersigned for a status hearing. See Min. Entry (Oct. 9, 2024).

1 The parties agreed to trail Defendant’s Superior Court case. On February 7, 2025, the Defendant

pled guilty in D.C. Superior Court to the charge of unlawful possession of firearm. See Gov.’s

Memorandum in Aid of Sentencing (“Gov.’s Memo”) 4, ECF No. 52. The D.C. Superior Court

judge sentenced Defendant to 18 months of incarceration followed by 3 years of supervised

release. See id. at 5.

On April 25, 2025, the Probation Office filed a recommendation for final revocation

hearing. See U.S. Probation Office Sentencing Recommendation (“USPO Sent’g Rec.”), ECF No.

48. On April 28, 2025, the undersigned held a status hearing. The Defendant admitted the

violations in this case. In turn, the Court ordered briefing on the Probation Office’s

recommendation.

On June 30, 2025, the undersigned held a final revocation hearing. The parties agreed that

Defendant’s conduct was a Grade B violation. See Def.’s Memorandum in Aid of Sentencing on

Revocation (“Def.’s Memo”) 12, ECF No. 50; Gov.’s Memo at 6. Given his criminal history, a

Grade B violation carries a guideline range of 18–24 months of imprisonment. See U.S.S.G.

§ 7B1.1(a)(2). The Defendant requested a sentence of time-served or a sentence concurrent,

followed by a term of supervised release. See Def.’s Memo at 14. The government and Probation

Office recommend a sentence of 24 months incarceration to be served consecutively with no

additional term of supervised release. See Gov.’s Memo at 1; see also USPO Sent’g Rec. at 1.

II. DISCUSSION

Pursuant to 18 U.S.C. § 3583, a court may “revoke a term of supervised release, and require

the defendant to serve in prison all or part of supervised release authorized by statute.” 18 U.S.C.

§ 3583(e)(3). In determining a sentence based on violation of supervised release conditions, a court

considers the factors set forth in § 3583(a)(1), (a)(2)(B)–(D), and (a)(4)–(7). See United States v.

2 Byrd, No. 21-cr-27, 2024 WL 3071088, *3–4 (D.D.C. June 4, 2024). These factors include: (1) the

nature and circumstances of the offense and defendant’s history and characteristics; (2) deterrence

of criminal conduct; (3) protection of the public from further crimes of the defendant; (4) the need

to provide defendant with educational or vocational training, medical care, or other correctional

treatment; (5) the applicable sentencing guideline range for the offense and pertinent policy

statements issued by the U.S. Sentencing Commission; (6) the need to avoid unwarranted

sentencing disparities; and (7) the need to provide restitution to any victims of the offense. See 18

U.S.C. § 3553(a)(1), (a)(2)(B)–(D), and (a)(4)–(7).

The court should not consider “the need . . . to reflect the seriousness of the offense, to

promote respect for the law, and to provide just punishment for the offense.” See id. §§ 3583(e),

3553(a)(2)(A). In Esteras v. United States, 145 S. Ct. 2031, 2041 (2025), the Supreme Court

emphasized the need to “exclude retribution from the calculus . . . [and] consider the forward-

looking ends of sentencing.” Id. But while the Court cannot consider the nature of the offense for

retribution purposes, it may inform the analysis of other factors, such as the need to protect the

public. See id. at 2043. Ultimately, a “court shall impose a sentence sufficient, but not greater than

necessary” to comply with these factors. 18 U.S.C. § 3553(a).

Here, the first factor—the Defendant’s history and characteristics—cuts both ways. The

Defendant grew up in a neighborhood afflicted by poverty and surrounded by crime. See Def.’s

Memo at 4–5. He developed mental health and substance abuse issues at a young age. Id. at 5.

Relatedly, his criminal history began in childhood and persisted well into adulthood. See Gov.’s

Memo at 7. This is his third arrest while under supervision. See Gov.’s Memo at 6; USPO Sent’g

Rec. at 2–3. He had additional problems during his period of supervision: he failed to report for

substance abuse treatment and testing several times. See USPO Sent’g Rec. at 3.

3 However, the Defendant has successfully completed supervision several times in the past.

See Def.’s Mem. at 5. And it bears noting the instant violation occurred just two months before the

Defendant’s supervision was to expire. See USPO Pet. at 1. Under the Defendant’s most recent

prior supervision, he complied with his mental health treatment and regularly submitted negative

urinalyses. See USPO Pet. at 3. Prior to his arrest, the Defendant had relatively stable housing and

employment. See Def.’s Memo at 6.

The second and fourth factors—deterrence of future crime and the need for Defendant to

receive vocational training or medical care—caution against the imposition of additional

incarceration on top of the 18-month Superior Court sentence. “Imprisonment is not an appropriate

means of promoting correction and rehabilitation.” 18 U.S.C. § 3582(a). The Defendant already

has a vocational certification, having obtained an HVAC certification, and work experience. See

Def.’s Memo at 6. Additional incarceration only delays Defendant’s entry into the workforce and

his ability to obtain treatment for his substance abuse issues. Indeed, “any imprisonment . . . could

significantly interrupt or undo his treatment progress.” United States v. Mosley, 312 F. Supp. 3d

1289, 1294 (M.D. Ala. 2018). “There is no indication of how additional punishment furthers

deterrence.” United States v. Nwenze, No. 19-cr-285, 2024 WL 4608867, at *4 (D.D.C. 2024).

But as to the third factor—the need to protect the public—“this box has [not] been

checked.” Nwenze, No. 19-cr-285, at *4. Defense reliance on Nwenze is misplaced. The defendant

in Nwenze did not possess a firearm. See id. at 2. Here, however, the Defendant brandished and

discharged a firearm several times in the air on a public street. See Gov.’s Memo at 4–5. Dubose

is similarly inapplicable. United States v. Dubose, No. 21-cr-229 (D.D.C. 2022). There, law

enforcement approached the defendant while he was alone in his vehicle. See Gov.’s Mem. in Aid

4 of Sent’g (“Gov.’s Mem.”), Dubose, No. 21-cr-229, ECF No. 26. A search of the vehicle revealed

an unlawful firearm.1 See id.

The fifth factor—applicable sentencing guideline range—cuts both ways. The guideline

range for Defendant’s violation is 18–24 months of incarceration. See U.S.S.G. § 7B1.1(a)(2). But

this range is merely a policy statement. “[T]he Commission’s purpose [in drafting the] Chapter VII

policy statements [was] to preserve the courts’ flexibility.” United States v. Hooker, 993 F.2d 898,

901 (D.C. Cir. 1993). The Defendant notes that this Court adopted a forward-looking approach

when imposing a concurrent sentence in United States v. Nwenze. See Def.’s Reply at 2. However,

in Nwenze, the defendant was under concurrent supervision in D.C. Superior Court and federal

court. See Nwenze, No. 19-cr-285, at *1. The Parole Commission had already punished Nwenze

for committing a crime on supervision, and this Court would have been “effectively repeat[ing]

the punishment.” Id. at *5. Here, the Defendant has only been sentenced for the underlying crime

itself, not for his violation of supervision.

III. CONCLUSION

For the foregoing reasons, this court recommends sentencing the Defendant to six months

of incarceration.2 Such sentence should be served consecutive to the underlying sentence. Between

1 Defense counsel cites this case and two others under their analysis of the sixth factor—avoiding sentencing disparities. See Def.’s Memo at 13. However, defense counsel provides no explanation of how a consecutive sentence creates sentencing disparities. Rather, defense counsel lists cases where a court imposed concurrent sentences and urges the Court to do the same here. That is not persuasive. And Dubose is not an apt comparison to this case. 2 The parties are hereby advised that, under the provisions of Local Criminal Rule 59.2(b) of the U.S. District Court for the District of Columbia, any party may file written objections for consideration by the district judge within fourteen days of the party’s receipt of this Report and Recommendation. The written objections must specifically identify the portion to which objection is made and the basis for such objections. The parties are further advised that failure to file timely objections to the findings and recommendations set forth in this report may waive their right of 5 the two cases, this would subject the Defendant to 24 months of imprisonment (18 months in the

underlying case + 6 months in the case here). That total would equal the high end of the guideline

range for a Grade B violation (i.e., 18–24 months). Put another way, the recommendation of this

Court could be characterized as a 24-month sentence to run consecutive with the underlying case.

The Court recommends no additional period of supervised release. The Defendant will be

subject to a lengthy period of supervision in his underlying Superior Court case. As both the

government and Probation Office agreed at final revocation hearing, there is little to gain from

dual supervision.

Digitally signed by Zia

Date: September 4, 2025 Zia M.Faruqui M.Faruqui Date: 2025.09.04 15:53:20 -04'00' ___________________________________ ZIA M. FARUQUI UNITED STATES MAGISTRATE JUDGE

appeal from an order of the District Court that adopts such findings and recommendation. See Thomas v. Arn, 474 U.S. 140, 144–45 (1985). 6