United States v. Johnson

876 F. Supp. 2d 1272, 2012 WL 1964100
CourtDistrict Court, M.D. Florida
DecidedMay 31, 2012
DocketCase No. 6:10-cr-131-Orl-28GJK
StatusPublished

This text of 876 F. Supp. 2d 1272 (United States v. Johnson) is published on Counsel Stack Legal Research, covering District Court, M.D. Florida 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, 876 F. Supp. 2d 1272, 2012 WL 1964100 (M.D. Fla. 2012).

Opinion

ORDER

JOHN ANTOON II, District Judge.

Defendant Franklin Johnson entered a plea of guilty to Count Three of the Indictment charging him with Possession of a Firearm by a Prohibited Person, in violation of 18 U.S.C. §§ 922(g)(1), 922(a)(2), and 924(e)(1). In preparation for sentencing, Mr. Johnson raised objections to 43 of the 108 paragraphs contained in the Presentence Report (PSR). During a protracted sentencing hearing, all but two of the objections were disposed by rulings from the bench. The remaining objections consist of Mr. Johnson’s arguments that: (1) because prosecution of two prior offenses were initiated by citations and not arrests, they should not be scored as separate offenses under U.S. Sentencing Guidelines Manual (“U.S.S.G.”) § 4A1.2; and (2) his convictions for Aggravated Assault on a Police Officer and for Principal in Sale/Delivery of Cocaine within 1000 Feet of a Church are not qualifying offenses for designation as an Armed Career Criminal under 18 U.S.C. § 924(e)(1). Having considered the arguments of counsel and the relevant authority provided, [1274]*1274Mr. Johnson’s objections must be overruled.

A.

Mr. Johnson objects to points- for four prior sentences imposed on the same day being included in totaling his criminal history category. It is apparent from the PSR that all four offenses were committed at different times. Mr. Johnson was arrested on June 6, 1999, for Driving While License Suspended. On October 19, 1999, he was issued a citation for.Unlawful Possession of Controlled Substance, and on October 25, 1999, he was issuéd another citation for Driving While License Suspended. Finally, on December 19, 1999, Mr. Johnson was arrested for Driving Under the Influence. Mr. Johnson was sentenced for all four of these offenses on June 26, 2000. As a result of the first offense of Driving With Suspended License, he was sentenced to one year of probation. For the other three offenses, he was sentenced to 60 days in jail.

When a defendant has multiple prior sentences imposed the same day, it is necessary to determine whether each offense should be scored separately. In making this determination, courts are instructed by U.S.S.G. § 4A1.2, which provides: “Prior sentences always are counted separately if the sentences were imposed for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).” If a defendant has previously been sentenced on the same day for multiple offenses, but there had been no intervening arrest, the offenses shall be counted as a single prior sentence. Id.

The issue is whether in applying U.S.S.G. § 4A1.2 the citations issued by law enforcement officers for the second and third offenses should be counted as intervening arrests — and therefore separate offenses — in calculating Mr. Johnson’s criminal history category. The two circuits deciding this question have reached opposite results. In United States v. Morgan, 354 F.3d 621 (7th Cir.2003), a case very similar to the one at hand, the Seventh Circuit decided that in calculating criminal history points, there should be no distinction between criminal charges initiated by citation and those initiated by arrest. In rejecting the defendant’s argument that a citation issued for ’ driving without a license should not count as an arrest in applying U.S.S.G. § 4A1.2, the court concluded that “a traffic stop is an ‘arrest’ in federal parlance.” Id. at 623-24. In the view of the court, it was not necessary for the defendant to have been taken to jail for the stop to count as a separate offense. Id.

The Ninth Circuit disagreed with Morgan in United States v. Leal-Felix, 665 F.3d 1037 (9th Cir.2011). Relying substantially on Fourth and Fifth Amendment precedent, the court found that a citation for driving with a suspended license did not constitute an arrest for purposes of determining a defendant’s criminal history category. In doing so, the court observed that the defendant had not been “told he was ‘under arrest,’ he was not transported to the police station, and he was not booked into jail.” Id. at 1044. “Absent one of these hallmarks of a formal arrest,” the court determined that it was error to find that a defendant had been arrested for purposes of totaling his criminal history points. Id.

Judge Rawlinson dissented, disagreeing with the majority’s application of Supreme Court authority in defining “arrest” to exclude traffic citations. In his view, something less than a formal arrest, including a traffic stop, meets the definition of arrest contemplated by U.S.S.G. § 4A1.2. Judge [1275]*1275Rawlinson also pointed out that treating offenses charged by citation as non-events, “seriously undermines the recidivism consideration of the guidelines and understates the criminal history of repeat offenders.” Id. at 1048. I agree.

The facts of this case differ slightly from those in Morgan and Leal-Felix, both of which dealt only with whether citations for driving license violations should be included in the criminal history score. This ease involves not only a Driving with Suspended License citation, but also with an Unlawful Possession of Controlled Substance violation for which a citation was issued. The former charge is at least a second degree misdemeanor under Florida law, punishable by sixty days incarceration, while the controlled substance offense is a first degree misdemeanor with a maximum sentence of one year incarceration. Although it is common for driving offenses to be charged by way of citation, it is very rare for a drug-related charges to be initiated in this manner. In fact, this case is the first time the Court has been made aware of this practice-one that apparently is within the discretion of Daytona Beach police officers.

I agree with the reasoning of the Seventh Circuit in Morgan and with Judge Rawlinson in Leal-Felix. Additionally, I would add that not scoring offenses initiated by citation is an affront to the credibility of the Guidelines to the extent they were enacted to encourage imposition of similar sentences for similarly situated defendants. It makes little sense that the conviction of a defendant in Daytona Beach should not be counted because an officer decided to issue a citation, while a defendant convicted of the same offense who was arrested in Cocoa Beach would have points scored for that conviction because the officer arrested the defendant instead of issuing a citation. Under such a scheme, whether offenses result in points added to a defendant’s criminal history category might turn not just on the policies of various municipal police departments but also perhaps on the whim of the officer who apprehends the defendant.

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Related

Shepard v. United States
544 U.S. 13 (Supreme Court, 2005)
United States v. Pantle
637 F.3d 1172 (Eleventh Circuit, 2011)
United States v. Leal-Felix
665 F.3d 1037 (Ninth Circuit, 2011)
United States v. Zan Morgan
354 F.3d 621 (Seventh Circuit, 2003)
Johnson v. United States
176 L. Ed. 2d 1 (Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
876 F. Supp. 2d 1272, 2012 WL 1964100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-johnson-flmd-2012.