United States v. Michael Johnson

451 F.3d 1239
CourtCourt of Appeals for the Eleventh Circuit
DecidedJune 13, 2006
Docket19-14498
StatusPublished
Cited by168 cases

This text of 451 F.3d 1239 (United States v. Michael Johnson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh 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. Michael Johnson, 451 F.3d 1239 (11th Cir. 2006).

Opinion

PER CURIAM:

Michael Johnson appeals his 140-year sentence for producing and distributing child pornography in violation of 18 U.S.C. § 2251(a) and § 2252A(a)(l), respectively. He contends that we should vacate his sentence and remand to the district court for re-sentencing because the sentence: (1) is excessive and constitutes cruel and unusual punishment under the Eighth Amendment; and (2) is unreasonable in *1241 light of the factors listed in 18 U.S.C § 3553(a). We affirm.

I.

On January 12, 2005, Johnson was indicted for two counts of production of child pornography in violation of § 2251(a) (Counts 1 and 2), one count of possession of child pornography in violation of § 2252A(a)(5)(B) (Count 3), and one count of distribution of child pornography in violation of § 2252A(a)(l) (Count 4). On April 8, 2005, Johnson pleaded guilty to Counts 1, 2, and 4, and the district court dismissed Count 3 upon motion of the government.

During the plea hearing, the government presented facts that it represented it could prove at trial and Johnson agreed to nearly all of those facts. The government stated that between January 2002 and January 2005, Johnson took sexually explicit photographs of two minor males, identified as Victim 1 and Victim 2. The government stated that Johnson produced computer images from the photographs and sent them to a recipient via America Online.

The pre-sentence investigation report (PSI), prepared by a parole officer, elaborated on Johnson’s offenses. According to the PSI, investigators determined that Johnson had produced at least 150 pornographic images and transmitted an unknown number of the images through the Internet. Investigators determined that Johnson had photographed Victim 1 from about the age of 8 until the age of 15, and Victim 2 between the ages of 14 and 16. Johnson had also photographed a third boy, Victim 3, between the ages of 13 and 14. Additionally, investigators concluded that Johnson had either possessed or transmitted at least twenty-four videos of children engaging in sexually explicit conduct.

In an interview with investigators, Victim 1 stated that he met Johnson when he was about 7 years old and that the two began engaging in sexual activity when the victim was 8. The sexual activity continued for about six years and the incidents were “too many to count.” Victim 1 reported that when he was about 9 years old, Johnson introduced him to two other adult men for sexual purposes. Victim 1 said he was given drugs by one or more of the men to induce him into having sex. Investigators determined that Johnson had taken an explicit photograph of Victim 1 with the men.

Because Johnson’s offenses involved separate harms to three victims, the PSI treated the offenses as separate count groups. The PSI recommended that Johnson’s base offense level of 32 be increased to 46 because of the special characteristics of his conduct toward the three victims. The PSI advised that Johnson’s offense level be decreased 3 levels to 43 for acceptance of responsibility and assisting authorities in the investigation pursuant to United States Sentencing Guidelines § 3El.l(a) (Nov.2004).

The PSI also noted that Johnson had prior convictions in state court for two counts of engaging in a lewd act in the presence of a child. Notwithstanding that, the PSI showed that Johnson had no criminal history points, which established a criminal history category of I. The PSI recommended that Johnson’s criminal history category be increased to V pursuant to U.S.S.G. § 4B1.5(a)(2) because he was a repeat and dangerous sex offender against minors. With a total offense level of 43 and a criminal history category of V, the PSI stated that the appropriate guidelines range was life in prison. Pursuant to U.S.S.G. § 5G1.2(d), the PSI recommended that Johnson receive the statutorily authorized maximum sentence for each count and that the sentences run consecutively. That would amount to 50 years as *1242 to Count 1, 50 years as to Count 2, and 40 years as to Count 4, for a total of 140 years.

At the August 25, 2005 sentencing proceeding, the district court decided that the PSI had correctly calculated Johnson’s offense level and criminal history category and that his guidelines range was life in prison. Alternatively, the court noted that the PSI might have erred in considering as part of Johnson’s relevant conduct his actions toward Victim 3, who was not mentioned in the indictment. The court noted that if the PSI had erred, Johnson’s guidelines range would be 360 months to life. If that were the case, however, the court stated that an upward departure would be warranted pursuant to U.S.S.G. § 2G2.2 due to the seriousness and duration of the exploitation and Victim l’s age when the exploitation began, among other factors.

The district court stated that Johnson “need[ed] to be incarcerated, if for no other reason, to protect young children.” The court stated that it was “mindful and thinking of the victims in this case, and the psychological damage that has been inflicted on them and the turmoil that they will experience as they grow older.” The court considered 18 U.S.C. § 3553(a), including “the need to protect the public, to deter violations of the law, to reflect the seriousness of the offense of conviction, and to provide appropriate punishment.” It sentenced Johnson to the statutorily authorized maximum sentences of 50, 50, and 40 years for each of the three counts with the terms to run consecutively for a total of 140 years.

II.

Johnson contends that we should vacate his sentence because it is excessive and constitutes cruel and unusual punishment under the Eighth Amendment. He characterizes his 140-year sentence as “grossly” disproportionate since he had only been convicted of two prior offenses, for which he successfully completed terms of probation. He argues that he is not the type of recidivist contemplated in Ewing v. California, 538 U.S. 11, 20, 123 S.Ct. 1179, 1185, 155 L.Ed.2d 108 (2003).

Johnson did not raise this issue in the district court. However, we note that the court did not give him an opportunity to object to his sentence or the manner in which it was imposed, which is required by United States v. Jones, 899 F.2d 1097, 1103 (11th Cir.1990), overruled on other grounds sub nom. United States v. Morrill, 984 F.2d 1136 (11th Cir.1993) (en banc). Despite the court’s Jones error, we will not remand on that basis because Johnson has not raised the Jones error on appeal and because the record is sufficient for meaningful appellate review of his Eighth Amendment argument. See United States v. Cruz, 946 F.2d 122, 124 n. 1 (11th Cir.1991).

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451 F.3d 1239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-michael-johnson-ca11-2006.