United States v. Johnson ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
U N ITED STA TES O F A M ER ICA,
Plaintiff - Appellee,
No. 05-5232
v. (D.C. No. 89-CR-137-01-HDC)
(N.D. Okla.)
R OBER T L. JO H N SO N ,
Defendant - Appellant.
OR D ER AND JUDGM ENT *
Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **
Defendant-Appellant Robert L. Johnson appeals his sentence imposed
following the government’s request to revoke his supervised release. M r. Johnson
stipulated to the allegations in the government’s request and waived a revocation
hearing. The district court sentenced M r. Johnson, on four counts, to four
consecutive terms of 24 months imprisonment, totaling 96 months. Our
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
jurisdiction arises under 28 U .S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
Background
M r. Johnson was convicted on October 3, 1989, following a jury trial, on
two counts of money laundering and sixty counts of engaging in transactions w ith
property derived from unlawful activity. After a direct appeal, his convictions as
to twenty-eight of those counts were vacated. M r. Johnson was then re-sentenced
to 188 months on two counts, and another 120 months, to run concurrently, on the
remaining thirty-two counts. A three year term of supervised release was
imposed in each count, all running concurrently.
O n June 7, 2002, M r. Johnson’s supervised release term commenced. On
October 31, 2002, the government petitioned the court to revoke his supervised
release, relying on two separate grounds. The government contended that M r.
Johnson (1) committed a federal crime, viz., possession of a controlled substance,
in violation of the supervised release’s M andatory Condition and Condition
number seven, and (2) failed to submit a truthful and complete written report to
his probation officer within the first five days of each month in violation of
Standard Condition number two. See I Aplt. App. Doc. 112 at 2-3. M r. Johnson
confessed to the allegations, and on M arch 24, 2003, the district court revoked the
supervised release as to one term of his original conviction, and sentenced him to
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an 18 month term of imprisonment, followed by an 18 month term of supervised
release on that count. The supervised release as to the other counts was tolled
pending M r. Johnson’s imprisonment.
On September 21, 2004, M r. Johnson’s next supervised release term began.
Nearly a year later, on September 8, 2005, the government again requested that
his supervised release be revoked, again asserting several grounds therefor,
including: (1) violation of the M andatory Condition prohibiting the commission
of another federal, state, or local crime; (2) violation of Standard Condition
number two by failing to submit a truthful and complete written report to his
probation officer within the first five days of each month; (3) violation of Special
Condition number seven, which prohibited engaging in solicitation of money
during the term of supervised relief; (4) violation of Special Financial Condition
number two, which prohibited making an application for a loan or entering any
credit arrangement without consulting with his probation officer; and (5) violation
of Special Condition number eight, which prohibited altering or destroying
records of computer use. I Aplt. App. Doc. 31. As noted above, M r. Johnson
stipulated to those allegations and waived a hearing. The district court revoked
all terms of his supervised release, and sentenced him to a total of 96 months
imprisonment – 24 months to run concurrently on four counts. This appeal
followed.
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Discussion
On appeal, M r. Johnson contends that his sentence was neither reasoned nor
reasonable, and thus must be reversed. He argues that the consecutive ordering of
the terms was improper because the district court erred (1) in taking into account
the circumstances of the original offense, and (2) in relying upon M r. Johnson’s
(admitted) drug use, which w as a basis for the first revocation. W e are
unpersuaded.
As there is no applicable sentencing guideline for the sentence to be
imposed after a violation of supervised release, we review under a “plainly
unreasonable” standard. United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.
2004). W e will not reverse a sentence if the record demonstrates that the sentence
is reasoned and reasonable. Id. (internal quotations omitted). The district court’s
factual findings are reviewed for clear error and its legal conclusions are reviewed
de novo. Id.W hen a person violates a condition of his or her supervised release, the
district court has the pow er to revoke the term of supervised release and impose
prison time. See 18 U.S.C. § 3583(e)(3). 1 Of course, as we have repeated
numerous times, the district court must also consider the factors set forth in
various subsections of 18 U.S.C. § 3553(a). Furthermore, the district court must
1
The maximum term of imprisonment involving each count of an
underlying class D felony, such as we have here, is tw o years. 18 U.S.C. §
3853(e)(3).
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also consider the policy statements located in Chapter 7 of the Sentencing
Guidelines. United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992) (citing 18
U.S.C. § 3553(a)). These policy statements are advisory in nature, and they
recommend a range of imprisonment upon revocation of supervised release.
See United States Sentencing Guidelines M anual § 7B1.4 (2002); Kelley, 359
F.3d at 1305.
M r. Johnson argues that the district court may not consider the original
offense (or an offense involved in the first revocation) because the factors a
district court may consider under 18 U.S.C. § 3583(e) do not include 18 U.S.C.
§ 3553(a)(2)(A ). Section 3553(a)(2)(A ) concerns the need for the sentence “to
reflect the seriousness of the offense, promote respect for the law, and to provide
just punishment for the offense.” Aplt. Br. at 10 (alterations omitted). He
concedes that § 3583(e) does reference § 3553(a)(1) which provides for
consideration of “the nature and circumstances of the offense and the history and
characteristics of the defendant.” He argues that the omission of § 3553(a)(2)(A )
is intentional, and that § 3553(a)(1) w as included merely to capture the history
and characteristics of the defendant, rather than “the nature and circumstances of
the offense.” W e know of no canon of statutory construction that would permit us
to ignore part of the language in § 3553(a)(1) which includes “the nature and
circumstances of the offense.” M oreover, we think the district court could
certainly consider the offenses in question under any number of factors including
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(1) the history and characteristics of the defendant, (2) deterrence, and (3)
protection of the public. 18 U.S.C. § 3553(a)(1) & (2)(B), (C).
There is no requirement that the district court consider each factor listed in
§ 3553(a) individually before issuing a sentence. United States v. Rines, 419 F.3d
1104, 1107 (10th Cir. 2005). That is to say, it is not our job to mandate that the
district court perform a ritual in order to establish compliance. Id. To the
contrary, all we require is that the district court consider the relevant factors en
masse and indicate its reasoning for imposing the sentence. Kelley, 359 F.3d at
1305.
Upon through review of the entire record, we are more than satisfied that
the district court adequately considered all the necessary factors in sentencing M r.
Johnson for violating the conditions of his supervised release. The court
expressly stated that it considered the Chapter 7 policy statements in arriving at
its sentence. See II Aplt. Supp. App. at 4. In addition, it explained the other
factors it took into account, including M r. Johnson unabated inability to comply
with the law as w ell as the need to for deterrence and protection of the public
from his future crimes. Id. at 7-8.
The district court properly considered the factors it was bound to review
under 18 U.S.C. §§ 3583(e) and 3553(a), and accordingly, we conclude that M r.
Johnson’s 96 month sentence was reasoned and reasonable under the
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circumstances presented in this case.
AFFIRM ED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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