United States v. Johnson ( 2009 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 11, 2009
FOR THE TENTH CIRCUIT
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-3328
(D.C. No. 5:09-CR-40007-JAR-1)
ROOSEVELT B. JOHNSON, (D. Kan.)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and HARTZ, Circuit Judges.
Roosevelt B. Johnson appeals an order of the district court denying his
request for release pending trial for one count of possessing a firearm following a
felony conviction. He claims that the district court’s decision to detain him
pending trial is based on an incorrect consideration of the applicable statutory
factors. We exercise jurisdiction under 18 U.S.C. § 3145(c) and affirm.
*
This panel has determined unanimously that oral argument would not
materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2);
10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral
argument. This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and
10th Cir. R. 32.1.
I.
On January 22, 2009, Mr. Johnson was stopped and detained on a city street
when a police officer observed Mr. Johnson’s companion committing a possible
violation of a city ordinance. A subsequent search revealed that Mr. Johnson had
a semi-automatic pistol in his sock. Mr. Johnson claimed he had just seen the gun
under a bush, picked it up to prevent a child from finding it, and was on his way
to give it to a nearby storekeeper.
Previously, Mr. Johnson had been convicted of second-degree murder and
aggravated robbery, sentenced to a 154-month term of imprisonment, and later
paroled. Accordingly, the January incident led to a federal indictment for
possessing a firearm after a conviction of a crime punishable by imprisonment for
a term exceeding one year in violation of 18 U.S.C. § 922(g).
At his detention hearing, Mr. Johnson asserted that if released he would
reside with his fiancee and her children. And, although unemployed, he was
seeking employment and had plans to enroll in a college program. He also
maintained that he was developing a stop-the-violence program in his community
and he had already arranged for drug treatment. Rather than detention, he
suggested home detention with electronic monitoring and frequent contacts with a
pretrial-services officer.
The district court found that no conditions of release would ensure
Mr. Johnson’s appearance at trial and the safety of the community. This
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determination was based on the following findings: Mr. Johnson’s previous
conviction, his alleged absconding from supervision and drug use during his term
of parole, lack of any documented adult employment, history of substance abuse;
and absence of strong ties to the community. The district court also observed
“the way that Mr. Johnson had secreted the firearm in his sock is indicative not of
someone who had just found a firearm and someone who intended to get rid of it
immediately, but someone who intended to hide it for some other use.” Supp’l
App. at 17-18. The district court, however, acknowledged that Mr. Johnson had
taken some positive steps toward self-improvement while he was in state custody.
II.
Under the Bail Reform Act, a defendant must be detained pending trial if a
judicial officer finds “that no condition or combination of conditions will
reasonably assure the appearance of the person as required and the safety of any
other person and the community.” 18 U.S.C. § 3142(e). In making this
determination, the court must consider the following factors: “(1) the nature and
circumstances of the offense charged”; “(2) the weight of the evidence against the
person”; “(3) the history and characteristics of the person”; and “(4) the nature
and seriousness of the danger to any person or the community that would be
posed by the person’s release.” Id. § 3142(g). We review de novo mixed
questions of law and fact concerning the detention decision. United States v.
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Cisneros, 328 F.3d 610, 613 (10th Cir.2003). We review the district court’s
findings of fact for clear error. Id.
III.
On appeal, Mr. Johnson does not assert a specific procedural, factual, or
legal error in the district court proceedings. Instead, he claims the district court
reached the wrong conclusion. To support his position, he emphasizes that his
earlier crimes occurred in 1996 when he was nineteen and that he assisted the
prosecution in the case against his co-defendants. And at present, he is not
charged with a crime of violence or using or possessing the firearm in connection
with another offense. Moreover, he came forward with a practicable pretrial
living arrangement with his fiancée and explained his possible employment
prospects, academic intentions, marriage plans, and potential volunteer projects.
Mr. Johnson’s arguments do not undercut the validity of the district court’s
ruling.
Considering all of the evidence and the § 3142(g) factors, Mr. Johnson has
not shown error in the district court’s ruling. AFFIRMED.
ENTERED FOR THE COURT
PER CURIAM
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