United States v. Shelton Johns , 332 F. App'x 737 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
6-26-2009
USA v. Shelton Johns
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-4507
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"USA v. Shelton Johns" (2009). 2009 Decisions. Paper 1119.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 08-4507
UNITED STATES OF AMERICA
v.
SHELTON JOHNS,
Appellant
On Appeal From the United States District Court
For the District of Delaware
(D.C. Criminal. Action No. 1-06-cr-00047-001)
District Judge: Honorable. Gregory M. Sleet
Argued May 12, 2009
Before: AMBRO, ROTH, and ALARCÓN,* Circuit Judges.
(Filed: June 26, 2009)
____________
Christopher J. Burke (ARGUED)
Office of the United States Attorney
1007 North Orange Street, Suite 700
Wilmington, DE 19899-0000
Counsel for Appellee
*
Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the
Ninth Circuit, sitting by designation.
Paul M. Perlstein (ARGUED)
Perlstein Law
P.O. Box 834
Doylestown, PA 18901-0000
Counsel for Appellant
____________
OPINION OF THE COURT
____________
ALARCÓN, Circuit Judge:
Appellant Shelton Johns appeals from the sentence imposed by the District Court
following a remand by this Court because of the violation of Rule 35 of the Federal Rules
of Criminal Procedure. See United States v. Johns (“Johns I”), 282 Fed. Appx. 123, 125-
26 (3d Cir. 2008). We will affirm because we conclude that the original sentence imposed
by the District Court was reasonable under 18 U.S.C. § 3553(a).
I
On November 17, 2006, Johns pled guilty to a one-count felony indictment of being
a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).
The Presentence Investigation Report calculated the Sentencing Guidelines range at 70 to
87 months. On March 23, 2007, the District Court imposed a below-the-guidelines
sentence of 60 months of incarceration and three years of supervised release. The District
Court did not sign or enter a written judgment. One week later, on March 30, 2007, it
issued a “Notice of Resentencing” sua sponte.
At the resentencing hearing, the District Court informed counsel that “the Court is
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not going to entertain discussion from either the government or defense.” The Court then
stated:
I have reconvened the sentencing hearing in this case, because,
after pronouncing sentence, it occurred to me that I had
pronounced my sentence without giving effect to the sentiments
expressed by Mr. Johns, Mr. Perlstein [defense counsel], and Ms.
Woody, that is Mr. Johns’ mother, during the [March 23, 2007]
sentencing hearing. In other words, I had made a mistake in
imposing a sentence of 60 months upon Mr. Johns. Upon
reflecting further on the issue, I have determined that the
appropriate sentence for Mr. Johns is 36 months, rather than the
60 months I imposed during the sentencing hearing.
I believe that a sentence of 36 months more appropriately
comports with the underlying goals of sentencing, which include
punishment, deterrence, and rehabilitation. Moreover, when
applying the 3553(a) factors to Mr. Johns, specifically those
factors that direct the Court to consider (1) the nature and
circumstances of the offense that Mr. Johns committed in the
present case, and (2) the history and characteristics of Mr. Johns,
the Court concludes that a sentence of 36 months adequately
achieves those goals of sentencing while taking into account
those factors I have just described earlier.
(Emphases added.)
II
The Government filed a notice of appeal from the 36-month sentence set forth in
the District Court’s judgment entered on April 20, 2007. Johns filed a notice of cross-
appeal. On June 17, 2008, this Court vacated the sentence. It held that “[b]ecause the
district court did not resentence Johns on or before April 3, 2007, [it] lacked jurisdiction to
sentence Johns to 36 months’ imprisonment” in light of Federal Rule of Criminal
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Procedure 35. Johns I, 282 Fed. Appx. at 125-26. The District Court was directed to
reimpose the initial 60-month sentence. Following remand, the District Court imposed the
original 60-month sentence. Johns timely appealed.
III
Johns’ sole argument on appeal is that the 60-month sentence is unreasonable
because the District Court stated that it had made a mistake in imposing it. We disagree.
Prior to imposing the original 60-month sentence at the first sentencing hearing, the
District Court stated to Johns:
I have considered all of the facts and circumstances of your life,
insofar as they have been reported to me by others who have
written on your behalf, and will consider the statements of both
your counsel and you and others as well, that were presented in
the presentence report and raised in your sentencing
memorandum, motion for downward departure, character letters,
and statements I am about to hear, all these factors that you point
out are relevant under [18 U.S.C. §] 3553(a) and will guide me
. . . in determining the proper sentence to impose.
After imposing the original 60-month sentence, the District Court stated:
I was encouraged, as I listened to your words and witnessed your
delivery, that there may be a genuine recognition at this time of your
past misdeeds . . . .
[T]he Court is encouraged . . . by the family support that you have
received, both in person and in the form of letters . . . . I have, again,
seen some evidence of this in your statements today . . . .
The District Court’s explanation that it made a “mistake” in its sentencing decision
indicates to us that it had a change of heart regarding the original 60-month sentence.
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Rule 35(a) of the Federal Rules of Criminal Procedure provides that “[w]ithin 7 days after
sentencing, the court may correct a sentence that resulted from arithmetical, technical, or
other clear error.” Fed. R. Crim. P. 35(a). The Advisory Committee Notes caution,
however, that
[t]he authority to correct a sentence under this subdivision is
intended to be very narrow and to extend only to those cases in
which an obvious error or mistake has occurred in the sentence,
that is, errors which would almost certainly result in a remand of
the case to the trial court for further action . . . . The subdivision
is not intended to afford the court the opportunity to reconsider
the application or interpretation of the sentencing guidelines or
for the court simply to change its mind about the appropriateness
of the sentence.
Id. (Advisory Committee Notes, 1991 Amendments) (emphasis added).1
We agree with the decisions of the Second Circuit and other Circuits that Rule 35
prohibits second thoughts about sentencing decisions. See United States v. Abreu-
Cabrera, 64 F.3d 67, 73 (2d Cir. 1995) (“The district court in the instant case changed its
mind regarding the severity of [the defendant’s] sentence. As a result of Congress’ desire
to provide a finality to sentencing, such second thoughts, no matter how well intentioned
are not the sort of error that [Rule 35(a)] was designed to remedy.”) (citation omitted); see
also United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989) (“The power of a district
court to amend a sentence does not extend to a situation where the district judge simply
1
The above Advisory Committee Notes referred to Rule 35(c), which is now located at
subdivision (a). See id. (Advisory Committee Notes, 2002 Amendments).
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changes his mind about the sentence.”); United States v. Sadler, 234 F.3d 368, 374 (8th
Cir. 2000) (“the district court’s attempt to resentence Sadler under [Rule 35(a)] illustrates
an impermissible ‘change of heart as to the appropriateness of the sentence’”) (quoting
Abreu-Cabrera, 64 F.3d at 72).
In any event, we cannot consider, under the procedural posture of this case, the
District Court’s comments at the resentencing. See United States v. Smalley, 517 F.3d
208, 212-13 (3d Cir. 2008).
Furthermore, we conclude that the original sentence is reasonable under 18 U.S.C.
§ 3553(a). Following the imposition of the 60-month, below-the-guidelines sentence, the
District Court confirmed that it had considered the § 3553(a) factors and that given, among
other things, Johns’ extensive criminal history, the sentence was appropriate. We agree.
At oral argument, Johns’ counsel did not argue otherwise, conceding that he has “never
argued that 60 months is not a reasonable sentence.”
Because the 60-month sentence originally imposed in this matter was reasonable,
the judgment of the District Court will be AFFIRMED.
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