United States v. Johnson , 259 F. App'x 611 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4657
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
MALCOLM JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Marvin J. Garbis, Senior District Judge.
(1:02-cr-00417-MJG)
Submitted: November 26, 2007 Decided: December 28, 2007
Before NIEMEYER, MICHAEL, and TRAXLER, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
Francis S. Brocato, BROCATO, PRICE & JANOFSKY, LLC, Towson,
Maryland, for Appellant. Rod J. Rosenstein, United States Attorney,
James T. Wallner, Assistant United States Attorney, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following his guilty pleas to possession of a firearm
after a conviction for a felony offense, possession of an
unregistered firearm, and possession with the intent to distribute
controlled substances, the district court sentenced Malcolm Johnson
to time served, to be followed by three consecutive three-year
terms of supervised release. As a condition of his supervised
release, the court ordered Johnson to serve twenty-four months in
community confinement. Johnson appeals, arguing that the twenty-
four month term of community confinement is unreasonable, and that
the supervised release term is contrary to the statutory
requirement that supervised release terms be concurrent. The
Government asserts that Johnson’s challenge to the community
confinement condition of supervised release falls within his valid
appeal waiver, but concedes that the consecutive supervised release
terms result in an illegal sentence and are not barred by Johnson’s
appeal waiver. For the reasons that follow, we vacate Johnson’s
sentence and remand to the district court for resentencing.
A term of supervised release “runs concurrently with any
[other] term . . . [of] supervised release or parole for another
offense to which the person is subject or becomes subject during
the term of supervised release.” 18 U.S.C. § 3624(e) (2000); see
United States v. Ziskind, 471 F.3d 266, 272 (1st Cir. 2006), cert.
denied, 127 S. Ct. 1902 (2007); United States v. Hernandez-Guevara,
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162 F.3d 863, 877 (5th Cir. 1998) (providing that supervised
release terms are concurrent, even if imprisonment terms are
consecutive).
Here, the district court ran Johnson’s three three-year
terms of supervised release consecutively, contrary to the mandate
of the statute. This challenge to the legality of the sentence is
an exception to Johnson’s appeal waiver. See United States v.
Marin, 961 F.2d 493, 496 (4th Cir. 1992) (allowing review despite
waiver for claim that sentence exceeded statutory maximum or was
based on constitutionally impermissible factor). The Government
concedes that the consecutive terms resulted in an illegal
sentence, and we agree. It is therefore necessary to vacate
Johnson’s sentence and remand for resentencing.
It appears from the record that the district court began
its determination of an appropriate sentence by considering the
length of supervision. Only after stating that it was necessary to
impose a long term of supervision did the court address the
imprisonment term and the conditions of supervision. Because we
cannot say that the district court would limit the imprisonment
term to time served without the lengthy term of supervision it
imposed, we do not limit our remand to merely directing that the
terms of supervised release be concurrent. Rather, on remand, the
district court is free to revisit these issues in light of the fact
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that Johnson’s terms of supervised release must run concurrently,
rather than consecutively.
In conclusion, although we affirm Johnson’s convictions,
we vacate his sentence and remand for resentencing.* We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
*
In light of this disposition, we express no opinion as to the
reasonableness of the supervised release condition that Johnson
serve twenty-four months in community confinement.
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