United States v. Charlette Johnson ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-4282
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:10-cr-00093-BR-1)
Submitted: November 26, 2014 Decided: December 2, 2014
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Charlette Dufray Johnson, Appellant Pro Se. Kristine L. Fritz,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Following a second remand for resentencing, Charlette
Dufray Johnson appeals her convictions and 121-month sentence
imposed following her guilty plea to two counts of making false,
fictitious, or fraudulent claims for disaster relief, in
violation of 18 U.S.C. § 287 (2012) (“Counts One and Four”);
eight counts of wire fraud, in violation of 18 U.S.C. § 1343(2012) (“Counts Seven through Fourteen”); and two counts of
aggravated identity theft, in violation of 18 U.S.C. § 1028A
(2012) (“Counts Fifteen and Sixteen”). In this appeal, Johnson
seeks to challenge her convictions on Counts Seven through
Fourteen, as well as the sentence imposed during the second
resentencing. For the reasons that follow, we affirm.
As an initial matter, we conclude that most of
Johnson’s appellate arguments are barred by operation of the
mandate rule. In our most recent opinion, we affirmed Johnson’s
conviction and sentence in part, vacated her sentence in part,
and remanded for the limited purpose of permitting the district
court (1) to consider the impact, if any, of Alleyne v. United
States, 133 S. Ct. 2151 (2013), on Johnson’s enhancement imposed
pursuant to U.S. Sentencing Guidelines Manual (“USSG”) § 3C1.3
(2010), and (2) to clarify its reasons for imposing a more
severe sentence on remand. This limited mandate foreclosed
consideration, or reconsideration, of any issues previously put
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to rest by our prior opinions in Johnson’s criminal case—whether
those issues were rejected on appeal or could have been but were
not previously raised. See United States v. Susi, 674 F.3d 278,
283 (4th Cir. 2012); cf. Doe v. Chao, 511 F.3d 461, 465 (4th
Cir. 2007); Volvo Trademark Holding Aktiebolaget v. Clark Mach.
Co., 510 F.3d 474, 481 (4th Cir. 2007).
Applying these principles, we find that two of
Johnson’s appellate arguments fall within the scope of the
mandate and are therefore reviewable in this appeal. These
permissible issues include Johnson’s arguments that (1) her
enhancement under USSG § 3C1.3 violates Alleyne and Apprendi v.
New Jersey, 530 U.S. 466 (2000), and (2) the district court
judge abused his discretion in declining to recuse himself from
the second remand hearing. We find no exception to the mandate
rule applicable to Johnson’s remaining appellate challenges, and
we therefore decline to consider these arguments. See United
States v. Pileggi, 703 F.3d 675, 682 (4th Cir. 2013) (describing
exceptions).
We review de novo Johnson’s Apprendi-based challenge
to the USSG § 3C1.3 enhancement. See United States v. Mackins,
315 F.3d 399, 405 (4th Cir. 2003). Under Apprendi and its
progeny, facts that increase a criminal penalty beyond the
prescribed statutory maximum must be charged in the indictment
and proven to a jury beyond a reasonable doubt. Apprendi, 530
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U.S. at 490. Alleyne recently extended the holding of Apprendi
to include facts increasing the mandatory minimum sentence. See
Alleyne, 133 S. Ct. at 2160-63.
Section 3C1.3 provides for a three-level enhancement
to the defendant’s base offense level “[i]f a statutory
sentencing enhancement under 18 U.S.C. § 3147 applies.” Section
3147 specifies that an individual convicted of an offense
committed on pretrial release “shall be sentenced . . . to . . .
a term of imprisonment of not more than ten years . . .
consecutive to any other sentence of imprisonment.” See 18
U.S.C. § 3147(1) (2012). To implement the statutory
enhancement, the Guidelines commentary direct the sentencing
court to impose a total sentence within the Guidelines range
attributable to the underlying offense committed while on
pretrial release, apportioned “between the sentence attributable
to the underlying offense and the sentence attributable to the
enhancement.” USSG § 3C1.3 cmt. n.1.
We find no error in the district court’s conclusion
that neither USSG § 3C1.3 nor its underlying statutory
enhancement violates Alleyne, as they do not implicate a
mandatory minimum sentence. Moreover, as the district court
previously concluded, Johnson’s enhancement does not violate
Apprendi, as Johnson was sentenced within the statutory maximum
applicable to her offenses. See United States v. Promise, 255
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F.3d 150, 157 n.5 (4th Cir. 2001); see also United States v.
Randall, 287 F.3d 27, 30-31 (1st Cir. 2002) (holding that § 3147
and implementing Guidelines enhancement did not violate Apprendi
where defendant received sentence below statutory maximum for
offense of conviction, and suggesting that structure for
implementing enhancement “effectively moots any Apprendi
challenge to the application of § 3147” because it requires
imposition of apportioned within-Guidelines sentence).
Turning to Johnson’s claim of judicial bias, we review
for abuse of discretion a district court’s denial of a motion
for recusal under 28 U.S.C. § 455(a) (2012). United States v.
Lentz, 524 F.3d 501, 530 (4th Cir. 2008). A district judge
should recuse himself if his “impartiality might reasonably be
questioned.” 28 U.S.C. § 455(a). However, “judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion.” Liteky v. United States, 510 U.S. 540, 555
(1994). Rather, a judge’s opinions formed during the current or
prior proceedings—even if expressed through remarks critical or
even hostile to a party—are not grounds for recusal “unless they
display a deep-seated favoritism or antagonism that would make
fair judgment impossible.” Lentz, 524 F.3d at 530 (internal
quotation marks omitted).
Contrary to Johnson’s assertions, neither the
resentencing transcript nor the record as a whole provide any
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evidence that the district judge harbored bias against Johnson.
Rather, Johnson’s argument appears to be based primarily on her
disagreement with the judge’s substantive rulings. In short,
our review of the record reveals no basis to question the
experienced trial judge’s impartiality.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional
process.
AFFIRMED
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