United States v. Johnson , 340 F. App'x 309 ( 2009 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 09a0551n.06
No. 05-6877 FILED
Aug 11, 2009
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
WILLIE E. JOHNSON, )
)
Defendant-Appellant. )
)
BEFORE: BOGGS, Chief Judge, and ROGERS and WHITE, Circuit Judges.
WHITE, Circuit Judge. Defendant Willie E. Johnson (Johnson) pleaded guilty of
possession of cocaine base with intent to distribute (Count 1), 21 U.S.C. § 841(a)(1), and possession
of a firearm in furtherance of the drug-trafficking crime alleged in count 1 (Count 2), 18 U.S.C. §
924(c). The district court sentenced Johnson to 15 years’ imprisonment on the cocaine-base count
and 5 years’ imprisonment on the firearm count. On appeal, Johnson challenges the procedural
reasonableness of his sentence and argues that the district court erred reversibly by denying him
allocution. The Government concedes that the district court erred by denying Johnson his right of
allocution. We vacate defendant’s sentences and remand for resentencing consistent with this
opinion.
I
As part of a plea agreement, Johnson agreed to cooperate fully with the United States
Attorney’s office, the Violent Crimes Task Force, the Bureau of Alcohol, Tobacco and Firearms, and
other federal, state and local law enforcement agencies; the Government agreed to consider whether
the cooperation warranted its filing a motion to reduce sentence pursuant to U.S.S.G. § 5K.1.1 for
substantial assistance. After sentencing, the court dismissed Counts 3 and 4 (possession of a firearm
during and in relation to the drug trafficking crime alleged in Count 1, 18 U.S.C. § 924(c), and felon
in possession of a firearm, 18 U.S.C. § 922(g), respectively) pursuant to the Government’s motion.
The presentence report (PSR) calculated Johnson’s base offense level as 32. Johnson’s
classification as a career offender under U.S.S.G. § 4B1.1(a) resulted in an offense level of 37 and
a criminal history category of VI. Following subtraction of three points for acceptance of
responsibility, Johnson was left with a total offense level of 34, and a criminal history category of
VI. Under the 2003 edition of the Guidelines Manual, Johnson’s sentencing range for Count 1 was
262-327 months, with a statutory minimum sentence of 120 months. As to count 2, the PSR noted
that Johnson’s Guidelines range was the mandatory minimum of 60 months’ imprisonment under
18 U.S.C. § 924(c), to run consecutively to any term of imprisonment imposed for Count 1. The
PSR calculated Johnson’s total sentencing range to be 322-387 months.
The Government moved for a downward departure under § 5K.1.1, for Johnson’s substantial
assistance. At sentencing, the Government recommended that Johnson’s offense level under Count
1 be reduced from 34 to 30 or 29. The district court accepted the Government’s recommendation
-2-
for a downward departure, and stated that it would use as its starting point the minimum sentence
for an offense level of 29 and a criminal history category VI, i.e., 151 months.
The court sentenced Johnson on November 17, 2004 (pre-United States v. Booker1), to 15
years’ (180 months) imprisonment for possession of cocaine base with intent to distribute, and 5
years’ (60 months) imprisonment for possession of a firearm in furtherance of a drug trafficking
crime, to be served consecutively. Defendant contends (and the Government agrees) that at the
initial sentencing the district court incorrectly assumed that the combined Guidelines range of 322-
387 months applied only to Count 1 (cocaine base) and did not include the 60-month sentence for
Count 2.
Johnson appealed his sentence. In the interim, on the Government’s motion to remand, this
court vacated Johnson’s sentence and remanded for resentencing under Booker.
On resentencing, after much discussion regarding whether the court had mistakenly added
60 months to the sentence twice, the district court imposed the same sentence – fifteen years for
possession of cocaine base with intent to distribute, and five years for possession of a firearm in
furtherance of a drug-trafficking crime, to be served consecutively. This appeal ensued.
I
Allegations of a complete denial of the right of allocution are reviewed de novo. United
States v. Wolfe, 71 F.3d 611, 614 (6th Cir. 1995); United States v. Carter, 355 F.3d 920, 926 n.3 (6th
Cir. 2004) (acknowledging Wolfe’s de novo standard, but noting that that standard is reserved for
allegations of complete denial of allocution, i.e., review is for plain error “where the allegation is not
1
543 U.S. 220 (2005).
-3-
that there was a complete denial [of allocution] but only an inappropriate limitation”). The Federal
Rules of Criminal Procedure require that before imposing sentence, the court must “address the
defendant personally in order to permit the defendant to speak or present any information to mitigate
the sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). “Denial of allocution is reversible error.” Carter,
355 F.3d at 926 (citing United States v. Riascos-Suarez, 73 F.3d 616, 627 (6th Cir. 1996)); see also
United States v. Pelaez, 930 F.2d 520, 522-24 (6th Cir. 1991).
The record shows that Johnson was denied his right of allocution at the December 5, 2005
resentencing hearing. Although the court and Johnson interacted several times, these exchanges
concerned the initial calculation of Johnson’s applicable Guidelines range and the court’s reasons
for choosing a 240-month term of imprisonment. The resentencing hearing transcript shows that,
immediately prior to imposing sentence, the court and counsel had a lengthy side-bar discussion
(transcribed), after which the court did not invite Johnson to speak personally on his own behalf.
The Government concedes that this was reversible error and that Johnson’s sentence must be
vacated, and the case remanded for resentencing.
II
Defendant also asserts that the district court erred by mis-calculating an appropriate sentence
range under the Guidelines, and by failing to articulate the basis for the sentence it imposed at
resentencing. .
Both sentencing transcripts are long and difficult to follow. It appears that by the end of the
resentencing proceedings, the court recognized its earlier error and understood that the Guidelines
range for Count 1, without adding the 60 months for Count 2, was 151 - 188 months. See United
-4-
States v. Franklin, 499 F.3d 578, 584 (6th Cir. 2008) (noting that the Guidelines instruct that a
sentence for a count with a mandatory consecutive sentence is to be imposed independently of other
counts). However, it does seem that the court struggled to articulate a rationale to support the
original sentence. In any event, because this case must be remanded for resentencing, these
additional arguments need not be addressed except to state that on remand the court should begin
the sentencing procedure anew, and clearly articulate both the Guidelines range under which it is
operating, and the reasons for choosing a particular sentence. Any arguments Johnson chooses to
put forth based on United States v. Gully, 619 F. Supp. 2d 633 (N.D. Iowa 2009), Kimbrough v.
United States, 552 U.S. 85 (2007), or Spears v. United States, 129 S. Ct. 840 (2009), can be
presented on remand.2
We VACATE defendant’s sentences and REMAND for resentencing consistent with this
opinion.
2
Johnson filed a Rule 28(j) additional citation motion in propria persona during the pendency
of this appeal, citing Gully, Kimbrough, and Spears, supra. The Supreme Court in Spears vacated
a decision of the Eighth Circuit that held that the district court had no authority to substitute on
policy grounds a different ratio for the then-applicable 100:1 crack-to-powder sentencing ratio. 129
S. Ct. at 842. Clarifying Kimbrough, the Spears Court noted that sentencing judges possess authority
to reject categorically the sentencing range prescribed by the Guidelines, even in “a mine-run case
where there are no ‘particular circumstances’ that would otherwise justify a variance from the
Guidelines’ sentencing range.” Id. at 844 (quoting Kimbrough, 128 S. Ct. at 576). Spears
recognized that district courts possess the “authority to vary from the crack cocaine Guidelines based
on a policy disagreement with them, and not simply based on an individualized determination that
they yield an excessive sentence in a particular case.” 129 S. Ct. at 843.
-5-