United States v. Johnnie Long

United States Court of Appeals
For the Eighth Circuit
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No. 15-2765
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Johnnie Earl Long
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 31, 2016
Filed: July 21, 2016
[Unpublished]
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Before RILEY, Chief Judge, COLLOTON and SHEPHERD, Circuit Judges.
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PER CURIAM.
Johnnie Earl Long pled guilty to one count of conveying false and misleading
information regarding the distribution of biological weapons, in violation of 18 U.S.C.
§ 1038. He appeals his 46 month sentence imposed by the district court.1 We affirm.
In July 2013, just after his divorce was finalized in June, Long mailed an
envelope with a harmless, white powdery substance to his ex-wife’s attorney. The
envelope also included a note spelling out “U R DEAD” in stickers. The attorney
suspected the letter had come from a Jeffrey Selvog because two weeks prior to
receipt of the envelope, the attorney had received a threatening email that appeared
to be from Selvog. A later investigation proved, however, that Long had sent the
threatening email using “anonymizing” software that made it appear that the email
came from Selvog’s email account. Nine days after sending that envelope, Long
placed a fake explosive device in the driveway of the attorney’s neighbor. Long
spelled out the attorney’s name in stickers on the device. Long placed similar devices
in his own driveway and Selvog’s driveway.
In November 2013, Long mailed envelopes with a white powdery substance to
six government officials in Pine County, Minnesota. As a result of these letters, the
Pine County courthouse was evacuated and a full hazardous material protocol
response was conducted. Subsequent lab analysis of the powder revealed that it was
a common pesticide but not in a sufficient quantity that would realistically cause harm
to humans. When Long was questioned after this incident, he maintained his
innocence. Following his interview, Long twice feigned his own kidnapping by
unknown assailants and called in false tips to a police tip line in an attempt to lead
officers to suspect others, including Selvog, of wrong-doing.
1
The Honorable Ann D. Montgomery, United States District Judge for the
District of Minnesota.
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In December 2013, Long was interviewed by police authorities and eventually
confessed to sending the letters, placing the fake explosive devices, and fabricating
the abduction claims. Long was arrested immediately after the interview and placed
into custody. While in custody in December 2013, Long attempted to hire another
prisoner, who was about to be released, to send additional threatening letters
containing white powder so it would appear that Long, who was in jail, was not the
source of the earlier letters. This other inmate immediately notified the police.
Long was indicted on seven counts related to mailing threats. He entered into
a plea agreement, pleading guilty to one count of conveying false and misleading
information regarding the distribution of biological weapons, in violation of 18 U.S.C.
§ 1038. Long raised no objections to the presentence investigation report’s factual
statement or the Sentencing Guidelines calculation, which resulted in a Guidelines
range of 37 to 46 months imprisonment. At the sentencing hearing, the court
acknowledged receiving a letter from Long and victim impact statements from several
individuals. The court stated it had read Long’s letter and considered his comments
therein, then noted, “Although I think you feel very badly you’re in this situation, I
don’t think you’ve fully appreciated how terrorizing this was to many of the victims.”
The court noted Long’s arrest did not put an end to his actions, and this concerned the
court about Long’s future behavior. The court acknowledged Long’s clean
disciplinary record while detained, but the court found “a longer period of reflection
about the effects of [his] behavior is required under the circumstances.” The court
found the 46 month sentence to be “sufficient but not more than necessary to comply
with the statutory objectives for sentencing as . . . set forth in [18 U.S.C. § 3553(a)].”
Long appeals the sentence, arguing it is substantively unreasonable because the
sentence is longer than necessary to carry out the purposes of 18 U.S.C. § 3553(a).
We review the substantive reasonableness of a district court’s sentence for abuse of
discretion. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en
banc). “A district court abuses its discretion when it (1) ‘fails to consider a relevant
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factor that should have received significant weight’; (2) ‘gives significant weight to
an improper or irrelevant factor’; or (3) ‘considers only the appropriate factors but in
weighing those factors commits a clear error of judgment.’” Id. (quoting United
States v. Kane, 552 F.3d 748, 752 (8th Cir. 2009)). Our review is “narrow and
deferential,” and “it will be the unusual case when we reverse a district court
sentence–whether within, above, or below the applicable Guidelines range–as
substantively unreasonable.” Id. at 464 (quoting United States v. Gardellini, 545 F.3d
1089, 1090 (D.C. Cir. 2008)). “We apply a presumption of reasonableness to a
within-Guidelines-range sentence because it ‘recognizes the real-world circumstance
that when the judge’s discretionary decision accords with the Commission’s view of
the appropriate application of § 3553(a) in the mine run of cases, it is probable that the
sentence is reasonable.’” United States v. Coleman, 635 F.3d 380, 382 (8th Cir. 2011)
(quoting Rita v. United States, 551 U.S. 338, 350-51 (2007)).
Long argues “several important facts . . . presented to the Court, through the
pre-sentence report, submissions by Mr. Long, and allocution . . . were not considered,
and those that were considered, received insufficient weight in the determination of
the sentence.” Long claims the facts the court failed to consider or gave insufficient
weight were his stable work history, the fact that he had no disciplinary violations
while in county jail, and the statements made in his letter to the court which he
believed appropriately expressed remorse for his actions.
The district court stated it considered all of the relevant section 3553(a) factors
when it determined the 46 month sentence to be appropriate. It specifically addressed
several of Long’s arguments at sentencing. For instance, the court considered the
comments Long made in his letter, however the court found Long was not expressing
remorse for his actions and the harm it caused the victims, rather he was expressing
remorse for the fact that he was facing criminal penalties. Also, the court discussed
Long’s good behavior while detained, but the court then explained why it believed the
46 month sentence to be necessary, including that even after his arrest Long continued
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to perpetuate the crime. See United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir.
2011) (“Simply because the district court weighed relevant factors . . . more heavily
than [the defendant] would prefer does not mean the district court abused its
discretion.”). We hold the district court did not commit a clear error of judgment in
weighing the sentencing factors nor did the court fail to consider a factor that should
have received significant weight. Accordingly, Long has failed to rebut the
presumption that his sentence was substantively reasonable.
We affirm.
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