United States v. Johnson

In the

United States Court of Appeals
For the Seventh Circuit

No. 10-1737

U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.

H ENRY D. JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Central District of Illinois.
No. 3:04-cr-30046-JES-BGC-1—Jeanne E. Scott, Judge.

A RGUED D ECEMBER 14, 2010—D ECIDED M ARCH 24, 2011

Before P OSNER, R IPPLE and R OVNER, Circuit Judges.
R IPPLE, Circuit Judge. A jury in the United States
District Court for the Central District of Illinois con-
victed Henry Johnson of several crimes related to the
possession and sale of crack cocaine. The district court
sentenced Mr. Johnson to life in prison. In his initial
appeal, we affirmed the convictions, but we reversed
the sentence and remanded to allow the district court
to take account of the Supreme Court’s intervening de-
2 No. 10-1737

cision in Kimbrough v. United States, ___ U.S. ___, 128 S. Ct.
558 (2007). See United States v. Johnson, 584 F.3d 731, 740
(7th Cir. 2009). On remand, the district court again im-
posed a sentence of life imprisonment, and Mr. Johnson
now appeals. We conclude that our prior remand did
not permit relitigation of the drug quantity. We further
conclude that the district court procedurally erred be-
cause it did not determine, after considering the sen-
tencing factors under 18 U.S.C. § 3553(a), that resen-
tencing Mr. Johnson under his guideline range of
natural life in prison was “sufficient, but not greater
than necessary, to comply with § 3553(a)(2). Id. § 3553(a).
Therefore, we must vacate and remand for this deter-
mination.

I
BACKGROUND
A. Prior Proceedings
We presume familiarity with the facts as stated in our
previous opinion. After he was arrested in Quincy,
Illinois for selling crack cocaine and marijuana to a gov-
ernment informant, Mr. Johnson was charged with oper-
ating a drug trafficking conspiracy. The jury convicted
him of engaging in a continuing criminal enterprise in
violation of 21 U.S.C. § 848 and nine other drug-related
offenses.
The prescribed statutory minimum for the continuing
criminal enterprise conviction was twenty years’ impris-
onment; the maximum was life. At the sentencing
No. 10-1737 3

hearing, the district court attributed over ten kilograms
of crack to Mr. Johnson. Because of its 100:1 crack-to-
powder cocaine ratio, the United States Sentencing Guide-
lines prescribed that Mr. Johnson’s offense level war-
ranted a punishment of life imprisonment. The district
court sentenced Mr. Johnson accordingly. Johnson, 584
F.3d at 733.
In his first appeal, Mr. Johnson principally challenged
his convictions, but he also included in his brief three
sentences which disputed the district court’s calculation
of the quantity of drugs attributed to his convictions.
Specifically, Mr. Johnson asserted, the evidence had not
established whether he had dealt in crack or powder
cocaine. Had he been dealing the latter, his offense
level would have been much lower.
While the original appeal was pending, we determined
that the court would benefit from the assistance of
amicus counsel, and we therefore appointed counsel to
file a brief on behalf of Mr. Johnson. During this period,
the Supreme Court decided Kimbrough, which held that
“the district court may sentence a crack offender below
the guidelines range if it believes the 100:1 ratio results
in a greater sentence than is necessary under the sen-
tencing factors set forth in 18 U.S.C. § 3553(a).” Johnson,
584 F.3d at 740. Prior to that holding, the law of our
circuit had required district courts to apply the ratio
regardless of whether the district court thought its ap-
plication unreasonable in any specific instance. See id.
(citing United States v. Taylor, 520 F.3d 746, 746-47 (7th Cir.
2008); United States v. Miller, 450 F.3d 270, 275 (7th Cir.
2006)).
4 No. 10-1737

After preserving the arguments from Mr. Johnson’s
first brief, the amicus, like Mr. Johnson, principally chal-
lenged the convictions. The brief did not contest the
quantity of crack cocaine attributed to Mr. Johnson, but
it did request a remand to allow the district court to
decide whether it believed application of the crack-to-
powder ratio appropriate in Mr. Johnson’s case. The
Government agreed with this request.
We affirmed Mr. Johnson’s convictions and accepted
the parties’ agreement that Mr. Johnson should be
resentenced in light of Kimbrough. See Johnson, 584 F.3d
at 740. We explained that the remand was necessary
“so that the district court may consider whether the
disparate treatment of crack versus powder cocaine
under the guidelines . . . renders his life sentence unrea-
sonable.” Id. Our opinion made no mention of Mr. John-
son’s contention regarding the drug-quantity calculation.

B. Proceedings Before the District Court on Remand
On remand, Mr. Johnson asked the district court to
reconsider the quantity of drugs attributed to him. The
court refused, for three reasons: the scope of the remand
did not permit the challenge; the law-of-the-case doc-
trine precluded relitigation of the issue; and Mr. Johnson
waived the contention by not raising it adequately in
his first appeal.
Mr. Johnson next urged the district court to disregard
the Guidelines’ 100:1 crack-to-powder ratio. He con-
tended that the negative effects of crack and powder
No. 10-1737 5

cocaine are virtually identical, that the ratio leads to
harsher sentences for low-level dealers than for major
drug traffickers and that the Department of Justice
believes that Congress should eliminate the ratio. He
requested the court to impose a sentence of twenty
years’ imprisonment—the statutory mandatory mini-
mum sentence for a continuing criminal enterprise con-
viction, see 21 U.S.C. § 848(a). According to Mr. Johnson,
such a sentence would be “sufficient but not greater
than necessary to achieve the purposes of sentencing
articulated in 18 U.S.C. [§] 3553.” R.195 at 11.
In evaluating Mr. Johnson’s contentions, the court
recognized that “an argument can be made that the
powder cocaine is at least approximating the evil of the
crack cocaine.” Id. at 42. It also noted that
the House of Representatives of the Congress
has passed a bill recently that would do away
with the disparity between powder cocaine and
cocaine base or crack. However, the United States
Senate, it is my understanding, has passed a
bill that would change the ratio from 100 to 1 to
20 to 1.
The entire Congress hasn’t agreed on anything
as of this moment, but it looks like there is some
movement afoot to at least reduce the disparity
between the two drugs.
Id. at 43.
In light of these inconclusive developments, the court
determined that it should not deviate from the Guide-
6 No. 10-1737

lines: “[E]ven though I recognize that I could disregard the
guideline range with respect to the calculation of the
cocaine and the crack cocaine and the disparity, I don’t
think it is appropriate to do so at this time.” Id. at 48.
In the court’s view, “the more prudent approach is to let
Congress do whatever it chooses to do in the end . . . .
[T]he more prudent thing is to wait until that hap-
pens rather than to have each judge in America just
winging it, doing what he or she thinks ought to be
the way it comes out.” Id. at 44.
The court also expressed its concern that, by departing
from the ratio in Mr. Johnson’s case, it would be creating
a disparity between Mr. Johnson and “those people
who are locked into sentences who, at this point any-
way, cannot get back in front of a court for re-sentencing.”
Id. at 42. Whereas these other people “are stuck with
tremendous sentences,” the court explained, Mr. Johnson
“would get a much lower” one. Id. Such disparity could
“create[] certain disciplinary problems in the prison
population.” Id. at 43.
Next, the court referenced the sentencing factors listed
in 18 U.S.C. § 3553(a), partially by adopting its discus-
sion of those factors from Mr. Johnson’s first sentencing
hearing. After reiterating its concern that deviating
from the ratio would create sentencing disparities, the
court discussed the details of the crime: Mr. Johnson
dealt “a tremendous quantity of drugs” and was “not a
low[-]level dealer.” Id. at 45. His criminal activity in
the Quincy area lasted for ten years, and Mr. Johnson, as
leader of a gang, was “insulated” from easy detection and
No. 10-1737 7

capture. Id. at 45-46. Moreover, Mr. Johnson organized
gang meetings, assigned responsibilities to other
members, moved gang operations when police were
approaching and “meted out” punishments to errant
underlings. Id. at 46. The court directed Mr. Johnson to
“[t]hink about all the young people in the Quincy area
who became addicted to cocaine because of your activity”
and observed, “This is a serious bunch of crimes, that’s
why the guideline range was so high.” Id. at 47.
Finally, the court repeated that Congress, not the
court, should remedy any injustice in Mr. Johnson’s life
sentence. It predicted that, to ameliorate unduly harsh
sentences for crack offenses, “there will be some
remedial action taken by the Congress and Sentencing
Commission concerning cocaine base and powder
cocaine in terms of that disparity and how they are
counted.” Id. The court even stated that it wished
to “hold[] out hope” to Mr. Johnson that the disparity
eventually would be resolved, id., and hinted that
Mr. Johnson deserved future relief: “[A]t such time as
the Congress and the Commission act, it’s likely you
will have relief at some juncture thereafter.” Id. at 48.
Again, however, the court emphasized that “the more
prudent approach is to wait until that happens” and then
“give the opportunity to everyone who is under such
sentences to be re-sentenced as well.” Id. at 47. The
court then reimposed the original sentence of natural
life, stating, however, that it was doing so “regrettably.”
Id. at 48.
8 No. 10-1737

II
DISCUSSION
A. Standard of Review
We review de novo Mr. Johnson’s contention that
the district court failed to appreciate the advisory nature
of the Sentencing Guidelines. United States v. Carter,
530 F.3d 565, 577 (7th Cir. 2008).

B. Scope of the Remand
Mr. Johnson contends that our prior remand entitled
him to relitigate the drug quantities attributed to him.
We cannot accept this contention. The remand should be
viewed in the context of the first appeal; there, Mr. John-
son’s only reference to the drug-quantity calculation
was the cursory, three-sentence argument at the end of
his brief. We often decline to address underdeveloped
and meritless contentions, see, e.g., United States v.
Husband, 312 F.3d 247, 251 (7th Cir. 2002), and we fol-
lowed that course in our earlier opinion. We remanded
Mr. Johnson’s case to the district court to consider one
issue only: “the disparate treatment of crack versus
powder cocaine” in the Guidelines. Johnson, 584 F.3d at
740. In doing so, we “identifie[d] a discrete, particular
error that [could] be corrected on remand without the
need for a redetermination of other issues.” Husband,
312 F.3d at 251 (quotation marks omitted). We there-
fore implicitly limited the question on remand to whether
the district court would have imposed a different sen-
tence in light of Kimbrough.
No. 10-1737 9

Mr. Johnson asserts, however, that the district court
was required to recalculate the amount of crack cocaine
attributable to him in order to conduct its Kimbrough
analysis. To be sure, drug quantities are relevant to the
impact of the crack-to-powder ratio. At high quantities,
for example, the ratio makes no difference in the out-
come of the sentencing range. See United States v. Corner,
598 F.3d 411, 414 n.† (7th Cir. 2010) (describing case
in which a defendant had “distributed so much cocaine
that the statutory maximum sentence . . . would have
been life imprisonment even if all of his sales had been
cocaine powder”). In this case, however, the district
court already had determined the drug quantities at
the first sentencing, and we left those calculations undis-
turbed. Accordingly, we agree with the district court
that Mr. Johnson was not entitled to a new determination
of the drug quantities attributed to him.

C. Presumption of Reasonableness
Mr. Johnson next challenges the procedure by which
the district court again determined to sentence him to
life in prison. According to Mr. Johnson, the district
court should not have presumed that the life sentence
prescribed by the Guidelines was reasonable without
first inquiring into whether the sentence conformed to
18 U.S.C. § 3553(a). It did not satisfy, he contends, its
independent obligation in this regard by reference to
possible future legislation.
The presumption of reasonableness of a sentence
within the range prescribed by the Guidelines “applies
10 No. 10-1737

only on appellate review,” not to the sentencing court,
which “may not presume that a within-Guidelines sen-
tence is reasonable.” United States v. Rollins, 544
F.3d 820, 839 (7th Cir. 2008) (citing Rita v. United States, ___
U.S. ___, 127 S. Ct. 2456, 2465 (2007)); see also United
States v. Schmitt, 495 F.3d 860, 864 (7th Cir. 2007). It cer-
tainly is not improper for a district court to espouse
the penal philosophy reflected in the Guidelines. See
Rollins, 544 F.3d at 840. Nevertheless, to ensure that
the court avoided a simple presumption that a within-
Guidelines sentence was reasonable, we also must be
able to infer that the court, in exercising its discretion,
determined that the sentence conformed with the parsi-
mony principle of § 3553(a): The sentence must be “suf-
ficient, but not greater than necessary, to comply
with” the sentencing purposes set forth in § 3553(a)(2).
18 U.S.C. § 3553(a); see also Rollins, 544 F.3d at 840.1

1
See also United States v. Dorvee, 616 F.3d 174, 182 (2d Cir.
2010) (analyzing § 3553(a)’s parsimony clause in the context of
determining whether the district court presumed that a
Guidelines-range sentence was reasonable); United States v.
Chavez, 611 F.3d 1006, 1010 (9th Cir. 2010) (explaining that
§ 3553(a)’s parsimony clause expresses “an overarching
principle [that] necessarily informs a sentencing court’s con-
sideration of the entire constellation of section 3553(a) factors”
(alteration in original, quotation marks omitted)); United
States v. Martinez-Barragan, 545 F.3d 894, 898-99, 904-05 (10th
Cir. 2008) (analyzing whether a sentence was procedurally
unreasonable by considering whether it conformed to § 3553(a)’s
parsimony principle); United States v. Williams, 475 F.3d 468, 476-
(continued...)
No. 10-1737 11

Generally, even when statements made during sen-
tencing call into question whether the district court
appreciated the advisory nature of the Guidelines, we
can resolve doubts in favor of the court when its applica-
tion of the § 3553(a) factors assures us that the sentence
was imposed in conformity with the parsimony clause.
For example, in United States v. Rollins, 544 F.3d 820 (7th
Cir. 2008), we reviewed a district court’s refusal to “vary
[from the Guidelines] in advance of Congress” because
it did not “believe that trial judges are in a position to
set policy.” Id. at 840 (quotation marks omitted). The
district court in Rollins also explicitly stated, however,
after considering the § 3553(a) factors, that the sentence
it imposed was “sufficient but not greater than neces-
sary to comply with the basic aims of sentencing.” Id.
From these remarks, we were able to conclude that the
court did not believe itself limited by “ ‘an outside con-
straint on [its] discretion that [it] was not free to set
aside.’ ” Id. (quoting Schmitt, 495 F.3d at 865); see also
United States v. Diaz, 533 F.3d 574, 577 (7th Cir. 2008)
(concluding that a district court did not presume
the reasonableness of a within-Guidelines sentence be-
cause “[t]he court did not say that a sentence within
the guidelines range was always reasonable” and because
it emphasized that the sentence was reasonable for that
defendant in light of the § 3553(a) factors (emphasis
omitted)).

(...continued)
77 (2d Cir. 2007) (explaining that district courts must consider
the requirements of § 3553(a)’s parsimony clause in fashioning
an appropriate sentence).
12 No. 10-1737

In Mr. Johnson’s case, however, we cannot resolve
the ambiguity of the district court’s statements at
resentencing. On the one hand, the court mentioned the
§ 3553(a) factors and acknowledged that it could “disre-
gard” the Guidelines range reflecting the powder and
crack cocaine disparity. R.195 at 48. On the other hand,
when it explained that adhering to Congress’s judgment
would be “prudent,” id. at 44, the court did not explain
whether, or why, doing so was based on the individual
circumstances of Mr. Johnson’s case and was not greater
than necessary to fulfill the purposes of § 3553(a). In fact,
the district court told Mr. Johnson, “[I]t’s likely you will
have relief” once Congress does reduce the crack-to-
powder ratio. Id. at 48. If the district court believed
that Mr. Johnson would deserve “relief” from his life
sentence if the ratio were changed, then it seems unlikely
that the court believed a life sentence to be no greater
than necessary to adhere to the sentencing factors. Our
concern is heightened further by the district court’s
statement that it was reimposing the life sentence rec-
ommended by the Guidelines “regrettably,” id. This
statement strongly suggests that the district court be-
lieved that an unconstrained application of the § 3553(a)
factors would have yielded Mr. Johnson a lesser sentence.
The essence of Kimbrough is to permit district courts to
depart from the advisory ratio when its application
would result in a sentence that is “greater than necessary
to accomplish the goals of sentencing.” Kimbrough, 128
S. Ct. at 570 (internal quotation marks omitted); see id. at
576 (upholding a deviation from the ratio where the
district court “properly homed in on the particular cir-
No. 10-1737 13

cumstances of [the defendant’s] case and accorded
weight to the Sentencing Commission’s consistent and
emphatic position that the crack/powder disparity is at
odds with § 3553(a)”). Considered in their totality,
the district court’s comments create an unacceptable
risk that, in imposing a life sentence, it did not account
appropriately for the parsimony clause in the gov-
erning statute or for the individual circumstances of
Mr. Johnson’s case. See United States v. Shannon, 518
F.3d 494, 496 (7th Cir. 2008) (“A sentence is reasonable if
the district court gives meaningful consideration to the
factors enumerated in 18 U.S.C. § 3553(a) . . . .” (emphasis
added)); United States v. Ross, 501 F.3d 851, 852, 854
(7th Cir. 2007) (per curiam) (vacating sentence where
the district court engaged in an “apparent weighing of
§ 3553(a) factors” but suggested that it could not
depart from the Guidelines range even though the sen-
tence was “too harsh in light of” the defendant’s
individual circumstances and “greater than is necessary
to deal with the drug problem” (quotation marks omitted)).
Moreover, the district court’s analysis of possible sen-
tencing disparities between Mr. Johnson and other
criminal defendants was misguided. The court was con-
cerned that, if it departed from the ratio in
Mr. Johnson’s case, it would be creating a disparity be-
tween Mr. Johnson and “those people who are locked
into sentences who, at this point anyway, cannot get
back in front of a court for re-sentencing.” R.195 at 42.
It further expressed the concern that such disparities
could negatively impact prison discipline.
14 No. 10-1737

Section 3553(a)(6), however, instructs sentencing
courts to consider only “the need to avoid unwarranted
sentence disparities among defendants with similar
records who have been found guilty of similar conduct.”
Here, the district court analyzed disparities between
Mr. Johnson and others, not in light of the similarity of
offense and personal characteristics, but in light of the
legal inability of other defendants to take advantage of
Kimbrough. See Kimbrough, 128 S. Ct. at 574 (acknowledging
that “some departures from uniformity [are] a necessary
cost of the remedy” and instructing district courts that
“sentencing practices in other courts” and potential
disparities “must be weighed against the other § 3553(a)
factors and any unwarranted disparity created by the
crack/powder ratio itself”). More fundamentally, it was
the duty of the district court to impose a sentence
in conformity to the law as it stood on the day of sen-
tencing. Its concern for disparities with sentencing deci-
sions imposed under an earlier sentencing regime were
not relevant.

Conclusion
Accordingly, we vacate and remand for a redeter-
mination of the sentence in light of the parsimony
principle of 18 U.S.C. § 3553(a). Other aspects of the
sentence are not to be revisited.
V ACATED and R EMANDED

3-24-11