In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3229
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MONTARICO C. JOHNSON,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 12 CR 40004 — J. Phil Gilbert, Judge.
____________________
ARGUED DECEMBER 9, 2013 — DECIDED JUNE 24, 2014
____________________
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
WILLIAMS, Circuit Judge. After a jury convicted him of dis-
tributing three grams of crack cocaine and being a felon in
possession of a firearm, Montarico Johnson received a 210-
month sentence. He appeals on several grounds. The gov-
ernment had exercised peremptory challenges against two
female prospective jurors, but Johnson failed to show a pri-
ma facie case of discrimination in jury selection on the basis
of gender so the court did not need to evaluate the reasons
2 No. 12-3229
for the government’s strikes. As for his sentence, which was
largely driven by his career offender status, we find that the
district court understood Johnson’s request for a below-
guidelines sentence but rejected it in light of Johnson’s crim-
inal history, and we affirm his prison term. The special con-
dition of supervised release requiring that Johnson partici-
pate in a sex offender treatment program is another story,
however. Johnson’s only sex-related offense came fifteen
years earlier when he received a misdemeanor conviction
and a probation-only sentence because, at the age of seven-
teen, he had sex with a girl over thirteen and less than seven-
teen years old. Guided in part by decisions we made after
the sentencing in this case took place, we conclude that the
record does not support a connection between mandatory
sex-offender treatment and the 18 U.S.C. § 3553(a) factors.
We therefore vacate this condition of supervised release, as
well as other conditions not mentioned in the oral pro-
nouncement of sentence. In all other respects we affirm his
conviction and sentence, as we discuss in more detail below.
I. BACKGROUND
Montarico Johnson was charged in a superseding indict-
ment with one count of distributing crack cocaine, in viola-
tion of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count
of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g). The panel of prospective jurors consisted of
thirty-three people. Sixteen members of the venire were
male, and seventeen were female. The judge used a system
to select the jury in which the jurors were chosen in panels of
four. With the government proceeding first, one party ten-
dered to the other party a group of four venirepersons. The
other party could use peremptory challenges as it saw fit
No. 12-3229 3
and then tender back four venirepersons. This process con-
tinued until both sides agreed on four jurors, and those four
were placed on the jury. The process continued until twelve
jurors were selected.
The government tendered two men and two women in
the first round, the defense had no objection, and those four
persons were seated on the jury. The defense then tendered
the next four venirepersons. The government exercised a
peremptory challenge on venireperson #7, who was male.
The government then tendered back two males and two fe-
males, there were no objections, and those jurors were seat-
ed.
In the next round, the government exercised peremptory
challenges on venirepersons #11 (male), #12 (female), #14
(female), and #15 (male). The defense asked the court to
question the government as to its reasons for using peremp-
tory challenges to ensure the government was not using its
challenges on the basis of gender or race. The court respond-
ed that two of the persons struck were male and two were
female, and all were of the same race, so there was no basis
for the defense’s request. The prosecutor offered to make a
record of his reasons for exercising the peremptory challeng-
es, and the judge stated he left that decision up to the gov-
ernment. The prosecutor then stated venireperson #11 had
previously found a defendant not guilty, #12 recounted that
she testified for a defendant in a criminal case, #14 stated
that she works with troubled children, including those in-
volved with drugs, and #15 has a cousin who is involved
with drugs and had served jail time.
At trial, law enforcement officials and confidential source
Ronnie Bridges detailed Bridges’s purchase of crack cocaine
4 No. 12-3229
and a Glock 9mm firearm from Johnson on February 18,
2010. The jury also saw a video of the purchase, among other
evidence. The jury found Johnson guilty on both counts. The
district court sentenced Johnson to 210 months’ imprison-
ment followed by three years of supervised release. The
court imposed special conditions of supervised release in-
cluding that Johnson participate in an approved sexual of-
fender treatment program, as directed by the probation of-
ficer. Johnson appeals.
II. ANALYSIS
A. Government’s Use of Peremptory Challenges Was
Proper
Johnson first argues that the prosecutor used peremptory
challenges during jury selection in a manner that was dis-
criminatory against prospective female jurors. In Batson v.
Kentucky, 476 U.S. 79 (1986), the Supreme Court held that the
government’s exercise of peremptory challenges on the basis
of race violates a defendant’s right to equal protection. The
Court subsequently extended Batson’s rule to gender-based
peremptory strikes. J.E.B. v. Alabama, 511 U.S. 127, 146 (1994).
As a result, a litigant may not use peremptory challenges to
exclude a juror on the basis of gender. Id.; Winston v. Boat-
wright, 649 F.3d 618, 622 (7th Cir. 2011).
Batson provided a three-step process for a district court to
use when evaluating a challenge that a prosecutor exercised
a peremptory challenge on the basis of race. We use that
process to evaluate challenges based on gender as well. See
J.E.B., 511 U.S. at 144–45; United States v. Brisk, 171 F.3d 514,
522 (7th Cir. 1999). First, the defendant must make a prima
facie case of discrimination in selection of the venire. Batson,
No. 12-3229 5
476 U.S. at 93–94. Next, if that showing has been made, the
burden shifts to the government to offer a non-
discriminatory explanation for the strike. Id. at 97. If the gov-
ernment does so, the court must then decide whether the de-
fendant has established that the government’s stated reason
is pretext for discrimination. Id. at 98.
Johnson argues that the district court erred by not evalu-
ating the credibility of the government’s justifications for ex-
cluding two female venirepersons. Johnson suggests that be-
cause the government offered non-discriminatory reasons
for its peremptory strikes, whether he made out a prima fa-
cie case of discrimination is moot. From that he argues that
the case must be remanded for further proceedings because
the district court did not make an explicit finding as to
whether the government’s proferred reasons were pretextu-
al. In support, Johnson points to cases such as Snyder v. Loui-
siana, 552 U.S. 472, 485–86 (2008), and United States v.
McMath, 559 F.3d 657, 666 (7th Cir. 2009), where the denials
of Batson challenges without judicial findings regarding the
credibility of the government’s proffered justification for the
strike were reversed and remanded for further proceedings.
But unlike the defendants in those cases, Johnson failed
to make a prima facie showing of discrimination during jury
selection. We look at all relevant circumstances when deter-
mining whether the requisite prima facie showing has been
made. Batson, 476 U.S. at 96. For example, a pattern of strikes
against members of a particular gender may give rise to an
inference of discrimination, and similarly so may a dispro-
portionate number of peremptory challenges exercised to
exclude members of a particular group. Harris v. Hardy, 680
F.3d 942, 949–50 (7th Cir. 2012). So too may a prosecutor’s
6 No. 12-3229
comments and statements. See Batson, 476 U.S. at 97. The test
is not rigorous. McMath, 559 F.3d at 664. Nonetheless, John-
son fails to pass it. He maintains on appeal that the govern-
ment discriminated against women in exercising its peremp-
tory challenges. But in the round at issue, the government
used peremptory challenges to strike an equal number of
men and women; it struck two men and two women. And its
only use of a peremptory challenge before that round was to
strike a male juror. Up to that point, and overall, the gov-
ernment exercised more peremptory challenges against men
(three) than it did against women (two), so the way the gov-
ernment used its peremptory challenges does not raise a
suggestion of discrimination on the basis of gender. Nor do
the prosecutor’s questions and statements, or anything else
in the record, raise any inference of intentional discrimina-
tion. There is no prima facie case of discrimination against
female venirepersons here.
That the judge allowed the government to assert for the
record its reasons for striking the venirepersons did not ob-
ligate the judge to evaluate those reasons. It also did not re-
lieve Johnson of his burden to demonstrate a prima face
case, nor did it mean the judge believed Johnson had met his
burden. The judge correctly recognized that Johnson had not
established a prima facie case, so there was no need to go
further. Cf. J.E.B., 511 U.S. at 144–45 (“As with race-based
Batson claims, a party alleging gender discrimination must
make a prima facie showing of intentional discrimination
before the party exercising the challenge is required to ex-
plain the basis for the strike.”). Because there was no prima
facie case of discrimination, we decline Johnson’s request to
remand for further proceedings on this issue.
No. 12-3229 7
B. Request for Variance from Career Offender Guide-
line Properly Denied
Johnson also argues that the district court failed to suffi-
ciently address his request for a variance from his advisory
guidelines range, a range that was largely driven by his ca-
reer offender status. In particular, he suggests that the dis-
trict court should have explicitly considered, in choosing
Johnson’s sentence, the United States Sentencing Commis-
sion’s fifteen-year review of sentencing data. We review this
argument de novo. United States v. Spiller, 732 F.3d 767, 769
(7th Cir. 2013). “The sentencing judge should set forth
enough to satisfy the appellate court that he has considered
the parties’ arguments and has a reasoned basis for exercis-
ing his own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007). While a judge “who fails to
mention a ground of recognized legal merit (provided it has
a factual basis) is likely to have committed an error,” United
States v. Cunningham, 429 F.3d 673, 679 (7th Cir. 2005), a
judge need not spend time addressing an argument if “’any-
one acquainted with the facts would have known without
being told why the judge had not accepted the argument,’”
United States v Castaldi, 743 F.3d 589, 595 (7th Cir. 2013)
(quoting Cunningham, 429 F.3d at 679).
Johnson’s career offender status meant that his advisory
guidelines range was 210 to 240 months’ imprisonment. Had
he not been a career offender, his crack cocaine amount of
three grams combined with a criminal history category of III
would have yielded a much lower advisory guidelines
range. But Johnson’s prior convictions for aggravated battery
and home invasion made him a career offender under the
United States Sentencing Guidelines. See U.S.S.G. § 4B1.1.
8 No. 12-3229
At the sentencing hearing, after the court concluded that
Johnson was a career offender, the parties expressed their
positions as to the appropriate sentence. The government
requested a sentence of 210 months’ imprisonment. John-
son’s counsel requested a downward variance based on
Johnson’s family situation. Counsel also referred to a fifteen-
year study conducted by the United States Sentencing
Commission and its conclusion that long terms of impris-
onment for low-level drug dealers do little to prevent drug
sales, 1 although he did not cite the study by name or present
a copy to the district court. Johnson’s only argument regard-
ing his career offender status in his written objections to the
Presentence Report had been that his home invasion convic-
tion did not constitute a crime of violence. (He does not chal-
lenge the career offender finding on appeal.)
The district court addressed Johnson and explained the
reasons for its sentence. The court pointed to Johnson’s cur-
rent crimes and his prior convictions for criminal sexual
abuse, home invasion, and aggravated battery. It also noted
that the guidelines did not take into account the fact that
Johnson possessed a firearm during the instant offense in
light of his career offender status. The court said that John-
son had been involved with the criminal justice system since
he was at least seventeen years old and had not learned his
lesson from previous convictions. The court concluded by
stating that “after considering all the information in the
1 See United States Sentencing Commission, Fifteen Years of Guideline Sen-
tencing: An Assessment of How Well the Federal Criminal Justice System Is
Achieving the Goals of Sentencing Reform, Nov. 2004, at 134, available at
http://www.ussc.gov/research-and-publications/research-projects-and-
surveys/miscellaneous/fifteen-years-guidelines-sentencing.
No. 12-3229 9
presentence report, including guideline computations and
factors set forth in 18 U.S.C. § 3553(a), even considering the re-
quest of your counsel for a variance below the guidelines range,
the Court’s considered that, pursuant to the Sentencing Re-
form Act of 1984, it will be the judgment of this Court de-
fendant Montarico C. Johnson is hereby committed to the
custody of the Bureau of Prisons to be in prison for a term of
210 months… .” (emphasis added).
The district court’s explanation of its sentence reflects
that it understood Johnson’s request for a variance but re-
jected it. The court explained at some length that Johnson’s
criminal history meant it did not find a below-guidelines
sentence warranted. We conclude that the court’s failure to
explicitly cite in its reasoning the United States Sentencing
Commission study that the defense had mentioned only
orally, and briefly, at the sentencing hearing does not war-
rant a remand. See United States v. Diekamper, 604 F.3d 345,
355 (7th Cir. 2010) (stating “as long as a sentencing court
considers the arguments made in mitigation, even if implicit-
ly and imprecisely,” sentence would be affirmed).
C. Sexual Treatment Program as Condition of Super-
vised Release Was Error
Johnson also argues that the district court should not
have imposed participation in a sexual treatment program as
a condition of Johnson’s supervised release. Johnson takes
issue with the court’s imposition as a special condition that
Johnson “shall participate in an approved sexual offender
treatment program, as directed by the probation officer.”
The court also directed that “if deemed necessary,” Johnson
“shall submit to an approved sexual-predator evaluation as
directed by the probation officer.” Johnson was ordered to
10 No. 12-3229
pay for the associated costs on a sliding fee scale as directed
by the Probation Office.
The government contends that we should review the
propriety of this special condition for plain error since John-
son did not object to it before the district court. But as John-
son points out, he had no notice that this condition was even
under consideration until the district court imposed it as
part of his sentence at the end of the hearing. The Presen-
tence Report had said nothing about such a condition. The
government had not requested it before or during the hear-
ing. And it was never discussed during the sentencing hear-
ing until the judge imposed it. As we recently discussed, “it
is difficult to prepare to respond to every condition of su-
pervised release that the judge may impose without any ad-
vance notice, given that the judge is empowered to impose
special conditions that are not listed in the guidelines, or an-
ywhere else for that matter.” United States v. Bryant, No. 13-
3845, --- F.3d ---, 2014 WL 2612349, at *4 (7th Cir. June 12,
2014). In any event, we find the condition unwarranted un-
der either a plain error or abuse of discretion standard of re-
view. Cf. United States v. Shannon, 743 F.3d 496, 501 (7th Cir.
2014) (concluding special condition of supervised release re-
quired vacatur under either standard of review); United
States v. Goodwin, 717 F.3d 511, 521 (7th Cir. 2013) (same).
We recently discussed conditions of supervised release in
detail and emphasized that a judge’s decision to impose any
discretionary condition must be made in compliance with
the sentencing factors in 18 U.S.C. § 3553(a). United States v.
Siegel, Nos. 13-1633 et al., --- F.3d ---, 2014 WL 2210762, at *2
(7th Cir. May 29, 2014); see also 18 U.S.C. § 3583(d); Goodwin,
717 F.3d at 521–22. Special conditions “’must be reasonably
No. 12-3229 11
related to (1) the defendant’s offense, history and characteris-
tics; (2) the need for adequate deterrence; (3) the need to pro-
tect the public from further crimes of the defendant; and (4)
the need to provide the defendant with treatment.’” Good-
win, 717 F.3d at 522 (quoting United States v. Angle, 598 F.3d
352, 360–61 (7th Cir. 2010)); see 18 U.S.C. § 3553(a)(1)-(2). A
special condition also must not involve a greater deprivation
of liberty than is reasonably necessary to achieve the goals of
deterrence, incapacitation, and rehabilitation. Goodwin, 717
F.3d at 522; see also 18 U.S.C. § 3553(a)(2); Siegel, 2014 WL
2210762 at *2. Finally, any condition must be “consistent
with any pertinent statements issued by the Sentencing
Commission.” 18 U.S.C. § 3583(d)(3); Goodwin, 717 F.3d at
522.
The government suggests that we need not decide this is-
sue because a determination on its appropriateness could
await Johnson’s release from prison, when the probation of-
ficer may say that sex offender treatment is not necessary. See
18 U.S.C. § 3583(e)(2) (authorizing court to modify condi-
tions of supervised release at any time). But the government
acknowledges that Johnson is unlikely to have counsel at
that point, and if we do nothing the default will be that the
special condition is in place. Cf. Siegel, 2014 WL 2210762 at *2
(recognizing that supervised release modification is techni-
cally possible at any time but still a hassle). We decline to
wait.
The district court gave no reason for imposing participa-
tion in a sex offender treatment program as a special condi-
tion of Johnson’s supervised release in this drug and gun
case. The government maintains we should nonetheless af-
firm the condition in light of Johnson’s December 1997 con-
12 No. 12-3229
viction for criminal sexual abuse. When he was seventeen
years old, Johnson had sex with a girl who was over the age
of thirteen but less than seventeen. The result was a misde-
meanor conviction for criminal sexual abuse in Illinois state
court for which he received no jail time and a sentence of
one year of probation. Johnson has no other sex-related of-
fenses, nor are the instant offenses sex-related. Johnson does
have convictions in two cases involving violence against
women, but neither was a sex-related offense. He was con-
victed of home invasion in 1998 during which he struck a
woman in the head. He also has a 2005 aggravated battery
conviction for striking a woman on her head and body with
a bludgeon. But neither incident, reprehensible as each is,
evidences a need to provide Johnson with sex offender
treatment nor involves the kind of offense sex offender
treatment is designed to prevent.
So the only potential support in the record for the sex of-
fender treatment condition is the 1997 misdemeanor. The
government’s appellate brief points out that the Presentence
Report states Johnson was initially charged in the 1997 case
with two criminal counts, including a count of felony crimi-
nal sexual assault alleging the use of force. Although that
count was dropped when Johnson pled guilty to the misde-
meanor, the government argues that the district court would
have been justified in considering the felony charge when
deciding whether sexual offender treatment was warranted
here. But the record contains no information about the felo-
ny charge other than that it was dropped. This is not a situa-
tion comparable to a federal trial where a judge who has
heard all the evidence can consider acquitted conduct at sen-
tencing. Cf. United States v. Waltower, 643 F.3d 572, 577 (7th
Cir. 2011) (upholding a judge’s consideration of acquitted
No. 12-3229 13
conduct in sentencing determination). In those circumstanc-
es, while “a jury’s verdict of acquittal does not prevent the
sentencing court from considering conduct underlying the
acquitted charge,” the court may do so only “so long as that
conduct has been proved by a preponderance of the evi-
dence.” United States v. Watts, 519 U.S. 148, 157 (1997) (per
curiam). The federal sentencing court in this case, in con-
trast, heard no evidence whatsoever about what happened
in 1997, and there is no evidence whatsoever in the record of
a forcible sexual assault. So, based on the evidence before the
court, the sentencing court could not have found that John-
son acted with force in 1997 under any standard of proof.
There’s just no evidence of that. The dropped felony charge
cannot support the sex treatment condition.
The question, then, is whether the 1997 misdemeanor
could support the mandatory participation in a sex treat-
ment program ordered by the judge in 2012. Our decision in
United States v. Evans, 727 F.3d 730 (7th Cir. 2013), another
case we decided after Johnson was sentenced, guides us
here. In Evans, we considered a defendant’s argument that he
should not have received sex offender treatment as a special
condition of supervised release because his conviction was
not for a sex-related offense. We reviewed our sister circuits’
decisions and concluded that “[t]he common theme of these
decisions is that sex-offender treatment is reasonably related
to the factors in Section 3553(a), even if the offense of convic-
tion is not a sex offense, so long as the sexual offenses are
recent enough in the defendant’s history that the goals of re-
habilitation and protecting the public justify an order for
treatment.” Id. at 735. And, we said, “[w]e agree with the
other circuits that have held that there must be some nexus
14 No. 12-3229
shown between the sexual misconduct and applicability of
the Section 3553(a) factors for the current offense.” Id.
We do not see any link shown between Johnson’s misde-
meanor for having sex with someone who was between thir-
teen and seventeen when he was seventeen years old and the
applicability of the Section 3553(a) factors for the current of-
fense. A temporal connection could be one way to show the
requisite connection. See id. at 735. For example, we found a
sufficient connection in Evans where, although the defend-
ant’s federal offenses were only drug and gun crimes, he had
pending state court charges for sexual abuse of a minor at
the time of his sentencing. Id. When the district court learned
he was convicted of the state offenses, it modified Evans’s
conditions of federal supervised release to include sex of-
fender assessment and treatment. Id. at 731. We upheld that
decision, reasoning that the sexual misconduct took place at
nearly the same time as his drug and firearm offenses, and
that at the time of the sentencing hearing, “the sexual offens-
es were not a remote part of his history, but instead part of
his pending, unpunished criminal conduct.” Id. at 735.
Here, in contrast, Johnson’s sex-related misdemeanor oc-
curred fifteen years before he was sentenced for the current
offenses. The government has not explained why sex-
offender treatment is necessary at this point to rehabilitate
Johnson or to protect the public. There is no suggestion that
Johnson has engaged in any sexual misconduct since the
1997 misdemeanor. A single misdemeanor for which Johnson
received no jail time does not suggest that sexual misconduct
is prominent in Johnson’s behavior. And there is no sugges-
tion that he is likely to commit any future sex-related offens-
es.
No. 12-3229 15
Other circuits have expressed similar concerns in similar
cases, as we discussed in Evans. See, e.g., United States v.
Carter, 463 F.3d 526, 532–33 (6th Cir. 2006) (finding sex of-
fender treatment condition not supported by seventeen-
year-old sex-offense conviction but remanding for determi-
nation of whether stalking conviction two years earlier was
sexual in nature); United States v. T.M., 330 F.3d 1235, 1240
(9th Cir. 2003) (vacating sex-offender treatment condition
and stating “[s]upervised release conditions predicated upon
twenty-year-old incidents, without more, do not promote the
goals of public protection and deterrence”). The Eighth Cir-
cuit, for example, vacated a sex-offender treatment condition
imposed for an armed robbery sentence that was predicated
on a sexual offense fifteen years earlier where there was no
evidence supporting the need for special conditions in his
case. United States v. Scott, 270 F.3d 632, 633 (8th Cir. 2001).
Our analysis of our sister circuits reflected that “[o]ther
courts have upheld sex-offender treatment conditions when
the sexual misconduct was so recent as to be a contemporary
characteristic of the defendant’s offender profile at the time
of sentencing; they have vacated such conditions if the de-
fendant’s last incident of sexual misconduct is so remote in
time that it does not support any present need to rehabilitate
the defendant or protect the public.” Evans, 727 F.3d at 734
(collecting cases).
Ours is the latter situation. Johnson’s fifteen-year old sex-
ual misconduct misdemeanor does not support any present
need to provide just punishment for the instant offenses, to
deter criminal conduct, to rehabilitate Johnson, or to protect
the public. Cf. 18 U.S.C. § 3553(a)(2). We therefore vacate the
special condition of probation stating that Johnson “shall
16 No. 12-3229
participate in an approved sexual offender treatment pro-
gram, as directed by the probation officer.”
D. Conditions Inconsistent with Oral Sentencing Pro-
nouncement
Johnson also argues that his judgment should be amend-
ed regarding two additional conditions of supervised release
that were not contained in the judge’s oral pronouncement at
the sentencing hearing. “If an inconsistency exists between
an oral and the later written sentence, the sentence pro-
nounced from the bench controls.” United States v. Alburay,
415 F.3d 782, 788 (7th Cir. 2005). The written amended judg-
ment requires Johnson to participate as directed in an alco-
hol dependence program and says any such participation
will require complete abstinence from alcoholic beverages. It
also contains a special condition of supervision that author-
izes the search of his “computer, electronic communication
and data storage device or media.” Neither alcohol nor the
described searches were mentioned during the oral pro-
nouncement of Johnson’s sentence at the sentencing hearing.
As a result, the government agrees with Johnson that the dis-
trict court should issue a new judgment reflecting the sen-
tence announced from the bench, and so do we. See United
States v. Baker, No. 13-1641, --- F.3d ---, 2014 WL 2736016, at *6
(7th Cir. June 17, 2014); Alburay, 415 F.3d at 788; United States
v. Parker, 101 F.3d 527, 528 (7th Cir. 1996).
III. CONCLUSION
Johnson’s conviction and prison term are AFFIRMED, but
the special conditions of supervised release mandating par-
ticipation in an approved sexual offender treatment pro-
gram, requiring participation in an alcohol dependence pro-
No. 12-3229 17
gram, and requiring Johnson to submit his computer, elec-
tronic communication, and data storage device or media are
VACATED. This case is REMANDED for further proceedings
consistent with this opinion.