NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 08a0751n.06
Filed: December 9, 2008
No. 07-3870
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
) ON APPEAL FROM THE
Plaintiff-Appellee, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
HARVEY JOHNSON, ) OPINION
)
Defendant-Appellant. )
BEFORE: MERRITT, MOORE, and COLE, Circuit Judges.
COLE, Circuit Judge. Defendant-Appellant Harvey Johnson appeals the thirty-six-month
sentence imposed by the district court following its revocation of his supervised release. Johnson
argues that the district court committed procedural error by inadequately explaining its upward
variance from the United States Sentencing Commission’s advisory Guidelines range. Johnson also
argues that the sentence imposed by the district court was substantively unreasonable because there
was insufficient record evidence demonstrating its consideration of the relevant 18 U.S.C. § 3553(a)
factors. We agree that Johnson’s sentence is procedurally unreasonable. However, because we have
insufficient information to provide meaningful review of substantive reasonableness, we do not
evaluate Johnson’s sentence for substantive reasonableness. For the reasons set forth below, we
VACATE Johnson’s sentence and REMAND this case to the district court for resentencing.
I. BACKGROUND
No. 07-3870
USA v. Johnson
On October 16, 1997, Johnson was convicted in the United States District Court for the
Eastern District of Pennsylvania of conspiracy, armed bank robbery, and using or carrying a firearm
during a crime of violence. He was sentenced to sixty months in prison and sixty months of
supervised release. In April 2003, Johnson’s supervision was transferred to the Southern District
of Ohio.
The United States Probation Office filed a July 2006 report alleging that Johnson had
violated the terms of his supervision. The report stated that Johnson had failed to submit his
required monthly reports for March 2006 through June 2006 and that an Ohio grand jury had
returned a three-count indictment against him for theft and forgery. The probation officer
recommended that no action be taken against Johnson until either the officer had completed an
investigation or the charges were resolved; the district court concurred with this recommendation.
In November 2006, the Probation Office petitioned the district court to “issue an Order to
Appear and Show Cause and to toll Johnson’s term of supervise[d] release.” (Petition for Warrant
of Oct. 31, 2006 1, Joint Appendix (“JA”) 9.) The probation officer recommended revoking
Johnson’s supervision. Johnson appeared and was released on an own-recognizance bond. The
court then scheduled Johnson’s revocation hearing for February 2007, but the hearing was later
rescheduled to occur in May 2007.
Before the district court could consider Johnson’s initial revocation, the Probation Office
filed an April 19, 2007 petition requesting that the court “issue a warrant” and revoke Johnson’s
supervision. This petition explained that Johnson had left the judicial district without permission
of the court or of a probation officer. The district court ordered the issuance of a warrant for
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USA v. Johnson
Johnson’s arrest, and Johnson was arrested in Wildwood, Florida the following day. The court also
rescheduled Johnson’s revocation hearing for June 27, 2007.
Prior to the June revocation hearing, the Probation Office amended its petition for revocation
of supervision to allege four violations of Johnson’s supervised release. The first violation alleged
that Johnson had left the judicial district without permission of the court or a probation officer. The
remaining violations alleged that Johnson had committed three separate federal, state, or local
crimes. The second violation restated the theft and forgery charges from the November 2006
petition. The third violation alleged that Johnson had been in possession of a firearm when he was
arrested in Florida in April. The fourth violation concerned Johnson’s alleged murder of Keva
Gazaway. The probation officer also prepared a Supervised Release Violation Report (“SRVS”) and
an Amended SRVS, which recommended that the court revoke Johnson’s supervised release and
sentence him “for 36 months in all counts with the terms to be served concurrently with no
supervised release.” (Amended SRVS 1-7, JA 39-47.)
At the June 27, 2007 revocation hearing, the government explained that it was prepared to
proceed on the first supervised release violation—leaving the judicial district without
permission—but was not in a position to present proof as to the remaining three. Johnson informed
the court that he was admitting to the first violation, but that “[v]iolations 2, 3, and 4 relate[d] to
pending criminal matters in other jurisdictions, and [he], obviously, would not be able to make any
admissions concerning that activity.” (Hr’g Tr. of June 27, 2007 (“June Tr.”) 2, JA 24.)
The entirety of the record constituting the district court’s acceptance of Johnson’s plea and
the imposition of his sentence follows:
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No. 07-3870
USA v. Johnson
The Court: All right. You are pleading guilty to the charge that you violated your
condition of supervised release by leaving the judicial district. Is that correct?
The Defendant: Yes, sir.
The Court: All right. The Court finds that the supervised release is hereby revoked,
and defendant is sentenced to prison for three years.
[Johnson’s attorney]: Your Honor, can we address that issue, please?
The Court: Please?
[Johnson’s attorney]: Can we address that issue, please?
The Court: Address what?
[Johnson’s attorney]: Can I address the Court before you pronounce sentence?
The Court: Go ahead.
[Johnson’s attorney]: Your Honor, this is a Grade C violation that we’re admitting.
The guideline range is five to eleven months. The only information pending before
this Court that he has admitted to is the fact that he left the judicial jurisdiction.
I understand that the Court has the ability and the right because the guidelines
are advisory and have always been advisory as they relate to supervised release
violations. But this is a Grade C violation, a technical violation, with a range of five
to eleven months, and I think the Court should consider that.
We did not plead guilty to the A or B violations, which are set forth in
Violations 2, 3, and 4.
The Court: I understand what you’re saying. I understand the circumstances
surrounding what he’s pleading guilty to in Violation number one. He was asked not
to leave the jurisdiction before he left and he knew he was not supposed to, but he
went anyhow. So, I’m taking that into consideration in the sentence, and I’m
imposing what I think is appropriate in this case.
Does the Government have anything it wants to add?
[The government]: It would not object to the Court’s recommended sentence, your
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USA v. Johnson
Honor.
The Court: All right. Your objection’s noted, [to Johnson’s attorney].
[Johnson’s attorney]: (Nods head up and down.)
The Court: Anything else on this matter?
[The government]: Not on behalf of the government, your Honor.
[Johnson’s attorney]: No, your Honor.
(June Tr. 3-5, JA 25-27.) The Court then entered a written judgment sentencing Johnson to three
years in prison. Johnson’s timely appeal followed.
II. ANALYSIS
This Court reviews a district court’s sentence on revocation of supervised release under a
deferential abuse of discretion standard for reasonableness. United States v. Bolds, 511 F.3d 568,
575 (6th Cir. 2007). The reasonableness inquiry contains both procedural and substantive
components. Gall v. United States, 128 S. Ct. 586, 597 (2007).
A. Procedural Reasonableness
A sentence on revocation may be procedurally unreasonable “if the district judge fails to
consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C.
§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such
required consideration.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (internal
citations omitted) (citing United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). The § 3553(a)
factors relevant to a revocation of supervised release include “the nature of the offense; the need to
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USA v. Johnson
deter criminal conduct, to protect the public, and to provide Defendant with appropriate treatment;
any guideline range for sentencing; guideline policy statements; and avoidance of unwarranted
disparities.” United States v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005) (citations omitted).
Johnson argues that the district court’s actions were procedurally unreasonable because “[t]he
court did not make any findings regarding the proper guideline sentencing range and gave no
explanation for its sentence.” (Final Br. of Defendant-Appellant Johnson 9.) The Supreme Court
recently provided instructions for our review of such issues. See Gall, 128 S. Ct. at 597-98. This
Court must “ensure that the district court committed no significant procedural error, such as failing
to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,
failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence--including an explanation for any deviation from
the Guidelines range.” United States v. Jordan, 544 F.3d 656, 2008 U.S. App. LEXIS 21572, at *44
(6th Cir. Oct. 15, 2008) (citing Gall, 128 S. Ct. at 597); see also United States v. Grossman, 513
F.3d 592, 595 (6th Cir. 2008) (citation omitted). And while it is true that the district court has no
obligation to engage in a “ritualistic incantation of the relevant § 3553(a) factors,” United States v.
Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007), the reviewing court must provide enough detail
in imposing a particular sentence “to permit reasonable appellate review.” United States v.
Richardson, 437 F.3d 550, 554 (6th Cir. 2006) (citation omitted); see also Grossman, 513 F.3d at
595.
1. The district court’s consideration of the proper Sentencing-Guidelines range
First, we disagree with Johnson’s argument that the district court did not make any findings
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regarding the proper sentence, and find that the court properly allowed Johnson an opportunity to
address the sentence. (See June Tr. 3-4, JA 25-26.) Before Johnson objected, the district court’s
findings on the revocation of Johnson’s supervised release included only that, “[t]he Court finds that
the supervised release is hereby revoked, and defendant is sentenced to prison for three years.” (Id.
3, JA 25.) This limited analysis alone would have been procedurally unreasonable. However,
Johnson’s objections clarified that the violation was a “Grade C violation,” that the relevant
Guidelines range was “five to eleven months,” and that Johnson was not pleading guilty to any other
violations. (Id. 4, JA 26.) The court then stated that it understood Johnson’s arguments and the
circumstances surrounding Johnson’s guilty plea, and imposed the sentence it thought was
“appropriate in this case.” (Id.)
While the district court’s finding regarding Johnson’s Sentencing-Guidelines range was less
than ideal, we are not inclined to find it procedurally unreasonable. In United States v. Bostic, 371
F.3d 865, 872-73 (6th Cir. 2004), this Court announced a new procedural rule requiring district
courts to entertain, in fact to request, any objections after pronouncing the defendant’s sentence and
before adjourning the sentencing hearing. Id. at 872. There, we stated, “[p]roviding a final
opportunity for objections after the pronouncement of a sentence, ‘will serve the dual purposes of
permitting the district court to correct on the spot any error it may have made and of guiding
appellate review.’” Id. at 873 (citation omitted). As this Court anticipated in Bostic, Johnson’s
timely objection provided the district court with an opportunity to correct its error. Specifically,
Johnson’s objection clarified the applicable Guidelines range of five-to-eleven months. And the
district court indicated its agreement with that range. Thus, though the district court’s initial
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USA v. Johnson
pronouncement was procedurally unreasonable, where Johnson’s Bostic-objection set out the proper
Guidelines range, the district court demonstrated its understanding of Johnson’s objection, and
Johnson does not argue that the court applied the wrong Guidelines range, we do not find the district
court acted procedurally unreasonably in determining Johnson’s Guidelines range.
2. The district court’s explanation of its variance from the Sentencing Guidelines
Johnson also argues that the district court failed to explain its sentence, by failing to articulate
how the § 3553(a) factors applied to his out-of-Guidelines sentence or to explain how it arrived at
its determination. For the reasons set forth below, we agree.
Undoubtedly, the recommendation and imposition of an appropriate sentence is the province
of the district court. Our standard of review for sentencing reflects the deference allotted to such
decisions. However, in order to allow meaningful review, the district court must provide appellate
courts with sufficient information about the justification for the imposed sentence. United States v.
Kirby, 418 F.3d 621, 626 (6th Cir. 2005).
In this case, we have nothing to review—no discussion of § 3553(a) nor any other
explanation. As stated above, the court’s first determination provided, “[t]he Court finds that the
supervised release is hereby revoked, and defendant is sentenced to prison for three years.” (June
Tr. 3, JA 25.) This statement is procedurally unreasonable and Johnson properly objected to the
sentence on those grounds. Yet, even after Johnson’s objection, the court failed to correct its error.
Johnson explained that he had only pleaded guilty to a Grade C Violation with a five-to-eleven-
month Guidelines range, but the court replied as follows:
I understand what you’re saying. I understand the circumstances surrounding what
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USA v. Johnson
he’s pleading guilty to in Violation number one. He was asked not to leave the
jurisdiction before he left and he knew he was not supposed to, but he went anyhow.
So, I’m taking that into consideration in the sentence, and I’m imposing what I think
is appropriate in this case.
(Id. 4, JA 26.) In sum, the district court based its sentencing decision solely on its own unspoken
determination of what it deemed to be appropriate in this case. But that is not enough. We are
unable to review whether the district court abused its discretion where the colloquy leaves us nothing
to review. Under these circumstances, our precedent requires a determination that the district court’s
sentence is procedurally unreasonable.
B. Substantive reasonableness
It is unclear whether the sentence imposed by the district court in this case is substantively
reasonable. This Court concludes that there is simply not enough information in the record to allow
for a meaningful review. The district court failed to explain the relevant § 3553(a) factors, its
reasoning, or its justification for making an upward variance from the Sentencing Guidelines. Given
the lack of information regarding substantive reasonableness and our finding that Johnson’s sentence
was procedurally unreasonable, we must vacate Johnson’s sentence and remand his case to the
district court for resentencing.
III. CONCLUSION
For the reasons set forth above, we VACATE Johnson’s sentence and REMAND the case
to the district court for a new sentencing hearing.
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