United States v. Johnson

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 11, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 05-5232
v. (D.C. No. 89-CR-137-01-HDC)
(N.D. Okla.)
R OBER T L. JO H N SO N ,

Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before KELLY, M cKA Y, and LUCERO, Circuit Judges. **

Defendant-Appellant Robert L. Johnson appeals his sentence imposed

following the government’s request to revoke his supervised release. M r. Johnson

stipulated to the allegations in the government’s request and waived a revocation

hearing. The district court sentenced M r. Johnson, on four counts, to four

consecutive terms of 24 months imprisonment, totaling 96 months. Our

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
jurisdiction arises under 28 U .S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.

Background

M r. Johnson was convicted on October 3, 1989, following a jury trial, on

two counts of money laundering and sixty counts of engaging in transactions w ith

property derived from unlawful activity. After a direct appeal, his convictions as

to twenty-eight of those counts were vacated. M r. Johnson was then re-sentenced

to 188 months on two counts, and another 120 months, to run concurrently, on the

remaining thirty-two counts. A three year term of supervised release was

imposed in each count, all running concurrently.

O n June 7, 2002, M r. Johnson’s supervised release term commenced. On

October 31, 2002, the government petitioned the court to revoke his supervised

release, relying on two separate grounds. The government contended that M r.

Johnson (1) committed a federal crime, viz., possession of a controlled substance,

in violation of the supervised release’s M andatory Condition and Condition

number seven, and (2) failed to submit a truthful and complete written report to

his probation officer within the first five days of each month in violation of

Standard Condition number two. See I Aplt. App. Doc. 112 at 2-3. M r. Johnson

confessed to the allegations, and on M arch 24, 2003, the district court revoked the

supervised release as to one term of his original conviction, and sentenced him to

-2-
an 18 month term of imprisonment, followed by an 18 month term of supervised

release on that count. The supervised release as to the other counts was tolled

pending M r. Johnson’s imprisonment.

On September 21, 2004, M r. Johnson’s next supervised release term began.

Nearly a year later, on September 8, 2005, the government again requested that

his supervised release be revoked, again asserting several grounds therefor,

including: (1) violation of the M andatory Condition prohibiting the commission

of another federal, state, or local crime; (2) violation of Standard Condition

number two by failing to submit a truthful and complete written report to his

probation officer within the first five days of each month; (3) violation of Special

Condition number seven, which prohibited engaging in solicitation of money

during the term of supervised relief; (4) violation of Special Financial Condition

number two, which prohibited making an application for a loan or entering any

credit arrangement without consulting with his probation officer; and (5) violation

of Special Condition number eight, which prohibited altering or destroying

records of computer use. I Aplt. App. Doc. 31. As noted above, M r. Johnson

stipulated to those allegations and waived a hearing. The district court revoked

all terms of his supervised release, and sentenced him to a total of 96 months

imprisonment – 24 months to run concurrently on four counts. This appeal

followed.

-3-
 Discussion

On appeal, M r. Johnson contends that his sentence was neither reasoned nor

reasonable, and thus must be reversed. He argues that the consecutive ordering of

the terms was improper because the district court erred (1) in taking into account

the circumstances of the original offense, and (2) in relying upon M r. Johnson’s

(admitted) drug use, which w as a basis for the first revocation. W e are

unpersuaded.

As there is no applicable sentencing guideline for the sentence to be

imposed after a violation of supervised release, we review under a “plainly

unreasonable” standard. United States v. Kelley, 359 F.3d 1302, 1304 (10th Cir.

2004). W e will not reverse a sentence if the record demonstrates that the sentence

is reasoned and reasonable. Id. (internal quotations omitted). The district court’s

factual findings are reviewed for clear error and its legal conclusions are reviewed

de novo. Id.

W hen a person violates a condition of his or her supervised release, the

district court has the pow er to revoke the term of supervised release and impose

prison time. See 18 U.S.C. § 3583(e)(3). 1 Of course, as we have repeated

numerous times, the district court must also consider the factors set forth in

various subsections of 18 U.S.C. § 3553(a). Furthermore, the district court must

1
The maximum term of imprisonment involving each count of an
underlying class D felony, such as we have here, is tw o years. 18 U.S.C. §
3853(e)(3).

-4-
also consider the policy statements located in Chapter 7 of the Sentencing

Guidelines. United States v. Lee, 957 F.2d 770, 774 (10th Cir. 1992) (citing 18

U.S.C. § 3553(a)). These policy statements are advisory in nature, and they

recommend a range of imprisonment upon revocation of supervised release.

See United States Sentencing Guidelines M anual § 7B1.4 (2002); Kelley, 359

F.3d at 1305.

M r. Johnson argues that the district court may not consider the original

offense (or an offense involved in the first revocation) because the factors a

district court may consider under 18 U.S.C. § 3583(e) do not include 18 U.S.C.

§ 3553(a)(2)(A ). Section 3553(a)(2)(A ) concerns the need for the sentence “to

reflect the seriousness of the offense, promote respect for the law, and to provide

just punishment for the offense.” Aplt. Br. at 10 (alterations omitted). He

concedes that § 3583(e) does reference § 3553(a)(1) which provides for

consideration of “the nature and circumstances of the offense and the history and

characteristics of the defendant.” He argues that the omission of § 3553(a)(2)(A )

is intentional, and that § 3553(a)(1) w as included merely to capture the history

and characteristics of the defendant, rather than “the nature and circumstances of

the offense.” W e know of no canon of statutory construction that would permit us

to ignore part of the language in § 3553(a)(1) which includes “the nature and

circumstances of the offense.” M oreover, we think the district court could

certainly consider the offenses in question under any number of factors including

-5-
(1) the history and characteristics of the defendant, (2) deterrence, and (3)

protection of the public. 18 U.S.C. § 3553(a)(1) & (2)(B), (C).

There is no requirement that the district court consider each factor listed in

§ 3553(a) individually before issuing a sentence. United States v. Rines, 419 F.3d

1104, 1107 (10th Cir. 2005). That is to say, it is not our job to mandate that the

district court perform a ritual in order to establish compliance. Id. To the

contrary, all we require is that the district court consider the relevant factors en

masse and indicate its reasoning for imposing the sentence. Kelley, 359 F.3d at

1305.

Upon through review of the entire record, we are more than satisfied that

the district court adequately considered all the necessary factors in sentencing M r.

Johnson for violating the conditions of his supervised release. The court

expressly stated that it considered the Chapter 7 policy statements in arriving at

its sentence. See II Aplt. Supp. App. at 4. In addition, it explained the other

factors it took into account, including M r. Johnson unabated inability to comply

with the law as w ell as the need to for deterrence and protection of the public

from his future crimes. Id. at 7-8.

The district court properly considered the factors it was bound to review

under 18 U.S.C. §§ 3583(e) and 3553(a), and accordingly, we conclude that M r.

Johnson’s 96 month sentence was reasoned and reasonable under the

-6-
circumstances presented in this case.

AFFIRM ED.

Entered for the Court

Paul J. Kelly, Jr.
Circuit Judge

-7-