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December 8, 2014 US V. Johnson Second 14-1063 To Be Argued By: DAVID E. NOVICK United States Court of Appeals FOR THE SECOND CIRCUIT Docket No. 14-1063 _____ UNITED STATES OF AMERICA, Appellee, -vs- JOHN JOHNSON, aka Duke, aka Duke Hardcore, aka Johnnie Johnson, Defendant-Appellant. _____ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT BRIEF FOR THE UNITED STATES OF AMERICA DEIRDRE M. DALY United States Attorney District of Connecticut DAVID E. NOVICK Assistant United States Attorney SANDRA S. GLOVER Assistant United States Attorney (of counsel) Table of Contents Table of Authorities ............................................. ii Statement of Jurisdiction ..................................... v Statement of Issue Presented for Review .......... vi Preliminary Statement .........................................1 Statement of the Case .........................................3 A. The underlying conviction and sentence .......................................................4 B. The supervised release violation and sentence .......................................................5 Summary of Argument .........................................8 Argument...............................................................9 I. The district court applied the correct statutory penalties in imposing sentence ............................................................9 A. Governing law and standard of review ..........................................................9 B. Discussion ................................................. 12 Conclusion .......................................................... 20 Addendum Table of Authorities Pursuant to “Blue Book” rule 10.7, the Government’s cita- tion of cases does not include “certiorari denied” disposi- tions that are more than two years old. Cases Apprendi v. New Jersey, 530 U.S. 466 (2000) ........................................ 14 Dorsey v. United States, 132 S. Ct. 2321 (2012) .................................... 16 Gall v. United States, 552 U.S. 38 (2007) ............................................ 5 Johnson v. United States, 529 U.S. 694 (2000) .................................. 17, 18 Kimbrough v. United States, 552 U.S. 85 (2007) ............................................ 5 McNeill v. United States, 131 S. Ct. 2218 (2011) .............................. 16, 18 United States v. Almand, 992 F.2d 316 (11th Cir. 1993) ........................ 17 United States v. Brewer, 549 Fed. Appx. 228 (4th Cir. 2014) (unpublished per curiam) ............................... 16 United States v. Goffi, 446 F.3d 319 (2d Cir. 2006) ............................ 12 ii United States v. Johnson, 259 Fed. Appx. 360 (2d Cir. 2008) ................... 5 United States v. Jones, 460 F.3d 191 (2d Cir. 2006) ............................ 11 United States v. McNeil, 415 F.3d 273 (2d Cir. 2005) ...................... 11, 12 United States v. Pelensky, 129 F.3d 63 (2d Cir. 1997) .............................. 11 United States v. Turlington, 696 F.3d 425 (3rd Cir. 2012) .............. 16, 17, 18 United States v. Warren, 335 F.3d 76 (2d Cir. 2003) ....................... passim United States v. White, 416 F.3d 1313 (11th Cir. 2005) (per curiam)..................................................... 17 United States v. Wirth, 250 F.3d 165 (2d Cir. 2001) (per curiam) ...... 11 Statutes 18 U.S.C. § 3231 ................................................... v 18 U.S.C. § 3553 ....................................... 6, 10, 12 18 U.S.C. § 3559 ......................................... 8, 9, 12 18 U.S.C. § 3583 ............................. 2, 4, 10, 12, 18 iii 18 U.S.C. § 3742 ................................................... v 21 U.S.C. § 841 ............................................ passim 28 U.S.C. § 1291 ................................................... v 28 U.S.C. § 2255 ................................................. 17 Rules Fed. R. App. P. 4 .................................................. v Guidelines U.S.S.G. § 7B1.1 ................................................. 11 U.S.S.G. § 7B1.4 ................................................. 11 iv Statement of Jurisdiction This is an appeal from a judgment entered on April 7, 2014 by the United States District Court for the District of Connecticut (Janet Bond Ar- terton, J.) after the defendant was found to have violated the conditions of his supervised release. Appellant’s Appendix (“A__”) 10, A50. The dis- trict court had subject matter jurisdiction under 18 U.S.C. § 3231. On April 8, 2014, the defend- ant filed a timely notice of appeal pursuant to Fed. R. App. P. 4(b). A10. This Court has appel- late jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). v Statement of Issue Presented for Review In a violation of supervised release proceed- ing, should the statutory maximum penalties for any term of imprisonment upon revocation be determined by reference to the law under which the defendant was convicted, or, if the law has changed, by reference to the law at the time of the revocation proceeding?1 1 This same question is currently pending before this Court in United States v. Ortiz, No. 13-4835. That case was argued November 14, 2014. vi United States Court of Appeals FOR THE SECOND CIRCUIT Docket No. 14-1063 _____ UNITED STATES OF AMERICA, Appellee, -vs- JOHN JOHNSON, aka Duke, aka Duke Hardcore, aka Johnnie Johnson, Defendant-Appellant. _____ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT BRIEF FOR THE UNITED STATES OF AMERICA Preliminary Statement In January 2006, the defendant, John John- son, pleaded guilty to possession with intent to distribute and distribution of more than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B). He was ultimately sen- tenced to 61 months’ imprisonment, to be fol- lowed by a 5-year term of supervised release. Johnson began his supervised release term on August 31, 2009. In May 2012, he brutally as- saulted his then-girlfriend, and was subsequent- ly sentenced to 18 years’ imprisonment for first- degree assault. That assault also led the district court to find that Johnson had violated the terms of his supervised release. The court im- posed the statutory maximum incarceration term of 36 months for the violation. On this appeal from the revocation sentence, Johnson argues that the district erred in finding that the statutory maximum incarceration term for the supervised release violation was three years. Johnson maintains that under current law, his offense conduct was an offense under 21 U.S.C. § 841(b)(1)(C) instead of § 841(b)(1)(B), and thus a Class C felony, subjecting him to only a two-year maximum penalty for a violation of supervised release. Johnson’s argument has no merit. As the dis- trict court properly concluded, regardless of any change in the law, the original count of convic- tion was a Class B felony because it carried a maximum 40-year prison term. Under 18 U.S.C. § 3583(e)(3), a Class B felony carries a maximum possible sentence of three years’ imprisonment for any subsequent violation of supervised re- lease. The district court’s judgment should be af- firmed. 2 Statement of the Case On July 14, 2005, a grand jury sitting in Bridgeport, Connecticut, indicted Johnson on one count of possession with the intent to dis- tribute five grams or more of crack cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B). A3. He pleaded guilty and in September 2008, was ultimately sentenced to a term of imprison- ment of 61 months, to be followed by a period of supervised release of 5 years. A8-A9. Johnson violated the conditions of his super- vised release in May 2012 when he brutally as- saulted his girlfriend. A12-A13. After pleading guilty to charges brought by the State of Con- necticut related to the assault, Johnson admitted to the violation of his supervised release for the same conduct. A12-A15, A18-A19. On March 26, 2014, the district court (Janet Bond Arterton, J.), sentenced him to the statutory maximum to- tal of 36 months’ incarceration, with 18 months to run concurrently with, and 18 months to run consecutively to, his state sentence. A10, A50- A51. Judgment on the supervised release violation entered on April 7, 2014, A10, and Johnson filed a timely notice of appeal on April 8, 2014, A10, A54. Johnson is currently serving his state court sentence with the Connecticut Department of Correction. 3 A. The underlying conviction and sen- tence In January 2006, Johnson pleaded guilty to a one-count indictment charging him with posses- sion with intent to distribute and distribution of more than five grams of cocaine base in violation of 21 U.S.C. §§ 841(a) and (b)(1)(B)(iii). A4. In his written plea agreement, Johnson admitted that he faced a maximum term of imprisonment of 40 years. See Jan. 20, 2006 Plea Agreement, Government’s Appendix (“GA__”) 2. The written plea agreement also memorialized Johnson’s un- derstanding “that should he violate any condi- tion of supervised release during its term, he may be required to serve a further term of im- prisonment of up to five years.”2 GA2. Johnson further signed a petition to enter a plea of guilty with the district court in which he specifically acknowledged that he faced a maximum term of imprisonment of 40 years. See Jan. 20, 2006, Pe- tition to Enter Plea of Guilty, GA12. On August 3, 2006, at the conclusion of two sentencing hearings, the district court imposed a 156-month sentence, to be followed by a four- year term of supervised release. A6. Johnson ap- 2 This language was incorrect.
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