221 F.3d 83 (2nd Cir. 2000), 99-1274, United States v Johnson

Docket Nº:Docket Nos. 99-1274(L), 99-1275(Con), 99-1354(XAP)
Citation:221 F.3d 83
Party Name:UNITED STATES OF AMERICA, Appellee-Cross-Appellant, v. JEFFREY A. JOHNSON, Appellant-Cross-Appellee.
Case Date:August 07, 2000
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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221 F.3d 83 (2nd Cir. 2000)

UNITED STATES OF AMERICA, Appellee-Cross-Appellant,

v.

JEFFREY A. JOHNSON, Appellant-Cross-Appellee.

Docket Nos. 99-1274(L), 99-1275(Con), 99-1354(XAP)

United States Court of Appeals, Second Circuit

August 7, 2000

        Argued: Jan. 14, 2000

        Appeal from a sentence following a guilty plea in the United States District Court for the Northern District of New York (Thomas J. McAvoy, Judge). The government cross-appeals claiming that the district court erred with respect to its grouping determinations. Because the government raised the grouping issues only belatedly in the district court and then in the context of an eroding legal position, we decline to entertain the cross-appeal. We nevertheless affirm the sentence.

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        WILLIAM P. FANCIULLO, Albany, New York, for Appellant-Cross-Appellee.

        BARBARA D. COTTRELL, Assistant United States Attorney (Thomas J. Maroney, United States Attorney, Northern District of New York; Thomas Spina, Jr., Assistant United States Attorney, of counsel), Albany, New York, for Appellee-Cross-Appellant.

        Before: WINTER, Chief Judge, JACOBS, and KATZMANN, Circuit Judges.

        WINTER, Chief Judge:

        Jeffrey Johnson appeals from the 88-month sentence imposed by then-Chief Judge McAvoy following a guilty plea to numerous crimes of a sexual nature involving minors. Appellant argues that his sentence must be modified for a number of reasons, including prosecutorial vindictiveness that allegedly caused a substantial change in the government's position well into the sentencing proceedings. The government cross-appeals from certain aspects of the district court's grouping of the various counts to which appellant pleaded guilty.

        We decline to entertain the cross-appeal. The arguments raised in the cross-appeal are at odds with the government's initial position with regard to the proper Guidelines range. They were raised only belatedly in the district court, without a showing of good cause, and then in the context of an erosion of the government's original and very different position. Given these and other matters described below, we believe that entertaining the cross-appeal might serve to deter defense counsel in similar circumstances from vigorously contesting the recommendations of a presentence report ("PSR") and, in the exercise of our supervisory power over the administration of justice, we decline to do so. However, we affirm the sentence. The district court independently questioned certain aspects of the original PSR and sua sponte requested a revised PSR from the Probation Department. The sentence imposed was based on that revised PSR and the district court's independent analysis of the proper enhancements and groupings contains no error harmful to appellant. We therefore affirm.

        BACKGROUND

        a) The Charges

        A three-count indictment was returned against appellant on June 25, 1997. On April 24, 1998, he entered into a plea agreement and waived indictment, and a

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ten-count information was filed against him. Pursuant to the plea agreement, appellant pleaded guilty to counts one and three of the indictment and all counts of the information. Given the issues raised on this appeal, the various counts must be described in detail.

        Count one of the indictment charged appellant with travel with the intent to engage in a sexual act with a minor, in violation of 18 U.S.C. § 2423(b). In the plea agreement, appellant admitted that, on or about June 17, 1997, he traveled from Massachusetts to New York to meet a thirteen-year-old girl for the purpose of engaging in oral sex with her.

        Count three of the indictment charged appellant with knowingly transporting in interstate commerce a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C. § 2252(a)(1). It charged that on June 17, 1997, appellant transported a graphic image on a laptop computer across state lines knowing that it depicted at least one individual under the age of eighteen engaged in sexually explicit conduct. Indeed, a search of appellant's hotel room on that day resulted in the seizure of, among other things, a number of graphic image files from his laptop computer, at least two of which contained child pornography.

        Counts one, two, and three of the information charged appellant with violating 18 U.S.C. § 2422(b), enticement of a minor to engage in sexual activity. Count one charged that in June 1997, appellant came into internet contact with a minor female from Maryland, convinced her to travel to Virginia, and engaged in sexual acts with her that are illegal in Virginia. Similarly, count two charged that in March 1997 appellant contacted a sixteen-year-old girl from Maryland on the internet, traveled from Virginia to Maryland, and engaged in oral sex with her, in violation of Maryland law. Count three charged that in November 1996, appellant contacted a thirteen-year-old girl from Michigan on the internet and traveled from Virginia to Michigan for the purpose of engaging in sexual acts with her, in violation of Michigan law.

        Count four charged appellant with violation of 18 U.S.C. § 2423(b). More specifically, in January 1996, appellant traveled from Virginia to Florida for the purpose of engaging in sexual acts with girls he believed to be twelve and thirteen years old.

        Counts five, six, seven, and eight charge appellant with violations of 18 U.S.C. § 2252(a)(1). These counts allege that appellant transmitted computer images of minors engaging in sexually explicit conduct from Virginia to other states on September 23, 1996, September 8, 1996 (counts six and seven), and December 10, 1995, respectively.

        Count nine charged appellant with violating 18 U.S.C. § 2252(a)(4)(B), for knowingly possessing one or more computer images depicting minors engaged in sexually explicit conduct that were transported in interstate commerce. Specifically, on June 18, 1997, appellant possessed numerous computer graphic images of minors engaged in sexually explicit conduct on computer disks that had been mailed and shipped and transported in interstate and foreign commerce and that were produced using materials that had been mailed and so shipped and transported. Indeed, appellant admitted in his plea agreement that a search of his home in June 1997 resulted in the recovery of hundreds of computer images that portrayed minors in sexually explicit conduct.

        Finally, Count ten sought forfeiture of certain computer hardware used by appellant.

        b) Sentencing Chronology

        1) Initial PSRs -- August 1998 to January 1999

        On August 26, 1998, the Probation Department completed PSR #1 using the 1997 U.S. Sentencing Guidelines Manual. PSR #1 indicated that appellant was to be sentenced on September 16, 1998 and recommended

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a sentence of between 70 to 87 months. This recommendation was based on an offense level of 27 and a criminal history category of I, as described in detail below.

        PSR #1 combined all counts to which appellant pleaded guilty into a single group pursuant to U.S. Sentencing Guidelines Manual ("U.S.S.G." or "Guidelines") § 3D1.2(c).1 PSR #1 used count nine, 18 U.S.C. § 2252(a)(4)(B) (possession of pornographic material containing minors), to determine appellant's sentence because it was believed to offer the highest offense level of the counts in the group. The Guideline generally applicable for violating Section 2252(a)(4)(B) is U.S.S.G. § 2G2.4, "Possession of Materials Depicting a Minor in Sexually Explicit Conduct." However, Section 2G2.4 contains a cross-reference to Section 2G2.2, stating "[i]f the offense involved trafficking in material involving the sexual exploitation of a minor (including receiving, transporting, shipping, advertising, or possessing material involving the sexual exploitation of a minor with intent to traffic), apply § 2G2.2 . . . ." U.S.S.G. § 2G2.4(c)(2). PSR #1 determined that the cross-reference in Section 2G2.4 applied and computed appellant's total offense level pursuant to Section 2G2.2 as follows: base level 17 (see id. § 2G2.2(a)), plus two for material involving prepubescent minors (see id. § 2G2.2(b)(1)), plus four for material portraying sadistic or masochistic (hereinafter "SM") conduct (see id. § 2G2.2(b)(3)), plus five for a pattern of activity involving the sexual abuse or exploitation of minors (see id. § 2G2.2(b)(4)), plus two for the use of a computer (see id. § 2G2.2(b)(5)), less three for appellant's acceptance of responsibility and for his timely notice to the government of his intent to plead guilty (see id. § 3E1.1(a) & (b)(2)).

        In the Northern District, objections to a PSR must be made within fourteen days. See N.D.N.Y. Local R. Crim. P. 32.1; see also Fed. R. Crim. P. 32(b)(6)(B) ("Within 14 days after receiving the presentence report, the parties shall communicate in writing to the probation officer, and to each other, any objections to any material information, sentencing classifications, sentencing guidelines ranges, and policy statements contained in or omitted from the presentence report."). Appellant objected to PSR #1 on several grounds, but the government did not. Following a presentence conference between Probation and the parties, the Probation Department issued a revised PSR, PSR #2, on October 26, 1998. The revisions did not alter any of the sentencing recommendations contained in PSR #1. However, PSR #2 specifically noted appellant's objections to both PSR #1 and #2 and indicated that the government "has no objections to the factual content or guideline computations contained in the revised report," but that it "may be filing...

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