765 F.3d 702 (7th Cir. 2014), 13-3649, United States v. Johnson

Docket Nº:13-3649
Citation:765 F.3d 702
Opinion Judge:Bauer, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DEVIN JACOB JOHNSON, Defendant-Appellant
Attorney:For UNITED STATES OF AMERICA, Plaintiff - Appellee: John K. Mehochko, Attorney, D. Gregory Weddle, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rock Island, IL. For DEVIN JACOB JOHNSON, Defendant - Appellant: Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL; G...
Judge Panel:Before BAUER, KANNE, and SYKES, Circuit Judges.
Case Date:August 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 702

765 F.3d 702 (7th Cir. 2014)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

DEVIN JACOB JOHNSON, Defendant-Appellant

No. 13-3649

United States Court of Appeals, Seventh Circuit

August 27, 2014

Argued May 29, 2014

Page 703

Appeal from the United States District Court for the Central District of Illinois. No. 4:12-cr-40071-JES-JAG-1 -- James E. Shadid, Chief Judge.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: John K. Mehochko, Attorney, D. Gregory Weddle, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Rock Island, IL.

For DEVIN JACOB JOHNSON, Defendant - Appellant: Daniel J. Hillis, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Springfield, IL; George F. Taseff, Attorney, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Peoria, IL.

Before BAUER, KANNE, and SYKES, Circuit Judges.

OPINION

Page 704

Bauer, Circuit Judge.

This is a direct appeal of a criminal sentence against defendant-appellant Devin Johnson (" Johnson" ) for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Johnson presents two challenges in this appeal. First, Johnson argues that the district court erroneously applied a four-level enhancement to his sentence under § 2K2.1(b)(6)(B) for possessing a firearm on another's property in connection with another felony. Second, Johnson argues that the court improperly imposed additional supervised release conditions in its written amended judgment that were not announced orally at his sentencing hearing. For the following reasons, we affirm the district court's imposition of a four-level enhancement to Johnson's sentence and reverse and remand that part of the sentence imposing conditions that were not orally announced at Johnson's sentencing hearing and direct the district court to clarify Johnson's conditions for supervised release.

I. BACKGROUND

On August 12, 2012, Johnson and his girlfriend Alisha Johnson (" Alisha" )1 were at a family barbeque at Alisha's parents' home in Rock Island, Illinois. Also present at the barbeque were Alisha's parents Alton Hunter (" Hunter" ) and Antoinette Johnson (" Antoinette" ), Alisha's sister Annette Johnson (" Annette" ), and several of Alisha's and Annette's children. At some point in the evening, a verbal argument erupted among Alisha, Annette, and Hunter regarding laundry. Johnson attempted to interject himself into the argument, at which point Hunter told Johnson to stay out of it; that the issue was a family matter that did not concern him. Hunter asked Alisha to take the laundry and leave; Johnson and Alisha then left the house.

Several hours later, Hunter, Antoinette, and Annette heard a knock on a window of the house and a voice say, " Come outside." The three went to the back door and observed Alisha in the doorway, another man in the alley beyond the yard, and Johnson. Johnson was wearing black clothing, dark gloves, and pointing a black handgun directly at Hunter. Antoinette went back into the house to call the police, informing them that Johnson was at her home wearing black gloves, a black shirt, and a black baseball hat and that he had a black gun. Hunter calmly told Johnson to leave and said, " You going to shoot me, shoot me." Johnson chose to leave, going back to the alley with Alisha and leaving in a red SUV.

Officers arrived at Hunter's home and searched the alley. They discovered an Intratec TEC-9 handgun, its loaded high-capacity magazine, and a dark work glove a short distance from Hunter's house. Shortly thereafter, police stopped the vehicle in which Johnson, Alisha, and the other man were riding. Johnson was charged in a single-count indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Johnson pleaded not guilty.

At trial, the government called several witnesses including Hunter, Antoinette, and Officers Eugenio Barrera (" Officer Barrera" ) and Scott Gable (" Officer Gable" ) of the Rock Island Police Department.

Page 705

Officer Barrera testified that he was on duty on August 12, 2012, when he received a call from a dispatcher that there was a man with a gun at Hunter's address. When he arrived, Antoinette told Officer Barrera that Johnson left in a red SUV. Officer Barrera and his partner searched the alley behind Hunter's home and discovered a brown work glove and a stray merchandise tag approximately 100 meters from the residence. He then found a gun clip and a TEC-9 firearm with an obliterated serial number. The gun did not have weather damage. Officer Barrera also identified the glove he recovered from the alley, the gun clip and ammunition, the TEC-9 firearm, and a second glove recovered from the red SUV that he saw after returning to the Rock Island County Jail.

Officer Gable testified that he was working on August 12, 2012, when he received a call from dispatch identifying a fleeing suspect as Devin Johnson, that he had a black gun, and that he left the scene in a red truck. A subsequent update informed Officer Gable that the vehicle was a red Chevy Blazer type vehicle. Not long after the call from dispatch, Officer Gable saw a vehicle matching that description and pulled it over. Inside he discovered Johnson, Alisha, and another man Antonio Metcalf. Officer Gable testified that he observed marijuana in the vehicle. Johnson admitted to Officer Gable that he owned the drugs and was arrested. With Alisha's consent, Officer Gable searched the vehicle and found one dark work glove.

The government then called Antoinette who testified that her family was having a barbeque in their backyard when an argument began regarding Alisha's children's clothes. Antoinette stated that Hunter told Alisha to take the clothes and leave. A while later, Antoinette heard a knock on the living room window and a voice say, " Come outside." When she followed Hunter into the backyard, Antoinette saw Johnson with a black gun in his hand pointed at her husband and ran inside to call police.

Hunter then testified, consistent with his wife, about the argument that occurred and that he told Alisha to leave. Hunter said he watched Alisha and Johnson get into their car and drive away. Later, after hearing a knock on the window, Hunter said he went out the back door to see Johnson wearing dark gloves and pointing a long, black gun at him. Hunter testified that he told Johnson to " put the gun down" and " you going to shoot me, shoot me." Although unable to identify the gun at trial, Hunter identified Johnson and testified that he had known Johnson for fifteen to twenty years. After a three-day trial, a jury found Johnson guilty as charged.

At Johnson's sentencing hearing, the district court found that Johnson possessed a firearm on another's property in connection with another felony, and therefore applied a four-level enhancement under § 2K2.1(b)(6)(B) (" If the defendant ... [u]sed or possessed any firearm or ammunition in connection with another felony offense ... increase by 4 levels." ). The...

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