United States v. Johnson

• Decision Date: 27 August 2014
• Docket Number: No. 13–3649.,13–3649.
• Citation: 765 F.3d 702
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Devin Jacob JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

765 F.3d 702

UNITED STATES of America, Plaintiff–Appellee,

v.Devin Jacob JOHNSON, Defendant–Appellant.

No. 13–3649.

United States Court of Appeals,

Seventh Circuit.

Argued May 29, 2014.

Decided Aug. 27, 2014.

John K. Mehochko, Rock Island, IL, Greggory R. Walters, Peoria, IL, for Plaintiff–Appellee.

Before BAUER, KANNE, and SYKES, Circuit Judges.

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.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 court found that Johnson committed the underlying felony offense of Aggravated Unlawful Use of a Weapon (AUUW). In relevant part, the AUUW statute states:

(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person, except when ... on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver,stun gun or taser or other firearm; and

(3) One of the following factors is present:

(H) the person possessing the weapon was engaged in the commission or attempted commission of a misdemeanor involving the use or threat of violence against the person or property of another.

720 ILCS 5/24–1.6(a)(1), (a)(3)(H).

With the four-level enhancement, Johnson's Guidelines range was 135 to 168 months' imprisonment; without the enhancement, his Guidelines range was 92 to 115 months' imprisonment. For violations of § 922(g), the criminal code provides a ten-year (120–month) maximum penalty. 18 U.S.C. § 924(a)(2).

At the sentencing hearing, the court listened to both sides' arguments involving the various factors under 18 U.S.C. § 3553. Johnson's counsel also acknowledged that Johnson had issues with his mental health and substance abuse. Counsel requested that Johnson receive “a comprehensive medical and psychiatric evaluation” by the Bureau of Prisons and that he participate in a drug and alcohol treatment program while incarcerated.

Relying on the factors under § 3553, the Presentence Report prepared by the probation office, the severity of Johnson's offense, the need to protect the public and deter others, and Johnson's “unbroken chain of criminal behavior,” the court determined that an appropriate sentence would be close to the ten-year maximum. The court chose a sentence of 108 months' imprisonment, a sentence in the middle of the appropriate Guidelines range had the court not imposed the four-level enhancement. With the enhancement, Johnson's sentence was well below the Guidelines range. The court noted that:

[T]he thing that really aggravates [the offense] is it wasn't a situation where Mr. Johnson pulled a gun out right then and there in the middle of this heated argument. That argument was diffused and resolved and the parties believe Mr. Johnson is gone for a period of a couple of hours, I believe. Then he comes back. He came back with a gun.... And he didn't just get any gun, he had a TEC–9 fully loaded.... That's not heat of the moment ... he made that decision after being given the opportunity to deliberate and think about it. He decided the way to handle that was to go and get a gun. Something in his criminal history demonstrates, he is pretty fond of doing.

Finally, the court imposed a three-year term of supervised release. The court orally announced the following conditions:

While on supervised release, not commit another federal, state or local crime.

Not possess a controlled substance.

Submit to drug tests as directed.

Cooperate in the collection of DNA as directed.

Not possess a firearm, ammunition or destructive device or other dangerous weapon.

In addition, participate in psychiatric services or program of mental health counseling as directed.

Refrain from the use of alcohol.

Not purchase, possess, use, distribute or administer any controlled substance except as prescribed by a physician.

The court found that Johnson did not have the ability to pay a fine, so no fine was...