U.S. v. Johnson, s. 96-4541

• Decision Date: 04 March 1998
• Docket Number: 97-4596,Nos. 96-4541,s. 96-4541
• Citation: 138 F.3d 115
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keith Bernard JOHNSON, a/k/a Bonji Denard Crane, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Keith Bernard JOHNSON, a/k/a Bonji Denard Crane, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 115

138 F.3d 115

UNITED STATES of America, Plaintiff-Appellee, v. Keith Bernard JOHNSON, a/k/a Bonji Denard Crane,

Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Keith Bernard JOHNSON, a/k/a Bonji Denard Crane, Defendant-Appellant.

Nos. 96-4541, 97-4596.

United States Court of Appeals Fourth Circuit.

Argued Dec. 5, 1997.

Decided March 4, 1998.

ARGUED: Thomas Norman Cochran, Federal Public Defender's Office, Greensboro, North Carolina, for Appellant. Brian Lee Whisler, Assistant United States Attorney, Charlotte, North Carolina, for Appellee. ON BRIEF: William E. Martin, Federal Public Defender, John Stuart Bruce, Deputy Federal Public Defender, Greensboro, North Carolina, for Appellant. Mark T. Calloway, United States Attorney, Charlotte, North Carolina, for Appellee.

Before WILLIAMS, Circuit Judge, WILSON, Chief United States District Judge for the Western District of Virginia, sitting by designation, and MORGAN, United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Chief Judge WILSON wrote the opinion, in which Judge WILLIAMS and Judge MORGAN joined.

OPINION

WILSON, Chief District Judge:

Keith Bernard Johnson appeals the revocation of his supervised release and the resulting consecutive sentences imposed by the court based on two separate convictions, one for producing counterfeit birth certificates in violation of 18 U.S.C. § 1028 and the other for failing to surrender for service of his sentence in violation of 18 U.S.C. § 3146(a)(2). ¹ Johnson makes three arguments. First, Johnson maintains that, when it initially sentenced him, the district court improperly required drug screening, made inadequate findings concerning his ability to pay a fine and the costs of court-appointed counsel, and unconstitutionally delegated the fine payment schedule to the probation office. Second, Johnson argues that the district court improperly imposed consecutive sentences when it revoked his supervised release. Third, he contends that the district court could not reimpose the balance of the fine and costs of court-appointed counsel in the written judgment order revoking his supervised release after it failed to reimpose them in open court. We find that the proper time for Johnson to have challenged the district court's drug screening order and the imposition of the fine and costs of court-appointed counsel would have been in the appeal of the judgment of conviction rather than in this appeal of the district court's revocation order, that the district court properly imposed consecutive sentences, and that the district court did not err when it reimposed Johnson's fine and reimbursement obligation. Accordingly, we affirm.

I.

In April 1993, Johnson pled guilty in the United States District Court for the Western District of North Carolina (Case No. 3:93CR-29-01, hereinafter "CR-29") to producing counterfeit birth certificates in violation of 18 U.S.C. § 1028(a)(1). The court sentenced Johnson to five months imprisonment and three years of supervised release, and assessed a $500 fine to be paid on an installment schedule prepared by the probation office. The district court also imposed the standard conditions of supervised release as well as various special conditions, including drug screening as directed by the probation office, the payment of unpaid fines, and reimbursement for the costs of court-appointed counsel. Johnson did not appeal.

After Johnson failed to surrender for service of his sentence, the grand jury indicted him (Case No. 3:93CR-268, hereinafter "CR-268") for violating 18 U.S.C. § 3146(a)(2). ² A jury found Johnson guilty, and the court sentenced him to sixteen months imprisonment, to run consecutively with his earlier sentence, and two years of supervised release. The court also imposed the standard conditions of supervised release and various special conditions, including drug screening as directed by the probation office, the payment of unsatisfied fines, and the maintenance of lawful employment. Johnson appealed on several grounds. He did not raise any of the grounds he raises in this appeal. This court affirmed in part and remanded with instructions to consider, under 28 U.S.C. § 2255, an ineffective assistance of counsel claim raised by Johnson in the appeal.

Johnson did not fare well on supervised release. Most pertinent to this appeal, Johnson refused to work, falsified work records, made no discernible serious effort to pay his fine, and failed to submit to drug screening on eight occasions. Predictably, the probation office petitioned the court to revoke Johnson's supervised release in both CR-29 and CR-268. At the July 1996 revocation hearing, the district court found that Johnson had violated five of the special conditions of his supervised release in CR-29, including the special condition that Johnson submit to drug screening and the special condition that Johnson pay his fine. The district court also found violations of two of the special conditions of Johnson's supervised release in CR-268, the special condition that Johnson submit to drug screening and the special condition that Johnson maintain lawful employment. The court revoked Johnson's supervised release in each case and sentenced Johnson to consecutive terms of imprisonment, eleven months in CR-29 and ten months in CR-268.

The court entered its written revocation orders on July 15, 1996, imposing the consecutive terms of imprisonment. Additionally, the revocation order in CR-29 noted: "[b]alance of CAC will remain in effect pursuant to SRT Violation Hearing July 1, 1996" and "[f]ine will remain in effect pursuant to SRT Violation Hearing held July 1, 1996." The court did not reimpose supervised release.

II.

We conclude that we lack jurisdiction over Johnson's first argument challenging various special conditions of his supervised release. Rule 4 of the Rules of Appellate Procedure requires the defendant to file his notice of appeal "within 10 days after the entry either of the judgment or order appealed from, or a notice of appeal by the Government." Fed. R.App. P. 4(b). The district court imposed the challenged special conditions in CR-29 in July 1993, and in CR-268 in March 1994. If Johnson found those conditions objectionable, he should have raised his objections in a timely appeal of that initial sentence. An appeal from the revocation order will not suffice. See United States v. Nolan, 932 F.2d 1005, 1007 (1st Cir.1991); United States v. Stine, 646 F.2d 839, 844-45 (3d Cir.1981). ³ Consequently, we decline to review the merits of Johnson's challenges to the special conditions of supervised release imposed by the initial judgements of conviction. ⁴

III.

Johnson argues that 18 U.S.C. § 3624(e) and Chapter 7 of the Sentencing Guidelines do not authorize consecutive sentences for "simultaneous violations of supervised release," and that, even if they do authorize consecutive sentences, the district court abused its discretion when it failed to explain why it imposed them. In arguing that § 3624(e) precludes consecutive sentences, Johnson makes essentially the same argument rejected by the Eighth Circuit in United States v. Cotroneo, 89 F.3d 510, 512-13 (8th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 533, 136 L.Ed.2d 419 (1996), an argument we also reject. According to that argument, because the plain language of § 3624(e) requires terms of supervised release to run concurrently, terms of imprisonment following revocation also must run concurrently. ⁵ See Cotroneo, 89 F.3d at 513. We also reject Johnson's contention that the district court abused it discretion by not demonstrating on the record that it had considered the relevant factors under 18 U.S.C. § 3553(a) when sentencing Johnson. We address Johnson's arguments in turn.

A.

We reject Johnson's contention that § 3624(e) controls the imposition of terms of imprisonment upon revocation of supervised release. Its plain language lends no support for the notion that it governs anything other than "[s]upervision after release." See 18 U.S.C. 3624(e). Instead, § 3584, which governs "[m]ultiple sentences of imprisonment" and which is not limited by its language to terms of imprisonment imposed in the initial judgment of conviction, controls. See 18 U.S.C. § 3584. According to § 3584(a), "[i]f multiple terms of imprisonment are imposed on a defendant at the same time, ... the terms may run concurrently or consecutively." 18 U.S.C. § 3584(a). United States v. Cotroneo is instructive.

In Cotroneo, the defendant was serving concurrent terms of supervised release for credit card fraud and escape. See 89 F.3d at 513. The district court revoked the defendant's supervised release and sentenced him to twenty-four months consecutive imprisonment on each conviction. See id. at 512. The defendant appealed and made the same argument Johnson makes here. See id. at 512-13. The Eighth Circuit concluded that "[b]ecause § 3584(a) is not limited, in terms, to the imposition of sentence at the conclusion of trial (as distinguished from the imposition of sentence after revocation of a defendant's supervised release) ... the District Court retains discretion to impose either concurrent or consecutive sentences after revocation of a defendant's supervised release." Id. at 513. In contrast, the court continued, § 3624(e) "governs the trial court's initial imposition of terms of supervised release, not its subsequent sentencing discretion upon revocation of that supervised release." Id. Accordingly, the Eighth Circuit held that § 3624(e) does not preclude consecutive terms of imprisonment upon revocation of supervised release. See id. Instead, the court concluded, " § 3584(a) allow[s] the District Court to impose consecutive rather than concurrent sentences upon revocation of ... concurrent terms of supervised release." Id. We agree. Accordingly, we hold that the district court had the...