U.S. v. Johnson

• Decision Date: 31 October 2006
• Docket Number: No. 05-6309.,05-6309.
• Citation: 467 F.3d 559
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Undrae JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

467 F.3d 559

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Undrae JOHNSON, Defendant-Appellant.

No. 05-6309.

United States Court of Appeals, Sixth Circuit.

Submitted: July 26, 2006.

Decided and Filed: October 31, 2006.

ON BRIEF:

M. Dianne Smothers, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before MOORE, CLAY, and GRIFFIN, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. GRIFFIN, J. (pp. 566-571), delivered a separate dissenting opinion.

OPINION

CLAY, Circuit Judge.

Defendant, Timothy Undrae Johnson, appeals to this Court his sentence for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Defendant claims that the sentence imposed by the district court was not "reasonable" in light of United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) inasmuch as the district court failed to properly consider the statutory sentencing factors of 18 U.S.C. § 3553(a).

For the reasons set forth in this opinion, we VACATE Defendant's sentence and REMAND this case to the district court for resentencing.

I.

Defendant, Timothy Undrae Johnson, was involved in an altercation with another individual in a Jackson, Tennessee bowling alley. Defendant allegedly threatened to shoot that individual, and revealed a small handgun that he was carrying in his pocket. Police were called to the scene, and a subsequent pat-down by the responding officer uncovered a loaded Bryco Arms .25 caliber handgun hidden on Defendant's person. Defendant was arrested and taken into custody.

An investigation by the United States Probation Department ("Probation Department") revealed that Defendant was on probation at the time that he committed the offense in this case, having been previously convicted on February 9, 2004, of felony aggravated assault in the Circuit Court of Crockett County, Tennessee. Defendant had served thirty days jail time on that conviction, which was to be followed by three years probation with the Tennessee Department of Corrections. As a result of the arrest at the bowling alley, Defendant was taken back into the custody of the Crockett County authorities. A state court hearing was held on July 8, 2005, and an order was issued by the Circuit Court of Crockett County, Tennessee, revoking Defendant's probation, and ordering that Defendant be remanded back into the custody of the Tennessee Department of Corrections to serve out the remainder of his sentence.

A presentence investigation report ("PSR") was prepared by the Probation Department prior to Defendant's sentencing hearing before the district court. According to the PSR, Defendant's total offense level was 17. Defendant was given 3 criminal history points, which put him in a criminal history category II, for an advisory sentencing range of 27 to 33 months. At the sentencing hearing, Defendant's counsel informed the district court that the Probation Department was likely going to recommend that the criminal history points be increased to 5 points instead of 3, on the basis of the state court revocation order. Such an increase would place Defendant in a criminal history category III, which carries an advisory Guidelines sentencing range beginning at 30, rather than 27 months. The probation officer who prepared the PSR testified that this amendment would in fact be appropriate.

Defendant then claimed before the district court that it was his understanding from his state court hearing that the state court judge did not intend that he [Defendant] should serve the balance of his time, but rather that the state court judge intended that Defendant be given 221 days credit on his sentence, and that the remainder of his sentence be suspended.¹ As a result of Defendant's "confusion" on the matter, Defendant's counsel requested that the district court postpone sentencing in Defendant's federal case in order to allow counsel time to return to the state court to get clarification on the revocation order.

The district court refused, stating that as a policy matter, the federal courts should not put off sentencing until after the state courts resolve their sentencing issues because to do so would open the door for every federal defendant to say, "[w]ait a minute, that state conviction's not right. I need to go get it fixed before you sentence me." (J.A. at 39) The district court went on to remark that it was going to proceed with sentencing since "these guidelines are advisory only now, I'm not going to be bound by these criminal history point determinations nearly as severely as I was previously." (J.A. at 40) The district court denied Defendant's request for additional time, and accepted the probation officer's amended calculations. The district court then proceeded to sentence Defendant, stating the following:

Mr. Johnson, I'm not required to use these guidelines as the exact sentence, but I'm supposed to consider these guidelines. In my judgment, these guidelines do reflect an appropriate range of sentences. There's an overlap between the one that was previously calculated, 27 to 33 months, and the new one, 30 to 37 months; so I'm going to— Since you were at the top of the criminal history scored under the previous calculations and you're at the middle of the criminal history score under the current calculations, I'm going to overlap those and give you a sentence that would be appropriate under either range. It seems to me, Mr. Johnson, that a sentence of 30 months in the Bureau of Prisons is an appropriate sentence, so I'm going to commit you to the custody of the Bureau of Prisons for a term of 30 months.

(J.A. at 41) At counsel's request, the district court also agreed to recommend a long-term drug treatment program for Defendant.

II.

We review the district court's sentence and exercise of discretion (if any) for "reasonableness." United States v. Jones, 399 F.3d 640, 650 (6th Cir.2005); see also United States v. Webb, 403 F.3d 373, 383 (6th Cir.2005). In determining reasonableness, this Court reviews the "the factors evaluated and the procedures employed by the district court in reaching its sentencing determination." Webb, 403 U.S. at 383, 91 S.Ct. 1848.

We hold here that the district court's sentence is not procedurally reasonable under Booker. "Section 3553(a) instructs district courts to impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in that section." United States v. Foreman, 436 F.3d 638, 643 (6th Cir.2006) (quotations omitted). Although no longer bound by the Guidelines, district courts are still required to consider the applicable Guideline range along with the other statutory factors.² Booker, 543 U.S. at 245-46, 125 S.Ct. 738. "Both district courts imposing sentences in the first instance as well as appellate courts reviewing sentences on appeal are to be guided by the factors set forth in 18 U.S.C. § 3553(a)." United States v. Jackson, 408 F.3d 301, 304 (6th Cir.2005). Under this new scheme, "district courts are required to consider the applicable Guidelines sentencing range when arriving at a defendant's sentence, ... but only as one factor of several laid out in § 3553(a)." Id. (internal citations omitted). As such, this Court "may conclude that a sentence is unreasonable when the district judge fails to `consider' the applicable Guidelines range or neglects to `consider' the other factors listed in 18 U.S.C. § 3553(a), and instead simply selects what the judge deems an appropriate sentence without such required consideration." Webb, 403 F.3d at 383 (internal quotations omitted). "A sentence within the Guidelines carries with it no implication that the district court considered the 3553(a) factors if it is not clear from the record." Foreman, 436 F.3d at 644.

We find persuasive Defendant's argument that the district court failed to consider the other § 3553 factors, and sentenced him solely on the basis of the Guidelines. Despite the fact that the district court expressly acknowledged that the Guidelines are now advisory, and that the Guidelines are only one factor that should be considered, the district court failed to state on the record that it was considering any of the other § 3553 factors. In fact, the district court provides no indication at all of why it felt that Defendant's sentence was appropriate, other than to state that it was appropriate under the Guidelines. While it is true that the district court is not required to explicitly go through each sentencing factor, the district court is required to provide this Court with some evidence on the record that the § 3553(a) factors were considered. See Webb, 403 F.3d at 385 n. 8 ("Post-Booker we continue to expect district judges to provide a reasoned explanation for their sentencing decisions in order to facilitate appellate review."); Jackson, 408 F.3d at 305 ("Although we are fully cognizant of the fact that district courts are no longer bound by the Guidelines in the manner they once were ... we nonetheless find that, pursuant to Booker, we as an appellate court must still have the articulation of the reasons why the district court reached the sentence ultimately imposed, as required by 18 U.S.C. § 3553(c)."). Absent such articulation on the record that the § 3553(a) factors were considered, we are unable to review Defendant's sentence for reasonableness, and we decline to find that a sentence within the Guidelines range is reasonable.

III.

Rather than remand this case to the district court for resentencing, the dissent would disregard the Booker violation as harmless error³ and affirm Defendant's sentence notwithstanding the district court's failure to provide "sufficient evidence in the record to affirmatively demonstrate the court's consideration of [the § 3553(a) factors]." See United...