U.S. v. Johnson, 10–1737.

• Decision Date: 24 March 2011
• Docket Number: No. 10–1737.,10–1737.
• Citation: 635 F.3d 983
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Henry D. JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

635 F.3d 983

UNITED STATES of America, Plaintiff–Appellee,

v.Henry D. JOHNSON, Defendant–Appellant.

No. 10–1737.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 14, 2010.Decided March 24, 2011.

Joseph H. Hartzler (argued), Attorney, Office of the United States Attorney, Springfield, IL, for Plaintiff–Appellee.Erin R. Schrantz (argued), Attorney, Jenner & Block LLP, Chicago, IL, for Defendant–Appellant.Before POSNER, RIPPLE and ROVNER, Circuit Judges.RIPPLE, Circuit Judge.

A jury in the United States District Court for the Central District of Illinois convicted Henry Johnson of several crimes related to the possession and sale of crack cocaine. The district court sentenced Mr. Johnson to life in prison. In his initial appeal, we affirmed the convictions, but we reversed the sentence and remanded to allow the district court to take account of the Supreme Court's intervening decision in Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). See United States v. Johnson, 584 F.3d 731, 740 (7th Cir.2009). On remand, the district court again imposed a sentence of life imprisonment, and Mr. Johnson now appeals. We conclude that our prior remand did not permit relitigation of the drug quantity. We further conclude that the district court procedurally erred because it did not determine, after considering the sentencing factors under 18 U.S.C. § 3553(a), that resentencing Mr. Johnson under his guideline range of natural life in prison was “sufficient, but not greater than necessary, to comply with” § 3553(a)(2). Id. § 3553(a). Therefore, we must vacate and remand for this determination.

IBACKGROUND

A. Prior Proceedings

We presume familiarity with the facts as stated in our previous opinion. After he was arrested in Quincy, Illinois for selling crack cocaine and marijuana to a government informant, Mr. Johnson was charged with operating a drug trafficking conspiracy. The jury convicted him of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848 and nine other drug-related offenses.

The prescribed statutory minimum for the continuing criminal enterprise conviction was twenty years' imprisonment; the maximum was life. At the sentencing hearing, the district court attributed over ten kilograms of crack to Mr. Johnson. Because of its 100:1 crack-to-powder cocaine ratio, the United States Sentencing Guidelines prescribed that Mr. Johnson's offense level warranted a punishment of life imprisonment. The district court sentenced Mr. Johnson accordingly. Johnson, 584 F.3d at 733.

In his first appeal, Mr. Johnson principally challenged his convictions, but he also included in his brief three sentences which disputed the district court's calculation of the quantity of drugs attributed to his convictions. Specifically, Mr. Johnson asserted, the evidence had not established whether he had dealt in crack or powder cocaine. Had he been dealing the latter, his offense level would have been much lower.

While the original appeal was pending, we determined that the court would benefit from the assistance of amicus counsel, and we therefore appointed counsel to file a brief on behalf of Mr. Johnson. During this period, the Supreme Court decided Kimbrough, which held that “the district court may sentence a crack offender below the guidelines range if it believes the 100:1 ratio results in a greater sentence than is necessary under the sentencing factors set forth in 18 U.S.C. § 3553(a).” Johnson, 584 F.3d at 740. Prior to that holding, the law of our circuit had required district courts to apply the ratio regardless of whether the district court thought its application unreasonable in any specific instance. See id. (citing United States v. Taylor, 520 F.3d 746, 746–47 (7th Cir.2008); United States v. Miller, 450 F.3d 270, 275 (7th Cir.2006)).

After preserving the arguments from Mr. Johnson's first brief, the amicus, like Mr. Johnson, principally challenged the convictions. The brief did not contest the quantity of crack cocaine attributed to Mr. Johnson, but it did request a remand to allow the district court to decide whether it believed application of the crack-to-powder ratio appropriate in Mr. Johnson's case. The Government agreed with this request.

We affirmed Mr. Johnson's convictions and accepted the parties' agreement that Mr. Johnson should be resentenced in light of Kimbrough. See Johnson, 584 F.3d at 740. We explained that the remand was necessary “so that the district court may consider whether the disparate treatment of crack versus powder cocaine under the guidelines ... renders his life sentence unreasonable.” Id. Our opinion made no mention of Mr. Johnson's contention regarding the drug-quantity calculation.

B. Proceedings Before the District Court on Remand

On remand, Mr. Johnson asked the district court to reconsider the quantity of drugs attributed to him. The court refused, for three reasons: the scope of the remand did not permit the challenge; the law-of-the-case doctrine precluded relitigation of the issue; and Mr. Johnson waived the contention by not raising it adequately in his first appeal.

Mr. Johnson next urged the district court to disregard the Guidelines' 100:1 crack-to-powder ratio. He contended that the negative effects of crack and powder cocaine are virtually identical, that the ratio leads to harsher sentences for low-level dealers than for major drug traffickers and that the Department of Justice believes that Congress should eliminate the ratio. He requested the court to impose a sentence of twenty years' imprisonment—the statutory mandatory minimum sentence for a continuing criminal enterprise conviction, see 21 U.S.C. § 848(a). According to Mr. Johnson, such a sentence would be “sufficient but not greater than necessary to achieve the purposes of sentencing articulated in 18 U.S.C. [§ ] 3553.” R.195 at 11.

In evaluating Mr. Johnson's contentions, the court recognized that “an argument can be made that the powder cocaine is at least approximating the evil of the crack cocaine.” Id. at 42. It also noted that

the House of Representatives of the Congress has passed a bill recently that would do away with the disparity between powder cocaine and cocaine base or crack. However, the United States Senate, it is my understanding, has passed a bill that would change the ratio from 100 to 1 to 20 to 1.

The entire Congress hasn't agreed on anything as of this moment, but it looks like there is some movement afoot to at least reduce the disparity between the two drugs.

Id. at 43.

In light of these inconclusive developments, the court determined that it should not deviate from the Guidelines: “[E]ven though I recognize that I could disregard the guideline range with respect to the calculation of the cocaine and the crack cocaine and the disparity, I don't think it is appropriate to do so at this time.” Id. at 48. In the court's view, “the more prudent approach is to let Congress do whatever it chooses to do in the end.... [T]he more prudent thing is to wait until that happens rather than to have each judge in America just winging it, doing what he or she thinks ought to be the way it comes out.” Id. at 44.

The court also expressed its concern that, by departing from the ratio in Mr. Johnson's case, it would be creating a disparity between Mr. Johnson and “those people who are locked into sentences who, at this point anyway, cannot get back in front of a court for re-sentencing.” Id. at 42. Whereas these other people “are stuck with tremendous sentences,” the court explained, Mr. Johnson “would get a much lower” one. Id. Such disparity could “create [ ] certain disciplinary problems in the prison population.” Id. at 43.

Next, the court referenced the sentencing factors listed in 18 U.S.C. § 3553(a), partially by adopting its discussion of those factors from Mr. Johnson's first sentencing hearing. After reiterating its concern that deviating from the ratio would create sentencing disparities, the court discussed the details of the crime: Mr. Johnson dealt “a tremendous quantity of drugs” and was “not a low[-]level dealer.” Id. at 45. His criminal activity in the Quincy area lasted for ten years, and Mr. Johnson, as leader of a gang, was “insulated” from easy detection and capture. Id. at 45–46. Moreover, Mr. Johnson organized gang meetings, assigned responsibilities to other members, moved gang operations when police were approaching and “meted out” punishments to errant underlings. Id. at 46. The court directed Mr. Johnson to “[t]hink about all the young people in the Quincy area who became addicted to cocaine because of your activity” and observed, “This is a serious bunch of crimes, that's why the guideline range was so high.” Id. at 47.

Finally, the court repeated that Congress, not the court, should remedy any injustice in Mr. Johnson's life sentence. It predicted that, to ameliorate unduly harsh sentences for crack offenses, “there will be some remedial action taken by the Congress and Sentencing Commission concerning cocaine base and powder cocaine in terms of that disparity and how they are counted.” Id. The court even stated that it wished to “hold[ ] out hope” to Mr. Johnson that the disparity eventually would be resolved, id., and hinted that Mr. Johnson deserved future relief: “[A]t such time as the Congress and the Commission act, it's likely you will have relief at some juncture thereafter.” Id. at 48. Again, however, the court emphasized that “the more prudent approach is to wait until that happens” and then “give the opportunity to everyone who is under such sentences to be re-sentenced as well.” Id. at 47. The court then reimposed the original sentence of natural life, stating, however, that it was doing so “regrettably.” Id. at 48.

IIDISCUSSION

A. Standard of Review

We review de novo Mr. Johnson's contention that the district court failed to appreciate the advisory nature of the Sentencing Guidelines. United States...