U.S. v. Johnson

• Decision Date: 28 June 2011
• Docket Number: No. 10–2503.,10–2503.
• Citation: 643 F.3d 545
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Willie Earl JOHNSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

643 F.3d 545

UNITED STATES of America, Plaintiff–Appellee,

v.Willie Earl JOHNSON, Defendant–Appellant.

No. 10–2503.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 16, 2011.Decided June 28, 2011.

Matthew M. Getter (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.Thomas R. Mikrut, Attorney, Foley & Lardner, LLP, Chicago, IL, Brian H. Potts (argued), Attorney, Foley & Lardner LLP, Madison, WI, for Defendant–Appellant.Before POSNER, FLAUM, and SYKES, Circuit Judges.FLAUM, Circuit Judge.

This panel vacated Willie Earl Johnson's conviction for conspiring to distribute drugs and remanded to the district court to resentence him on his two remaining convictions. See United States v. Johnson, 592 F.3d 749 (7th Cir.2010). After resentencing, Johnson appeals again, this time arguing that the district court committed procedural errors at resentencing and erred in reaching its relevant conduct finding. With some reluctance, we affirm the relevant conduct finding. But we remand because the district court did not respond to Johnson's repeated requests for a reduced crack-to-powder ratio.

I. Background

Johnson and eight other defendants were indicted on charges related to selling crack cocaine and heroin in and around Aurora, Illinois, from approximately 2002 until 2005. Johnson was charged with conspiring to distribute and to possess with intent to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count One), possessing with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) (Count Eleven), and utilizing a telephone to facilitate a felony drug crime, in violation of 21 U.S.C. § 843(b) (Count Twelve). Seven Defendants pled guilty, while Johnson and his co-defendant Ismael Garza went to trial.

A jury found Johnson guilty on all three counts and concluded in a special verdict that he was accountable for between five and fifty grams of crack. At his first sentencing hearing, the district court attributed 31.5 grams of crack to him and sentenced him to 72 months' imprisonment on Counts One and Eleven, and 48 months' imprisonment on Count Twelve, to run concurrently.

On appeal, we vacated Johnson's conviction on Count One due to insufficient evidence, but affirmed his remaining convictions on Counts Eleven and Twelve. Johnson, 592 F.3d at 759. Accordingly, we remanded for resentencing on Counts Eleven and Twelve because the jury's special verdict assigning a quantity of five to fifty grams of crack was vacated with the conspiracy count. Id.

On remand, at Johnson's second sentencing hearing, the parties disputed whether phone calls between Johnson and Craig Venson, the kingpin of drug conspiracy, supported a relevant conduct finding under United States Sentencing Guidelines (“U.S.S.G.”) § 1B1.3 based on drug transactions discussed in the calls, and, if so, the quantities and types of drugs for which Johnson was responsible. Johnson also requested a 1:1 crack-to-powder ratio, instead of 100:1.

The district court found by a preponderance of the evidence that Johnson was accountable for 23 grams of crack and calculated a guidelines range of 92 to 115 months. After considering the factors in § 3553(a), the district court sentenced him to 72 months' imprisonment on Count Eleven and 48 months' imprisonment on Count Twelve, to be served concurrently.

II. Analysis

A. The Crack/Powder Disparity at Sentencing

Johnson argues that the district court committed a procedural error at resentencing by not expressly responding to his repeated requests for a 1:1 crack-to-powder ratio. We review de novo whether the district court followed proper sentencing procedures. United States v. Coopman, 602 F.3d 814, 817 (7th Cir.2010).

We agree with Johnson that the district court erred. A sentencing court need not respond expressly to every argument a defendant makes, but it must address “ ‘all of a defendant's principal arguments that are not so weak as to not merit discussion.’ ” United States v. Arberry, 612 F.3d 898, 899 (7th Cir.2010) (quoting United States v. Villegas–Miranda, 579 F.3d 798, 801 (7th Cir.2009)). At resentencing, the district court briefly discussed some of the factors in § 3553(a). But it never responded to Johnson's repeated requests for a reduced ratio. Johnson specifically referenced the district court's authority “to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines,” Spears v. United States, 555 U.S. 261, 129 S.Ct. 840, 844, 172 L.Ed.2d 596 (2009), listed policy grounds that have motivated other sentencing courts to apply a reduced crack-to-powder ratio, and asked multiple times for a reduced ratio. His argument for a reduced ratio was one of his primary contentions at resentencing and was certainly not so weak as to not merit discussion. See id. at 843–44; Kimbrough v. United States, 552 U.S. 85, 91, 110, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007); Arberry, 612 F.3d at 899–901. In fact, numerous other judges in the Northern District of Illinois have applied lower ratios. See, e.g., United States v. Edwards, No. 04–cr–1090–5, slip op. at 6, 2009 WL 424464, at *3 (N.D.Ill. Feb. 17, 2009) (Gottschall, J.) (concluding “that a 10:1 ratio is all that can possibly be justified” in light of “evidence that the harms produced by powder and crack are essentially the same (with the unquantifiable possibility that crack may be more addictive)”); United States v. Rodriguez, No. 08–cr–509–1, slip op. at 4–5, 2009 WL 1811001, at *2 (N.D.Ill. June 23, 2009) (Darrah, J.) (applying a 20:1 ratio).

Our holding in United States v. Arberry, 612 F.3d 898 (7th Cir.2010), is directly on point. In that case, we vacated a defendant's sentence and remanded for resentencing because the district court did not respond to the defendant's argument for a 1:1 ratio, which was one of his principal arguments at sentencing. Id. at 900–01.

We disagree with the government's contention that Arberry is meaningfully distinct because the defendant in that case received a within-guideline sentence, albeit on the low end of the applicable guideline range, and Johnson received a below-guideline sentence. Id. at 899. Arberry applies because the district court there, as here, did not respond to a criminal defendant's principal, plausible argument for a reduced crack-to-powder ratio. The government points out that we wrote in United States v. Poetz, 582 F.3d 835 (7th Cir.2009), that the “requirement that the district court specifically address the defendant's principal, potentially meritorious sentencing arguments applies with less force” where “the judge received voluminous evidence and listened carefully to [the defendant's] arguments ... and in the end imposed a short prison sentence significantly below the applicable guidelines range.” Id. at 837. Arberry's force may be weakened, but it still applies.

We also reject the government's argument that the district court implicitly addressed Johnson's request for a lower ratio. See, e.g., United States v. Carrillo–Esparza, 590 F.3d 538, 540 (7th Cir.2010); Poetz, 582 F.3d at 837–40. The government directs us to Poetz, which we find distinct because the record in that case demonstrated that the district court considered the defendant's arguments about her and her family's medical problems and the impact of incarceration as opposed to home confinement on her family, even though it did not expressly address each argument on the record. 582 F.3d at 837–40. Specifically, we explained that “Poetz's health problems took center stage” during sentencing, and “the judge imposed a sentence substantially below the applicable guidelines range largely because of her medical condition.” Id. at 838. We also found that the district court implicitly expressed that it believed imprisonment, as opposed to home confinement, was necessary based on a portion of the record where “[t]he judge explained that despite Poetz's medical issues, a period of incarceration was ‘fundamentally required’ to promote respect for the law, provide for deterrence, and hold Poetz accountable for her breach of the trust placed in stewards of public funds.” Id. We concluded that “ ‘anyone acquainted with the facts would have known without being told why the judge had not accepted the argument.’ ” Id. (quoting United States v. Cunningham, 429 F.3d 673, 679 (7th Cir.2005)). Finally, we explained that Poetz's argument about the effect of incarceration on her family lacked legal support and, regardless, we found that the district court implicitly considered her argument based on the fact that the judge had voluminous evidence before him substantiating the argument and “[his] sentencing remarks [we]re peppered with references to [Poetz's] family.” Id. at 839.

Unlike in Poetz, the record provides no indication that the district court implicitly considered Johnson's argument for a reduced ratio. Although Johnson received a below-guideline sentence, we have no basis to conclude that his sentence had anything to do with the crack/powder disparity. To the contrary, it appears that the district court calculated Johnson's guideline range based on a 100:1 ratio and showed no receptiveness to his argument for a reduced ratio. We have no grounds to conclude that the district court applied a reduced ratio, as opposed to setting a below-guideline sentence based on a 100:1 ratio, or that the district court's decision to impose a below-guideline sentence was in any way related to the crack/powder disparity. We cannot assume that the district court implicitly considered Johnson's argument for a reduced ratio merely because it imposed a below-guideline sentence. Rather, we assume only that if the district court had applied a reduced ratio or decided to impose a below-guideline sentence based on the crack/powder disparity, it would have expressly or implicitly indicated as much on the record.

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