United States v. Johnman, No. 18-2048

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: MATEY, Circuit Judge.
• Citation: 948 F.3d 612
• Parties: UNITED STATES of America v. James JOHNMAN, Jr., Appellant
• Docket Number: No. 18-2048
• Decision Date: 28 January 2020

948 F.3d 612

UNITED STATES of America
v.
James JOHNMAN, Jr., Appellant

No. 18-2048

United States Court of Appeals, Third Circuit.

Argued September 17, 2019
Filed: January 28, 2020

Alison Brill (Argued) Office of the Federal Public Defender 22 South Clinton Avenue Station Plaza #4, 4th Floor Trenton, New Jersey 08609, Counsel for Appellant

William M. McSwain Priya Desouza Nancy Rue Robert A. Zauzmer (Argued) Office of the United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, Pennsylvania 19106, Counsel for Appellee

Before: KRAUSE, MATEY, and RENDELL, Circuit Judges.

OPINION

MATEY, Circuit Judge.

The Justice for Victims of Trafficking Act (JVTA), 18 U.S.C. § 3014, requires a special monetary assessment from all persons "convicted of an offense" under certain federal laws. James Johnman, Jr. was convicted under three of those laws and ordered to pay $5,000 for each conviction, $15,000 in total. That, in Johnman’s view, is too high. He argues the JVTA should be read to impose only one assessment per case, not one assessment per count of qualifying conviction. Using standard tools of statutory interpretation, we conclude the JVTA’s assessment applies to each conviction. So we will affirm the sentence set by the District Court.

948 F.3d 615

I. BACKGROUND

Johnman signed a plea agreement with the United States admitting to three offenses involving the exploitation of children: use of an interstate facility to entice a minor to engage in sexual conduct, in violation of 18 U.S.C. § 2422(b) (Count One); distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2) (Count Two); and possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4) (Count Three). And the plea agreement provides a helpful roadmap to frame the issue in this appeal. First, each count—and the corresponding maximum penalty—appears in an individual subparagraph of the agreement. There, together with the term of imprisonment, supervised release, and other monetary penalties faced, each subparagraph reads, "and a $5,000 special victims assessment under 18 U.S.C. § 3014." (App. at 15–16.) Second, for clarity, a separate subparagraph aggregates all the maximum and mandatory minimum penalties in the three counts, including "an additional $15,000 special victims assessment under 18 U.S.C. § 3014." (App. at 16.) Third, yet another provision of the agreement stipulates that "[Johnman] agrees to pay the special victims and court assessments in the amount of $15,300 before the time of sentencing or at a time directed by this Court."¹ (App. at 17.) And for good measure, the District Court explained the $15,000 assessment at Johnman’s plea hearing. Johnman offered no objections to any of these terms.

Finding the agreement satisfactory, the District Court sentenced Johnman to 368 months of incarceration, a lifetime of supervised release, $1,000 restitution, and $15,300 in special assessments. After the entry of judgment, Johnman filed a notice of appeal. The plea agreement states Johnman waives his right to appeal or collaterally attack his convictions or sentence. (App. at 20.) But it does permit an appeal if "the defendant’s sentence on any count of conviction exceeds the statutory maximum for that count." (App. at 21.)

The United States moved to enforce the appellate waiver and for summary affirmance. A motions panel of this Court directed Johnman to address "whether the District Court’s imposition of a $15,000 special assessment under the Justice for Victims of Trafficking Act, 18 U.S.C. § 3014, was erroneous." (Order Dated Jan. 30, 2019.) We now answer that question, concluding it was not.

II. JURISDICTION AND THE STANDARD OF REVIEW

The District Court had subject matter jurisdiction under 18 U.S.C. § 3231 and we have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. The waiver in Johnman’s plea agreement does not preclude our review because it allows him to challenge a sentence that exceeds the statutory maximum created by Congress. And in any event, the parties cannot bargain for an illegal sentence. See Baker v. Barbo , 177 F.3d 149, 155 (3d Cir. 1999).

Since Johnman failed to object to his sentence before the District Court, we review only for plain error. See Fed. R. Crim. P. 52(b) ; Johnson v. United States , 520 U.S. 461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997). This means "we must decide whether (1) an error occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s] substantial rights.’ " United States v. Payano , 930 F.3d 186, 192 (3d Cir. 2019) (alteration in original) (quoting

948 F.3d 616

United States v. Olano , 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ). We need only consider the first prong, as no error occurred.

III. THE JUSTICE FOR VICTIMS OF TRAFFICKING ACT REQUIRES A $5,000 ASSESSMENT FOR EACH CONVICTION

Congress has repeatedly passed legislation channeling proceeds collected from child sexual abusers to programs supporting victims. Most notably, in 1984, Congress created a mandatory special monetary assessment to fund the Crime Victims Fund. Victims of Crime Act of 1984, Pub. L. No. 98-473, § 1402, 98 Stat. 2170, 2170–71 (codified as amended at 34 U.S.C. § 20101 ). Under that Act, "[t]he court shall assess on any person convicted of an offense against the United States" an amount tied to the severity of the offense. Id. § 1405, 98 Stat. at 2174–75 (codified as amended at 18 U.S.C. § 3013 ). The monies deposited into the Fund flow to eligible crime victim grant programs and antiterrorism efforts. 34 U.S.C. § 20101. Not surprisingly, questions about the meaning of the phrase "convicted of an offense" in § 3013 arose long ago. And some three decades back, we held that § 3013 requires one assessment per count of conviction. See United States v. Donaldson , 797 F.2d 125, 128 (3d Cir. 1986). In quick succession, the Supreme Court and several circuits reached the same conclusion, and the meaning of § 3013 was soon settled.²

In 2015, Congress established the Domestic Trafficking Victims’ Fund and, to provide financial support, created another special monetary assessment applicable to certain crimes involving human trafficking and child exploitation. Pub. L. No. 114-22, § 101, 129 Stat. 227, 228–30 (codified as amended at 18 U.S.C. § 3014 ). Those monies are then used to fund eligible trafficking victim and child abuse assistance programs. 18 U.S.C. § 3014. And relevant here, Congress used nearly identical language in § 3014 as it had in enacting § 3013.

A. The Language of § 3014

With that grounding, "[a]s in any statutory construction case, ‘[w]e start, of course, with the statutory text.’ " Sebelius v. Cloer , 569 U.S. 369, 376, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013) (second alteration in original) (quoting BP Am. Prod. Co. v. Burton , 549 U.S. 84, 91, 127 S.Ct. 638, 166 L.Ed.2d 494 (2006) ). The text of § 3014(a) reads:

In general.—Beginning on the date of enactment of the Justice for Victims of Trafficking Act of 2015 and ending on September 30, 2021, in addition to the assessment imposed under section 3013, the court shall assess an amount of $5,000 on any non-indigent person or entity convicted of an offense under—

(1) chapter 77 (relating to peonage, slavery, and trafficking in persons);

(2) chapter 109A (relating to sexual abuse);

(3) chapter 110 (relating to sexual exploitation and other abuse of children);

948 F.3d 617

(4) chapter 117 (relating to transportation for illegal sexual activity and related crimes); or

(5) section 274 of the Immigration and Nationality Act ( 8 U.S.C. 1324 ) (relating to human smuggling), unless the person induced, assisted, abetted, or aided only an individual who at the time of such action was the alien’s spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law.

"As usual, our job is to interpret the words consistent with their ‘ordinary meaning ... at the time Congress enacted the statute.’ " Wis. Cent. Ltd. v. United States , ––– U.S. ––––, 138 S. Ct. 2067, 2070, 201 L.Ed.2d 490 (2018) (alteration in original) (quoting Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ). Broken down for ease, subsection (a) requires that courts (1) assess (2) an amount of $5,000 (3) on any non-exempt person or entity (4) convicted of an offense (5) under certain enumerated chapters of the criminal code. Thus, how many assessments a court must impose turns on the meaning of the phrase "convicted of an offense" in the subsection. We examine the ordinary meaning of those words individually and in context.

First, an "offense" is "a crime," a "violation of the law." Offense , Black’s Law Dictionary (10th ed. 2014); accord Offense , New Oxford American Dictionary (3d ed. 2010) ("a breach of a law or rule; an illegal act"). Giving this word its ordinary meaning, "offense" is best read to refer to a discrete criminal act. "Convicted," in turn, is the past participle of "convict," which means "to find or declare guilty of an offense or crime [.]" Convict , Webster’s Third New International Dictionary (3d ed. 1993) (emphasis added); accord Convict , Black’s Law...