United States v. Johns

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: TINDER
• Citation: United States v. Johns, 732 F.3d 736 (7th Cir. 2013)
• Decision Date: 31 October 2013
• Docket Number: No. 12–3525.,12–3525.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Curtis JOHNS, Defendant–Appellant.

732 F.3d 736

UNITED STATES of America, Plaintiff–Appellee,

v.Curtis JOHNS, Defendant–Appellant.

No. 12–3525.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 18, 2013.

Decided Oct. 9, 2013.

Rehearing Denied Oct. 31, 2013.

Jessica Romero, Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

Dniel T. Hansmeier, Attorney, Office of the Federal Public Defender, Springfield, Jonathan E. Hawley, Federal Public Defender, Office of the Federal Public Defender, Peoria, IL, for Defendant–Appellant.

Before BAUER, POSNER, and TINDER, Circuit Judges.

TINDER, Circuit Judge.

Curtis Johns pleaded guilty to three counts of possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1). The district court imposed a 120–month concurrent sentence on each of two counts and a 40–month consecutive sentence on the third count for a total, above-guideline sentence of 160 months' imprisonment. Johns appeals his sentence, raising several issues. Because we conclude that the district court erred by imposing a four-level “other felony offense” enhancement under U.S.S.G. § 2K2.1(b)(6)(B), we vacate the sentence and remand for resentencing.

I. BACKGROUND

Johns was indicted with three counts of possession of a firearm as a convicted felon. Count One alleged that he possessed a .20 caliber shotgun in July 2010, Count Two alleged that he possessed a .45 caliber rifle in September 2010, and Count Three alleged that he possessed a loaded .38 caliber revolver in November 2010. Johns pleaded guilty without a plea agreement to all counts. He admitted that he sold a shotgun, rifle, and revolver to a confidential informant (CI) and admitted a factual basis for each count. In addition, Johns admitted that he knew the revolver was loaded. At his plea hearing, the parties agreed that the firearm in Count Two was a .9 millimeter rifle, not a .45 caliber rifle as alleged in the indictment. The district court accepted the guilty pleas and adjudged Johns guilty of the offenses.

A presentence investigation report (PSR) was prepared in advance of sentencing. The PSR stated that Johns and the CI were members of the Wheels of Soul Motorcycle Club (WOS); that Johns knew the CI was a convicted felon and that the CI knew Johns was on probation; and that Johns knew the CI intended to resell the guns for profit. The PSR also alleged that during the first controlled buy, Johns told the CI that he had a second gun that he intended to use in retaliation for the murder of another WOS member and that Johns could get two ounces of crack to sell to the CI in the future. According to the PSR, the .9 millimeter rifle that Johns sold the CI had “dual capacity for fully automatic and semi-automatic” operation and had been stolen. The PSR stated that during an October 2010 recorded conversation, the CI told Johns that he was reselling the guns he had purchased from Johns.

The PSR recommended a base offense level of twenty, seeU.S.S.G. § 2K2.1(a)(4)(B), and four enhancements: (1) two levels because the offense involved three firearms, see§ 2K2.1(b)(1)(A); (2) two levels because the rifle was stolen, see§ 2K2.1(b)(4); (3) four levels because Johns engaged in the trafficking of firearms, see§ 2K2.1(b)(5) (the “trafficking enhancement”); and (4) four levels because he transferred a firearm with knowledge that it would be used or possessed in connection with another felony offense, see§ 2K2.1(b)(6)(B) (the “other felony offense” enhancement). The PSR did not identify the “other felony offense,” but relied on the fact that “[t]he CI informed the defendant he was a convicted felon and he was going to re-sell the firearms for profit.” The PSR also recommended a three-level reduction for acceptance of responsibility, see § 3E1.1, which resulted in a total offense level of 29. The total offense level, combined with a criminal history category of II, yielded a guidelines range of 97 to 121 months' imprisonment. The PSR indicated that “[t]he probation officer ha[d] no information ... which would warrant a departure from the advisory sentencing guideline range.” Among other things, the PSR also noted that Johns had “eight biological children from six relationships” and that he owed $46,189 in child support.

In his sentencing memorandum, Johns objected to the trafficking enhancement and the other felony offense enhancement. He also stated that his youngest daughter was not his biological child, but his fiancée's child.

The government's sentencing memorandum first provided additional factual background for the offense conduct. It stated that in 2011, Johns discussed “the sale of crack cocaine and guns and ammunition” with Allan Hunter, “the WOS leader” who pleaded guilty to RICO conspiracy charges, and they also discussed “gang violence and seeking retaliation within the gang for violence.” (Hunter was the president of the Midwest Region of WOS.) As support, the memorandum cited Exhibit A to the Government's Version of the Offense, which was attached to the PSR. Exhibit A appears to be transcripts of three recorded conversations between Johns and Hunter that occurred in January and February 2011. The memorandum then addressed the three controlled buys and with regard to the third, stated that Johns told the CI that Hunter had asked Johns for a gun and that Johns sold guns to Hunter and Hunter's brother. (Johns seems to suggest that he could not have told the CI in November 2010 that he had sold guns to Hunter because the recorded conversations did not take place until 2011. But the record does not imply that the three recorded conversations represent all of the conversations that ever occurred between Johns and Hunter.)

The government agreed with the PSR that Johns engaged in the trafficking of firearms when he sold three firearms to the CI. While Johns objected that he knew the CI was a convicted felon or intended to use or dispose of the guns in an unlawful fashion, the government responded by arguing that in a recorded conversation, Johns and the CI discussed that the CI was going to sell the firearms Johns supplied him to others for profit, which provided evidence that Johns knew that the CI was going to illegally sell the firearms. The government also argued that the CI advised law enforcement that he had told Johns that he was a convicted felon and on probation and, therefore, Johns knew that the CI could not lawfully possess the firearm. In asserting that the other felony offense enhancement was proper, the government relied on the recorded conversation between Johns and the CI regarding the CI's intention to sell the firearms to others, including Johns's statement that he wanted a cut of the CI's profits. The government requested a within-guidelines range sentence.

At the sentencing hearing, the district court generally followed appropriate sentencing procedures except that it failed to verify that Johns and his counsel had read and discussed the PSR. The court overruled Johns's objection to the trafficking enhancement, finding that Johns “clearly knew what the informant was referring to because he said, oh, if you're going to make money off of reselling these guns, I want a piece of the action” and “knew what was happening to these weapons after he sold them.” The judge also overruled the objection to the other felony offense enhancement, stating that “[i]t was the same issue, which I already ruled on.” The court then adopted the PSR, specifically the total offense level of 29, the criminal history category of II, and the guideline range of 97 to 121 months.

In explaining its sentencing determination, the court found “the record establishes a very strong need in this particular case for deterrence, both in the general sense and in the specific sense.” The court explained that “fully-automatic weapons, shotguns and semiautomatic handguns being sold for profit to members of an active gang involved in violent behavior is a grave, extreme and present active danger to communities.” It noted that Johns was on probation when he engaged in the offense conduct. Then the court considered the § 3553 factors, including Johns's history and characteristics, and took account of “the fact that the defendant has, if I understand it correctly, some eight children from six different relationships,” remarking that “[t]his is not a picture of responsible conduct. It is a rather dark picture, frankly.” The court considered Johns's age, finding it an aggravating circumstance:

He has engaged in this conduct at an age where statistically one might expect for a person who has had a checkered background with the law to be maturing into a less active phase of criminal conduct and to be less likely to be a danger of recidivism. Unfortunately, I don't see that here. It appears the defendant has increased his conduct, the nature and the frequency of it. And, therefore, the Court feels there is a significant danger of recidivism in this particular case.

The court imposed an above-guidelines range sentence:120 months concurrent on Counts One and Two, and 40 months consecutive on Count Three, for a total of 160 months. This is a thirty-three percent upward departure. The court explained its reasons for imposing an above-range sentence:

It's above the range for many of the reasons I've just indicated, including the extreme danger to the community posed by the defendant's conduct; the defendant's statement that he himself was retaining a weapon for use in the commission of revenge for a murder of a gang member; the fact that the defendant knew that the guns were being given to people who were not entitled to them and were being resold at a profit; the violent nature of the people to whom he sold these guns and the activities that they were involved in, which posed extreme dangers to the communities; and the need to protect the public from all of these factors, including the likelihood that the defendant will repeat this type of conduct...