United States v. Johnson

Decision Date23 February 2022
Docket NumberNo. 20-6249,20-6249
Citation26 F.4th 726
Parties UNITED STATES of America, Plaintiff-Appellee, v. Michael B. JOHNSON, II, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Nashville, Tennessee, for Appellant. Brian Samuelson, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Nashville, Tennessee, for Appellant. Brian Samuelson, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: MOORE, CLAY, and READLER, Circuit Judges.

CLAY, J., delivered the opinion of the court in which MOORE, J., joined. READLER, J. (pp. 741–50), delivered a separate opinion concurring in part and dissenting in part.

CLAY, Circuit Judge.

Defendant Michael B. Johnson, II ("Johnson" or "Defendant Johnson") appeals the district court's order denying his motion for a sentence reduction pursuant to section 404 of the First Step Act of 2018 ("First Step Act" or "the Act"), Pub. L. No. 115-391, § 404, 132 Stat. 5194, 5222 (2018). Johnson argues that the court's 300 month sentence for his 2006 drug and firearm convictions is procedurally and substantively unreasonable. For the reasons set forth below, we REVERSE the district court's order denying Johnson's First Step Act motion, VACATE his sentence, and REMAND to the district court for further proceedings in accordance with this opinion.

I. BACKGROUND
A. Factual Background

Johnson's 300 month sentence stems from a 2004 arrest in Chattanooga, Tennessee. In April of that year, police executed a search warrant at the Chattanooga home of Akil Lee, a friend of Johnson's and a defendant whom the government charged separately in relation to this incident. After forcefully entering Lee's home, officers stated that they saw two people run out the back door of the house as Johnson entered a bedroom. The police followed Johnson into the bedroom and found him in an adjacent bathroom where the officers allegedly recognized "crumbs" of what appeared to be "easily an ounce" of crack cocaine in the toilet, which was already flushing when they arrived. United States v. Johnson , 308 F. Appx 968, 970 (6th Cir. 2009) ; (see also Presentence Investigation Report ("PSR"), Case No. 09-5658, ECF No. 5 at 4, ¶ 8). They did not recover any drugs in the bathroom. Officers then searched Johnson's person and found 230 dollars in his pocket. They did not find or recover any drugs from Johnson's person.

Officers then searched Lee's home and found a revolver lying in a box with trash, allegedly along the route that Johnson took into the bedroom and toward the bathroom. In the living room, they also found a set of digital scales, 0.9 grams of crack cocaine, and a bag containing 110 white pills. Johnson initially denied that any of these items were his. However, when the police interrogated him, Johnson eventually admitted to possessing the firearm and 0.9 grams of crack cocaine.

The district court tried Johnson in December of 2005, and a jury found him guilty of (1) conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C. §§ 846 and 841(a)(1) ; (2) possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) ; (3) possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and 18 U.S.C. § 2 ; and (4) possession of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1)(A)(i) and § 2. Following the jury's verdict, Johnson filed a motion for acquittal and/or a new trial.1 Johnson , 308 F. Appx at 971. The court denied Johnson's motion and proceeded to sentencing. Id.

In December of 2006, the district court sentenced Johnson to 360 months of imprisonment followed by a four-year term of supervised release. The court explained that Johnson's sentence reflected the court's belief that he was a career offender for purposes of § 4B1.1 of the United States Sentencing Guidelines ("USSG"), and it rejected Johnson's objection "based on the disparity between crack cocaine and other drugs." (2006 Sentencing Tr., R. 156, PageID # 290, 299.)

B. Procedural History

Johnson filed his first appeal in December of 2006. He challenged his convictions and the court's 360 month sentence. Johnson , 308 F. Appx. at 969–970. We affirmed Johnson's convictions, but we vacated his sentence and remanded to the district court for resentencing for two reasons. Id . First, as to Johnson's career offender status, we concluded that "the district court's determination in this case that defendant's reckless endangerment conviction constituted a ‘crime of violence’ should be revisited in light of the recent pronouncements in Begay ," id. at 976, which held that crimes of violence required "purposeful, violent, and aggressive conduct," Begay v. United States , 553 U.S. 137, 145, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Second, we determined that "it was procedurally unreasonable for the district judge to sentence defendant under the erroneous belief that he was without authority to consider the 100:1 disparity in treatment of offenses involving crack and powder cocaine." Johnson , 308 F. Appx at 977.

Accordingly, the district court resentenced Johnson in May of 2009. It determined that, pursuant to Begay , Johnson did not qualify for the career offender guideline enhancement. Thus, the court reasoned that the applicable guidelines range was 200 to 235 months. It nevertheless resentenced Johnson to serve 300 months in prison––65 months longer than the upper end of the corrected guidelines range. The court also imposed a term of five years of supervised release. In doing so, the court relied on Johnson's "long history of criminal activity, the common presence of guns, the frequency and escalating nature of his crimes, and his age" to determine that an above guidelines sentence was required to protect the public. (Id. at PageID # 382–83.) The court specifically noted that "[w]hile Defendant appears to be doing well in prison, this is not relevant to the determination of his sentence and whether he has the ability to live peacefully in society." (Id. at PageID # 383.) The court underscored that its sentence would "keep Defendant confined until he is in his 50s ... during the most active years of Defendant's life," at which point his threat to the public "should be substantially diminished and is one society can risk." (Id. at PageID # 384–85.)

Johnson again appealed. We affirmed. In doing so, we deferred to the district judge's findings regarding the "need to protect the public from the defendant given the defendant's criminal history." (Id. at 3.) We determined that the district court's consideration of the § 3553(a) factors rendered Johnson's sentence substantively reasonable.

Several weeks after this Court affirmed Johnson's new, 300 month sentence, the Supreme Court decided Pepper v. United States , 562 U.S. 476, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011), which held that when a sentence is set aside on appeal, post-sentencing rehabilitation "may be highly relevant to several of the § 3553(a) factors that Congress has expressly instructed district courts to consider at sentencing." 562 U.S. at 491, 131 S.Ct. 1229. Accordingly, Johnson petitioned the Court for rehearing. We granted a three judge panel rehearing. In his corresponding pro se brief, Johnson urged this Court to take account of the fact that the district court "refused to consider post-sentencing rehabilitation." (Appellant's Br., Case No. 09-5658, ECF 101 at 3.) Johnson made other arguments as well, including the claim that his sentence was unlawful pursuant to the Fair Sentencing Act, which Congress passed after the district court's resentencing hearing.

We again affirmed. We concluded that "Johnson's claim that the district court erred by failing to consider his post-sentencing rehabilitation efforts does not render his sentence substantively unreasonable." (Order, Case No. 09-5856, ECF 135 at 4. (quoting United States v. Lapsins , 570 F.3d 758, 773 (6th Cir. 2009) ).) We also made clear that, at the time that the district court filed its 2012 opinion, "Johnson's claim that his sentence violates the Fair Sentencing Act lack[ed] merit because Johnson was both sentenced and resentenced prior to the effective date of the Act." (Id. at 3 (citing United States v. Carradine , 621 F.3d 575, 580 (6th Cir. 2010).)

But Johnson's efforts to reduce his sentence did not end there. In November and December of 2014, he filed two pro se motions for a sentence reduction pursuant to two 2014 amendments to the sentencing guidelines, which stemmed from the directives of the Fair Sentencing Act. USSG App. C, amend. 782 (2014); USSG App. C. amend 750 (2010); see also Pub. L. No. 111-220, §§ 2, 3, 8, 124 Stat. 2372, 2374 (2010). The government acknowledged that Johnson qualified for a reduction under Amendment 782; however, it argued that such a reduction was not warranted based on the § 3553(a) factors. Johnson filed two supplemental motions in which he added arguments under Amendments 780 and 788, emphasized his rehabilitative successes, and explained the nature of various infractions he incurred during his time in prison. He also attached letters of support.

The district court denied Johnson's motion. It recognized that Johnson was eligible for a reduction; however, it determined that "[t]he § 3553(a) factors––specifically, the need to protect the public from Defendant's future crimes––counsel against reducing Defendant's sentence." (Order Denying Mot. Reduce Sentence, R. 221, PageID # 806.) Johnson appealed again, and we affirmed once more. We found that "[a]lthough the district court could have found Johnson's rehabilitation argument persuasive, it did not deny Johnson's motion under an erroneous legal standard, and...

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