14-1063-cr

U nited States v. Johnson



## In the 1 

# United States Court of Appeals 2



## For the Second Circuit 3

4

5

August Term, 2014 6

No. 14

‐ 1063

‐ cr 7

8

U NITED S TATES OF A MERICA

, 9

Appellee

, 10

11

v. 12

13

J OHN J OHNSON

, AKA D UKE

, AKA D UKE H ARDCORE

, AKA J OHNNIE 14

J OHNSON

, 15

Defendant

‐ Appellant

. 16

17

18

Appeal from the United States District Court 19

for the District of Connecticut. 20

No. 3:05

‐ cr

‐ 179

‐ 1

― Janet Bond Arterton, Judge

. 21

22

23

A RGUED : M ARCH 17, 2015 24

D ECIDED : M AY 20, 2015 25

26

27

Before: S TRAUB

, S ACK

, and D RONEY

, Circuit Judges

. 28

29

302 Appeal from a judgment of the United States District Court 1

for the District of Connecticut (Arterton, J. ), imposing a thirty

‐ six

‐ 2

month term of incarceration after Defendant violated a condition of 3

his supervised release. Defendant argues that the district court 4

erred in determining the maximum term of incarceration for his 5

supervised release violation by reference to the felony classification 6

of his underlying offense at the time of its commission. He argues 7

that, because his offense conduct would have been classified 8

differently after the enactment of the Fair Sentencing Act, the district 9

court should have determined the maximum term of incarceration 10

by reference to the classification at the time of his supervised release 11

revocation proceedings. We AFFIRM

. 12

13

14

C HARLES F. W ILLSON

, Nevins Law 15

Group LLC, East Hartford, CT, for 16

Defendant

‐ Appellant. 17

18

A VI M. P ERRY

, Assistant United 19

States Attorney (Sandra S. Glover, 20

Assistant United States Attorney, of 21

counsel ; David E. Novick, Assistant 22

United States Attorney, on the brief ), 23

for Deirdre M. Daly, United States 24

Attorney for the District of 25

Connecticut, New Haven, CT, for 26

Appellee

. 27

28

293 D RONEY

, Circuit Judge : 1

Defendant

‐ Appellant John Johnson appeals from a judgment 2

of the United States District Court for the District of Connecticut 3

(Arterton, J. ), imposing a thirty

‐ six

‐ month term of incarceration after 4

Johnson violated a condition of his supervised release. On appeal, 5

Johnson argues that the district court erred in determining the 6

maximum term of incarceration by reference to the classification of 7

his original offense at the time of its commission. Johnson argues 8

that, because the Fair Sentencing Act of 2010, Pub. L. No. 111

‐ 220, 9

124 Stat. 2372 (“FSA”), had since amended the statute under which 10

he had been convicted, the district court should have determined the 11

maximum term of incarceration by reference to the post

‐ FSA 12

classification of his offense conduct. 1 13

Johnson’s challenge is all but foreclosed by our recent decision 14

in United States v. Ortiz

, 779 F.3d 176 (2d Cir. 2015) (per curiam), in 15

1 The effective date of the FSA was August 3, 2010.4 which we held that the penalties applicable when a defendant 1

violates the conditions of supervised release are “determined by 2

reference to the law in effect at the time of the defendant’s 3

underlying offense.” Id. at 177

‐ 78. In light of Ortiz

, the sole issue left 4

for us to resolve is whether the Supreme Court’s decision in Dorsey 5

v. United States

, 132 S. Ct. 2321 (2012), compels a different outcome 6

when the underlying sentence was imposed pre

‐ FSA but revocation 7

proceedings are held subsequent to the FSA’s effective date. We 8

hold that it does not. 9

Therefore, for the reasons set forth below, we AFFIRM the 10

judgment of the district court. 11

BACKGROUND 12

In 2006, Johnson pled guilty to a single

‐ count indictment 13

charging him with possession with intent to distribute five or more 14

grams of a mixture or substance containing cocaine base, in violation 15

of 21 U.S.C. § 841(a)(1) and (b)(1)(B). The offense carried a forty

‐ year 165 maximum term of imprisonment at the time and was thus a Class B 1

felony. See 18 U.S.C. § 3559(a)(2). The district court sentenced 2

Johnson to 156 months’ imprisonment and four years of supervised 3

release. On appeal, we vacated and remanded for resentencing in 4

light of the Supreme Court’s intervening decisions in Kimbrough v. 5

United States

, 552 U.S. 85 (2007), and Gall v. United States

, 552 U.S. 38 6

(2007). See United States v. Johnson

, 259 F. App’x 360 (2d Cir. 2008) 7

(summary order). On remand, the district court sentenced Johnson 8

on September 4, 2008, to sixty

‐ one months’ imprisonment and five 9

years of supervised release. 2 His supervised release term began in 10

August 2009. 11

In February 2014, while still on supervised release, Johnson 12

was convicted of first

‐ degree assault in Connecticut state court and 13

received an eighteen

‐ year sentence. See Conn. Gen. Stat. § 53a

‐ 59. 14

The district court determined that the state assault conviction 15

2 The five

‐ year term of supervised release is the statutory maximum for a

Class B felony. See 18 U.S.C. § 3583(b)(1).6 violated the condition of Johnson’s supervised release that he “shall 1

not commit another federal, state or local offense.” Judgment in a 2

Criminal Case After Remand at 3, United States v. Johnson

, No. 3:05

‐ 3

cr

‐ 179 (D. Conn. Sept. 9, 2008), ECF No. 79. The district court then 4

revoked Johnson’s supervised release and sentenced him to the 5

three

‐ year statutory maximum term of imprisonment applicable in 6

revocation proceedings when the underlying offense is a Class B 7

felony. See 18 U.S.C. § 3583(e)(3). 3 The district court entered 8

judgment on April 7, 2014. This appeal followed. 9

DISCUSSION 10

I. Standard of Review 11

“The standard of review on the appeal of a sentence for 12

violation of supervised release is

. . . the same standard as for 13

sentencing generally: whether the sentence imposed is reasonable.” 14

United States v. McNeil

, 415 F.3d 273, 277 (2d Cir. 2005). In making 15

3 The sentence was to be served half concurrent with, and half consecutive

to, the state court sentence.7 this determination, issues of law are reviewed de novo

. See United 1

States v. Selioutsky

, 409 F.3d 114, 119 (2d Cir. 2005). 2

II. Statutory Maximum Penalties and the FSA 3

Under 18 U.S.C. § 3559(a), an offense that is not otherwise 4

assigned a specific letter classification by statute is classified as a 5

Class B felony if it carries a maximum prison term of twenty

‐ five or 6

more years, and as a Class C felony if the maximum term is ten 7

years or more (but fewer than twenty

‐ five). 18 U.S.C. § 3559(a)(2)

‐ 8

(3). 4 Among the consequences of an offense’s grade classification is 9

the maximum term of imprisonment that may be imposed when a 10

defendant violates the conditions of his supervised release: three 11

years for Class B felonies, and two years for Class C felonies. See id. 12

§ 3583(e)(3). 13

4 If a statute defining a substantive offense designates a letter classification

for the offense, then 18 U.S.C. § 3581 prescribes the applicable maximum term of

imprisonment. See 18 U.S.C. § 3581(b); see also United States v. Gonzalez

, 922 F.2d

1044, 1050 (2d Cir. 1991) (explaining the distinction between §§ 3559 and 3581).

The statute under which Johnson was convicted, 21 U.S.C. § 841, does not assign

a classification. Thus, 18 U.S.C. § 3581(b) is inapplicable, and the offense

classification is determined pursuant to 18 U.S.C. § 3559(a).8 Prior to the enactment of the FSA, 21 U.S.C. § 841(b)(1)(B)(iii) 1

provided that a violation of § 841(a) carried a forty

‐ year statutory 2

maximum—making it a Class B felony—if it involved five or more 3

grams of a substance containing cocaine base. The FSA amended 4

§ 841 so that the same offense now requires at least twenty

‐ eight 5

grams to constitute a violation of that subsection and thus to trigger 6

the forty

‐ year maximum term of imprisonment. See FSA § 2(a)(2), 7

124 Stat. at 2372 (effecting the change from five to twenty

‐ eight 8

grams). An offense involving a lesser amount now carries a 9

maximum of twenty years’ imprisonment and thus constitutes a 10

Class C felony. See 21 U.S.C. § 841(b)(1)(C). There is no dispute that, 11

had Johnson committed his underlying drug offense following the 12

enactment of the FSA, he could only have been convicted of a Class 13

C felony based on the quantity of cocaine involved in the offense. 5 14

5 Johnson’s offense involved six grams of cocaine base.9 III. Application of the FSA to Revocation Proceedings 1

Johnson argues that, in light of the enactment of the FSA, the 2

district court should have regarded his underlying conviction as a 3

violation of 21 U.S.C. § 841(b)(1)(C) and applied the two

‐ year 4

statutory maximum that applies in revocation proceedings for a 5

Class C felony. 6

As noted above, we recently held that 18 U.S.C. § 3583(e)(3), 7

which sets forth the penalties for supervised release violations, 8

requires that the district court apply those penalties based on the 9

law as it existed at the time of the underlying offense and not at the 10

time of the supervised release violation. United States v. Ortiz

, 779 11

F.3d 176, 182 (2d Cir. 2015) (per curiam). 6 Ortiz

, however, dealt with 12

a development in the law affecting whether a defendant can be 13

6 18 U.S.C. § 3583(e)(3) provides that, if the district court finds that a

defendant violated the terms of his supervised release, the district court may

“revoke a term of supervised release, and require the defendant to serve in

prison all or part of the term of supervised release authorized by statute for the

offense that resulted in such term of supervised release,” up to the applicable

maximum term of incarceration.10 sentenced as an armed career criminal and thus did not consider 1

whether the FSA alters this general backward

‐ looking approach in 2

cases where the FSA has changed the drug quantities that trigger the 3

statutory penalties of 21 U.S.C. § 841(b). We now hold that it does 4

not. 5

In Dorsey v. United States

, 132 S. Ct. 2321 (2012), the Supreme 6

Court held that the FSA’s revised penalties apply to defendants who 7

committed an offense prior to the FSA’s effective date but who were 8

not sentenced until after the FSA took effect. Id. at 2326. Prior to 9

Dorsey

, our Court had held that the FSA does not apply retroactively 10

to defendants who were both convicted and sentenced prior to the 11

FSA’s enactment. See United States v. Diaz

, 627 F.3d 930, 931 (2d Cir. 12

2010) (per curiam). Dorsey did not disturb Diaz ’s holding. See 13

Dorsey

, 132 S. Ct. at 2335 (acknowledging that the Court’s holding 14

would create a disparity “between those pre

‐ Act offenders already 1511 sentenced and those not yet sentenced as of [the FSA’s effective 1

date]”). 2

Thus, Johnson’s appeal can succeed only if Dorsey ’s narrow 3

holding applies to him. The question is whether Johnson can 4

properly be deemed a pre

‐ FSA offender who was sentenced 5

subsequent to the FSA’s enactment, although here not for the 6

underlying offense but for a supervised release violation. He 7

cannot. Both the Supreme Court and our Court have made clear 8

that a supervised release revocation sanction is not an additional 9

punishment for the underlying conviction, but rather part of the 10

original sentence. See Johnson v. United States

, 529 U.S. 694, 700

‐ 01 11

(2000) (noting that double jeopardy is not implicated in revocation 12

proceedings, even if the defendant is separately prosecuted for the 13

conduct triggering the revocation, because “postrevocation 14

sanctions [are] part of the penalty for the initial offense”); United 15

States v. Pettus

, 303 F.3d 480, 487 (2d Cir. 2002) (noting that, although 1612 the initial period of incarceration and the supervised release term 1

are authorized by separate statutes, they constitute a “single 2

sentence for a single offense” such that “the revocation of 3

supervised release is not properly considered a new punishment”); 4

United States v. Amer

, 110 F.3d 873, 884 (2d Cir. 1997) (“[T]he entire 5

sentence, including the period of supervised release, is the 6

punishment for the original crime, and it is the original sentence that 7

is executed when the defendant is returned to prison after a 8

violation of the terms of his release.” (citation and internal quotation 9

marks omitted)). 10

Johnson’s underlying sentence consisted of a sixty

‐ one

‐ month 11

prison term and a choice between (1) complying with the conditions 12

of his supervised release for five years and (2) facing up to an 13

additional three years in prison for violating those conditions. As 14

Amer explains, the revocation proceedings merely execute the 15

previously imposed sentence. See Amer

, 110 F.3d at 884. Dorsey is 1613 therefore inapplicable; because the underlying sentence included a 1

Class B felony revocation penalty, Johnson continued to be subject to 2

that penalty until the completion of his entire sentence, including the 3

period of supervised release. 4

The Third Circuit addressed this same issue—and arrived at 5

the same result—in United States v. Turlington

, 696 F.3d 425 (3d Cir. 6

2012). There, a defendant sought to have his underlying Class A 7

felony treated as a Class B felony for purposes of his revocation 8

proceedings because of the drug quantity changes in the FSA. See id. 9

at 427. In rejecting the defendant’s argument, the court first 10

concluded that § 3583(e)(3) is backward

‐ looking. Id. at 427

‐ 28. It 11

then determined that Dorsey did not affect the outcome because the 12

defendant had been convicted and sentenced prior to the FSA’s 13

enactment. Id. at 428 (“The fact that [the defendant’s] supervised 14

release was revoked after passage of the FSA is of no moment.”). 15

Ortiz endorsed Turlington ’s approach to the § 3583(e)(3) question. 1614 See Ortiz

, 779 F.3d at 181. With our holding here, we endorse the 1

Third Circuit’s view of Dorsey

. 2

Johnson’s five

‐ year term of supervised release was imposed 3

based on his conviction for a Class B felony, as were the potential 4

penalties for violations of the conditions of supervised release. He 5

was still subject to those penalties, notwithstanding the changes 6

effected by the FSA. Nothing in the FSA or in Dorsey ’s interpretation 7

of it suggests that the penalties changed for purposes of addressing 8

non

‐ compliance with the conditions of supervised release. 9

Thus, the FSA had no effect on the supervised release portion 10

of Johnson’s pre

‐ FSA sentence. 11

CONCLUSION 12

For the foregoing reasons, we AFFIRM the judgment of the 13

district court. 14