In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-2156

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JESS A. JOHNSON,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 1:06CR00007-001—John Daniel Tinder, Judge.

____________

ARGUED NOVEMBER 14, 2006—DECIDED DECEMBER 13, 2006

____________

Before EASTERBROOK, Chief Judge, and POSNER and

COFFEY, Circuit Judges.

POSNER, Circuit Judge. Under the federal sentencing

regime created by the Booker decision, the sentencing

judge is first to compute and consider the guidelines

range for the defendant’s offense and then to select and

impose a sentence—which can be inside or outside that

range (provided of course that it is within the statutory

sentencing range)—guided by the sentencing factors in 18

U.S.C. § 3553(a). If the judge follows this procedure and

commits no legal or clear factual errors and discusses

the applicability of any substantial statutory sentencing
2 No. 06-2156

factors drawn to his attention by either party, we must

uphold his sentence unless it is unreasonable. Since the

statutory sentencing factors are multiple and vague, it

will be the rare case in which it is possible to say that the

judge who has complied with the procedural requirements set forth above imposed an unreasonable sentence. E.g., United States v. Bullion, 466 F.3d 574, 575 (7th

Cir. 2006); United States v. Jordan, 435 F.3d 693, 696 (7th

Cir. 2006). “His choice of sentence, whether inside or

outside the guideline range, is discretionary and subject

therefore to only light review.” United States v. Demaree,

459 F.3d 791, 795 (7th Cir. 2006).

Dextromethorphan hydrobromide (DXM) is a cough

suppressant found in such over-the-counter drugs as

Robitussin. It is also consumed “recreationally” as an

intoxicant in doses that are much greater than when used

in cough medicines and are potentially fatal. It is not a

controlled substance under Title 21 of the Criminal Code

but it is regulated by the Food and Drug Administration, which requires that it be accurately labeled according to its intended use.

The defendant, Jess Johnson, created with another person a company to import DXM from India. Rather than

having any legitimate commercial purpose in forming

the company, they did it because they wanted to consume the drug themselves as an intoxicant and sell what

they didn’t consume to other “recreational” users in order

to finance their own use and perhaps make some money;

in fact they made a total of $30,000 on their sales of DXM

during the short period in which they were in operation.

The company received three shipments of DXM from

India, totaling 35 kilograms. The third shipment was

intercepted by the FDA, which directed the company to
No. 06-2156 3

state its intended use. Johnson told the agency that the

DXM he was importing “was for research and development only” and “in no way is this product going to be

used for human consumption.” In fact, though, Johnson’s

partner estimated that 95 percent of the company’s customers were buying its product to get high.

During the four months in which the company was in

business before being shut down by the FDA, it made

hundreds of sales, amounting to 15 kilograms of DXM

(roughly 15,000 doses). Five of its customers, all of them

teenage boys, died from consuming DXM that they had

bought from the company’s website. Although the packages in which the chemical was shipped to purchasers

were labeled “not for human consumption,” Johnson

admitted knowing that they bought DXM in order to

get high; for they had such e-mail addresses as

“poisonthebrain@digiverse.net.” Two of the five deaths

occurred after Johnson learned about two of the first three

deaths. Yet after learning about them the only change he

made in the company’s modus operandi was to alter the

website so that to place an order a customer had to acknowledge having read the terms and conditions of

purchase, among which was that the purchaser must be

at least 18 years old and be purchasing DXM solely for

purposes of research. No means of verifying compliance

with the conditions was established and no warning was

sent to previous purchasers.

Johnson pleaded guilty to three counts of introducing

a misbranded drug into interstate commerce, in violation of 21 U.S.C. § 331(a), the misbranding consisting

in his representing that the drugs were intended for research rather than for human consumption. Each count

was for one of the misbranded shipments that his com-
4 No. 06-2156

pany made that resulted in a death. The judge sentenced

Johnson to consecutive prison terms totaling 77 months.

(Johnson’s partner received an identical sentence.) That

was 61 months above the top of the applicable guidelines

range though below the statutory maximum of 108 months

(three years on each count). The judge based the six and

a half year sentence on the lethal consequences of Johnson’s acts, plus the recklessness demonstrated by his

continuing to sell the misbranded product after learning

that two of his customers had overdosed on it and died.

The deaths of the first three teenagers might be ascribed to

negligence rather than to recklessness; and the other two

teenagers who died had bought the DXM from Johnson’s

company before he learned of any of the deaths. But of

course after learning about two of the deaths, he knew—not

merely should have known—that there was a substantial

risk that more of his customers would die, and yet he

continued to sell DXM for recreational use and failed to

warn existing customers, including the two teenagers

who died after he learned of the first two deaths. That

conduct on his part—the continued selling and the failure to warn—was reckless. United States v. Howard, 454

F.3d 700, 704 (7th Cir. 2006); United States v. Ladish Malting

Co., 135 F.3d 484, 488 (7th Cir. 1998); United States v.

Ihegworo, 929 F.2d 26, 29 (5th Cir. 1992).

Misbranding that results in multiple deaths as a consequence of the negligence of the misbrander, coupled with

his recklessness in continuing to sell the product after

learning that deaths had resulted, with no effort to warn

existing customers, justified a sentence much longer than

16 months. The arguments that Johnson makes in favor of

a sentence that would mock the gravity of his conduct are

unavailing. Some of them are also in poor taste, such as
No. 06-2156 5

that the teenagers who died “were certainly responsible

in part for the ultimate harm.” That is true in a literal

sense, but ignores the fact that the drugs were misbranded because there were no instructions for use;

Johnson’s customers overdosed because the website did

not indicate what a safe dosage would be. Other arguments that he makes are beside the point, such as that

the fact that misbranding carries only a three-year maximum sentence shows that Congress doesn’t think it as

serious as many other federal crimes. True (though not

entirely, since with each shipment a separate count,

consecutive sentencing can produce a very long sentence). That is why Johnson’s sentence is much lower than

it would be had the deaths resulted from his sale of a

controlled substance; 21 U.S.C. § 841(b)(1)(B)(iii), for

example, imposes a mandatory minimum sentence of

20 years on someone who sells more than five grams of

crack, if death or serious injury results to a consumer of

the crack.

The defendant’s other arguments joust futilely with

the relative weight that the district judge placed on the

various sentencing factors in section 3553(a). Such quarrels do not establish the unreasonableness of a sentence.

The statute does not weight the factors. That is left to the

sentencing judge, within the bounds of reason, which are

wide. United States v. Bullion, supra, 466 F.3d at 577. Johnson’s crimes would have justified on grounds of both

retribution and deterrence an even longer sentence than

he received. The statutory maximum of 108 months

(9 years) would have been reasonable. The judge displayed lenity, not the reverse as Johnson argues.

AFFIRMED.
6 No. 06-2156

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—12-13-06