2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-26-2009

USA v. Shelton Johns

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4507

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"USA v. Shelton Johns" (2009). 2009 Decisions. Paper 1119.

http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1119
 Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals for the *

Ninth Circuit, sitting by designation.

NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 08-4507

 

 UNITED STATES OF AMERICA

v.

SHELTON JOHNS,

Appellant

 

On Appeal From the United States District Court

For the District of Delaware 

(D.C. Criminal. Action No. 1-06-cr-00047-001)

District Judge: Honorable. Gregory M. Sleet

 

Argued May 12, 2009

Before: AMBRO, ROTH, and ALARCÓN, Circuit Judges.

*

(Filed: June 26, 2009)

____________

Christopher J. Burke (ARGUED)

Office of the United States Attorney

1007 North Orange Street, Suite 700

Wilmington, DE 19899-0000

 Counsel for Appellee
2

Paul M. Perlstein (ARGUED)

Perlstein Law

P.O. Box 834

Doylestown, PA 18901-0000

 Counsel for Appellant

____________

OPINION OF THE COURT

____________

ALARCÓN, Circuit Judge:

Appellant Shelton Johns appeals from the sentence imposed by the District Court

following a remand by this Court because of the violation of Rule 35 of the Federal Rules

of Criminal Procedure. See United States v. Johns (“Johns I”), 282 Fed. Appx. 123, 125-

26 (3d Cir. 2008). We will affirm because we conclude that the original sentence imposed

by the District Court was reasonable under 18 U.S.C. § 3553(a).

I

On November 17, 2006, Johns pled guilty to a one-count felony indictment of being

a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). 

The Presentence Investigation Report calculated the Sentencing Guidelines range at 70 to

87 months. On March 23, 2007, the District Court imposed a below-the-guidelines

sentence of 60 months of incarceration and three years of supervised release. The District

Court did not sign or enter a written judgment. One week later, on March 30, 2007, it

issued a “Notice of Resentencing” sua sponte. 

At the resentencing hearing, the District Court informed counsel that “the Court is
3

not going to entertain discussion from either the government or defense.” The Court then

stated:

I have reconvened the sentencing hearing in this case, because,

after pronouncing sentence, it occurred to me that I had

pronounced my sentence without giving effect to the sentiments

expressed by Mr. Johns, Mr. Perlstein [defense counsel], and Ms.

Woody, that is Mr. Johns’ mother, during the [March 23, 2007]

sentencing hearing. In other words, I had made a mistake in

imposing a sentence of 60 months upon Mr. Johns. Upon

reflecting further on the issue, I have determined that the

appropriate sentence for Mr. Johns is 36 months, rather than the

60 months I imposed during the sentencing hearing.

I believe that a sentence of 36 months more appropriately

comports with the underlying goals of sentencing, which include

punishment, deterrence, and rehabilitation. Moreover, when

applying the 3553(a) factors to Mr. Johns, specifically those

factors that direct the Court to consider (1) the nature and

circumstances of the offense that Mr. Johns committed in the

present case, and (2) the history and characteristics of Mr. Johns,

the Court concludes that a sentence of 36 months adequately

achieves those goals of sentencing while taking into account

those factors I have just described earlier.

(Emphases added.) 

II

The Government filed a notice of appeal from the 36-month sentence set forth in

the District Court’s judgment entered on April 20, 2007. Johns filed a notice of crossappeal. On June 17, 2008, this Court vacated the sentence. It held that “[b]ecause the

district court did not resentence Johns on or before April 3, 2007, [it] lacked jurisdiction to

sentence Johns to 36 months’ imprisonment” in light of Federal Rule of Criminal
4

Procedure 35. Johns I, 282 Fed. Appx. at 125-26. The District Court was directed to

reimpose the initial 60-month sentence. Following remand, the District Court imposed the

original 60-month sentence. Johns timely appealed. 

III

Johns’ sole argument on appeal is that the 60-month sentence is unreasonable

because the District Court stated that it had made a mistake in imposing it. We disagree.

Prior to imposing the original 60-month sentence at the first sentencing hearing, the

District Court stated to Johns: 

I have considered all of the facts and circumstances of your life,

insofar as they have been reported to me by others who have

written on your behalf, and will consider the statements of both

your counsel and you and others as well, that were presented in

the presentence report and raised in your sentencing

memorandum, motion for downward departure, character letters,

and statements I am about to hear, all these factors that you point

out are relevant under [18 U.S.C. §] 3553(a) and will guide me

. . . in determining the proper sentence to impose. 

After imposing the original 60-month sentence, the District Court stated:

I was encouraged, as I listened to your words and witnessed your

delivery, that there may be a genuine recognition at this time of your

past misdeeds . . . .

[T]he Court is encouraged . . . by the family support that you have

received, both in person and in the form of letters . . . . I have, again,

seen some evidence of this in your statements today . . . . 

The District Court’s explanation that it made a “mistake” in its sentencing decision

indicates to us that it had a change of heart regarding the original 60-month sentence. 
 The above Advisory Committee Notes referred to Rule 35(c), which is now located at 1

subdivision (a). See id. (Advisory Committee Notes, 2002 Amendments).

5

Rule 35(a) of the Federal Rules of Criminal Procedure provides that “[w]ithin 7 days after

sentencing, the court may correct a sentence that resulted from arithmetical, technical, or

other clear error.” Fed. R. Crim. P. 35(a). The Advisory Committee Notes caution,

however, that

[t]he authority to correct a sentence under this subdivision is

intended to be very narrow and to extend only to those cases in

which an obvious error or mistake has occurred in the sentence,

that is, errors which would almost certainly result in a remand of

the case to the trial court for further action . . . . The subdivision

is not intended to afford the court the opportunity to reconsider

the application or interpretation of the sentencing guidelines or

for the court simply to change its mind about the appropriateness

of the sentence. 

Id. (Advisory Committee Notes, 1991 Amendments) (emphasis added).1

We agree with the decisions of the Second Circuit and other Circuits that Rule 35

prohibits second thoughts about sentencing decisions. See United States v. AbreuCabrera, 64 F.3d 67, 73 (2d Cir. 1995) (“The district court in the instant case changed its

mind regarding the severity of [the defendant’s] sentence. As a result of Congress’ desire

to provide a finality to sentencing, such second thoughts, no matter how well intentioned

are not the sort of error that [Rule 35(a)] was designed to remedy.”) (citation omitted); see

also United States v. Cook, 890 F.2d 672, 675 (4th Cir. 1989) (“The power of a district

court to amend a sentence does not extend to a situation where the district judge simply
6

changes his mind about the sentence.”); United States v. Sadler, 234 F.3d 368, 374 (8th

Cir. 2000) (“the district court’s attempt to resentence Sadler under [Rule 35(a)] illustrates

an impermissible ‘change of heart as to the appropriateness of the sentence’”) (quoting

Abreu-Cabrera, 64 F.3d at 72).

In any event, we cannot consider, under the procedural posture of this case, the

District Court’s comments at the resentencing. See United States v. Smalley, 517 F.3d

208, 212-13 (3d Cir. 2008). 

Furthermore, we conclude that the original sentence is reasonable under 18 U.S.C.

§ 3553(a). Following the imposition of the 60-month, below-the-guidelines sentence, the

District Court confirmed that it had considered the § 3553(a) factors and that given, among

other things, Johns’ extensive criminal history, the sentence was appropriate. We agree. 

At oral argument, Johns’ counsel did not argue otherwise, conceding that he has “never

argued that 60 months is not a reasonable sentence.” 

Because the 60-month sentence originally imposed in this matter was reasonable,

the judgment of the District Court will be AFFIRMED.