NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 08a0751n.06

Filed: December 9, 2008

No. 07-3870

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

HARVEY JOHNSON,

Defendant-Appellant.

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ON APPEAL FROM THE

UNITED STATES DISTRICT

COURT FOR THE SOUTHERN

DISTRICT OF OHIO

O P I N I O N

BEFORE: MERRITT, MOORE, and COLE, Circuit Judges.

COLE, Circuit Judge. Defendant-Appellant Harvey Johnson appeals the thirty-six-month

sentence imposed by the district court following its revocation of his supervised release. Johnson

argues that the district court committed procedural error by inadequately explaining its upward

variance from the United States Sentencing Commission’s advisory Guidelines range. Johnson also

argues that the sentence imposed by the district court was substantively unreasonable because there

was insufficient record evidence demonstrating its consideration of the relevant 18 U.S.C. § 3553(a)

factors. We agree that Johnson’s sentence is procedurally unreasonable. However, because we have

insufficient information to provide meaningful review of substantive reasonableness, we do not

evaluate Johnson’s sentence for substantive reasonableness. For the reasons set forth below, we

VACATE Johnson’s sentence and REMAND this case to the district court for resentencing.

I. BACKGROUND
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On October 16, 1997, Johnson was convicted in the United States District Court for the

Eastern District of Pennsylvania of conspiracy, armed bank robbery, and using or carrying a firearm

during a crime of violence. He was sentenced to sixty months in prison and sixty months of

supervised release. In April 2003, Johnson’s supervision was transferred to the Southern District

of Ohio.

The United States Probation Office filed a July 2006 report alleging that Johnson had

violated the terms of his supervision. The report stated that Johnson had failed to submit his

required monthly reports for March 2006 through June 2006 and that an Ohio grand jury had

returned a three-count indictment against him for theft and forgery. The probation officer

recommended that no action be taken against Johnson until either the officer had completed an

investigation or the charges were resolved; the district court concurred with this recommendation.

In November 2006, the Probation Office petitioned the district court to “issue an Order to

Appear and Show Cause and to toll Johnson’s term of supervise[d] release.” (Petition for Warrant

of Oct. 31, 2006 1, Joint Appendix (“JA”) 9.) The probation officer recommended revoking

Johnson’s supervision. Johnson appeared and was released on an own-recognizance bond. The

court then scheduled Johnson’s revocation hearing for February 2007, but the hearing was later

rescheduled to occur in May 2007.

Before the district court could consider Johnson’s initial revocation, the Probation Office

filed an April 19, 2007 petition requesting that the court “issue a warrant” and revoke Johnson’s

supervision. This petition explained that Johnson had left the judicial district without permission

of the court or of a probation officer. The district court ordered the issuance of a warrant for
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Johnson’s arrest, and Johnson was arrested in Wildwood, Florida the following day. The court also

rescheduled Johnson’s revocation hearing for June 27, 2007.

Prior to the June revocation hearing, the Probation Office amended its petition for revocation

of supervision to allege four violations of Johnson’s supervised release. The first violation alleged

that Johnson had left the judicial district without permission of the court or a probation officer. The

remaining violations alleged that Johnson had committed three separate federal, state, or local

crimes. The second violation restated the theft and forgery charges from the November 2006

petition. The third violation alleged that Johnson had been in possession of a firearm when he was

arrested in Florida in April. The fourth violation concerned Johnson’s alleged murder of Keva

Gazaway. The probation officer also prepared a Supervised Release Violation Report (“SRVS”) and

an Amended SRVS, which recommended that the court revoke Johnson’s supervised release and

sentence him “for 36 months in all counts with the terms to be served concurrently with no

supervised release.” (Amended SRVS 1-7, JA 39-47.)

At the June 27, 2007 revocation hearing, the government explained that it was prepared to

proceed on the first supervised release violation—leaving the judicial district without

permission—but was not in a position to present proof as to the remaining three. Johnson informed

the court that he was admitting to the first violation, but that “[v]iolations 2, 3, and 4 relate[d] to

pending criminal matters in other jurisdictions, and [he], obviously, would not be able to make any

admissions concerning that activity.” (Hr’g Tr. of June 27, 2007 (“June Tr.”) 2, JA 24.)

The entirety of the record constituting the district court’s acceptance of Johnson’s plea and

the imposition of his sentence follows:
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The Court: All right. You are pleading guilty to the charge that you violated your

condition of supervised release by leaving the judicial district. Is that correct?

The Defendant: Yes, sir.

The Court: All right. The Court finds that the supervised release is hereby revoked,

and defendant is sentenced to prison for three years.

[Johnson’s attorney]: Your Honor, can we address that issue, please?

The Court: Please?

[Johnson’s attorney]: Can we address that issue, please?

The Court: Address what?

[Johnson’s attorney]: Can I address the Court before you pronounce sentence?

The Court: Go ahead.

[Johnson’s attorney]: Your Honor, this is a Grade C violation that we’re admitting.

The guideline range is five to eleven months. The only information pending before

this Court that he has admitted to is the fact that he left the judicial jurisdiction.

I understand that the Court has the ability and the right because the guidelines

are advisory and have always been advisory as they relate to supervised release

violations. But this is a Grade C violation, a technical violation, with a range of five

to eleven months, and I think the Court should consider that.

We did not plead guilty to the A or B violations, which are set forth in

Violations 2, 3, and 4.

The Court: I understand what you’re saying. I understand the circumstances

surrounding what he’s pleading guilty to in Violation number one. He was asked not

to leave the jurisdiction before he left and he knew he was not supposed to, but he

went anyhow. So, I’m taking that into consideration in the sentence, and I’m

imposing what I think is appropriate in this case.

Does the Government have anything it wants to add?

[The government]: It would not object to the Court’s recommended sentence, your
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Honor.

The Court: All right. Your objection’s noted, [to Johnson’s attorney].

[Johnson’s attorney]: (Nods head up and down.)

The Court: Anything else on this matter?

[The government]: Not on behalf of the government, your Honor.

[Johnson’s attorney]: No, your Honor.

(June Tr. 3-5, JA 25-27.) The Court then entered a written judgment sentencing Johnson to three

years in prison. Johnson’s timely appeal followed.

II. ANALYSIS

This Court reviews a district court’s sentence on revocation of supervised release under a

deferential abuse of discretion standard for reasonableness. United States v. Bolds, 511 F.3d 568,

575 (6th Cir. 2007). The reasonableness inquiry contains both procedural and substantive

components. Gall v. United States, 128 S. Ct. 586, 597 (2007). 

A. Procedural Reasonableness

A sentence on revocation may be procedurally unreasonable “if the district judge fails to

consider the applicable Guidelines range or neglects to consider the other factors listed in 18 U.S.C.

§ 3553(a), and instead simply selects what the judge deems an appropriate sentence without such

required consideration.” United States v. Collington, 461 F.3d 805, 808 (6th Cir. 2006) (internal

citations omitted) (citing United States v. Webb, 403 F.3d 373, 383 (6th Cir. 2005)). The § 3553(a)

factors relevant to a revocation of supervised release include “the nature of the offense; the need to
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deter criminal conduct, to protect the public, and to provide Defendant with appropriate treatment;

any guideline range for sentencing; guideline policy statements; and avoidance of unwarranted

disparities.” United States v. Johnson, 403 F.3d 813, 815 (6th Cir. 2005) (citations omitted).

Johnson argues that the district court’s actions were procedurally unreasonable because “[t]he

court did not make any findings regarding the proper guideline sentencing range and gave no

explanation for its sentence.” (Final Br. of Defendant-Appellant Johnson 9.) The Supreme Court

recently provided instructions for our review of such issues. See Gall, 128 S. Ct. at 597-98. This

Court must “ensure that the district court committed no significant procedural error, such as failing

to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory,

failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or

failing to adequately explain the chosen sentence--including an explanation for any deviation from

the Guidelines range.” United States v. Jordan, 544 F.3d 656, 2008 U.S. App. LEXIS 21572, at *44

(6th Cir. Oct. 15, 2008) (citing Gall, 128 S. Ct. at 597); see also United States v. Grossman, 513

F.3d 592, 595 (6th Cir. 2008) (citation omitted). And while it is true that the district court has no

obligation to engage in a “ritualistic incantation of the relevant § 3553(a) factors,” United States v.

Trejo-Martinez, 481 F.3d 409, 413 (6th Cir. 2007), the reviewing court must provide enough detail

in imposing a particular sentence “to permit reasonable appellate review.” United States v.

Richardson, 437 F.3d 550, 554 (6th Cir. 2006) (citation omitted); see also Grossman, 513 F.3d at

595.

1. The district court’s consideration of the proper Sentencing-Guidelines range

First, we disagree with Johnson’s argument that the district court did not make any findings
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regarding the proper sentence, and find that the court properly allowed Johnson an opportunity to

address the sentence. (See June Tr. 3-4, JA 25-26.) Before Johnson objected, the district court’s

findings on the revocation of Johnson’s supervised release included only that, “[t]he Court finds that

the supervised release is hereby revoked, and defendant is sentenced to prison for three years.” (Id.

3, JA 25.) This limited analysis alone would have been procedurally unreasonable. However,

Johnson’s objections clarified that the violation was a “Grade C violation,” that the relevant

Guidelines range was “five to eleven months,” and that Johnson was not pleading guilty to any other

violations. (Id. 4, JA 26.) The court then stated that it understood Johnson’s arguments and the

circumstances surrounding Johnson’s guilty plea, and imposed the sentence it thought was

“appropriate in this case.” (Id.)

While the district court’sfinding regarding Johnson’s Sentencing-Guidelines range was less

than ideal, we are not inclined to find it procedurally unreasonable. In United States v. Bostic, 371

F.3d 865, 872-73 (6th Cir. 2004), this Court announced a new procedural rule requiring district

courts to entertain, in fact to request, any objections after pronouncing the defendant’s sentence and

before adjourning the sentencing hearing. Id. at 872. There, we stated, “[p]roviding a final

opportunity for objections after the pronouncement of a sentence, ‘will serve the dual purposes of

permitting the district court to correct on the spot any error it may have made and of guiding

appellate review.’” Id. at 873 (citation omitted). As this Court anticipated in Bostic, Johnson’s

timely objection provided the district court with an opportunity to correct its error. Specifically,

Johnson’s objection clarified the applicable Guidelines range of five-to-eleven months. And the

district court indicated its agreement with that range. Thus, though the district court’s initial
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pronouncement was procedurally unreasonable, where Johnson’s Bostic-objection set out the proper

Guidelines range, the district court demonstrated its understanding of Johnson’s objection, and

Johnson does not argue that the court applied the wrong Guidelines range, we do not find the district

court acted procedurally unreasonably in determining Johnson’s Guidelines range.

2. The district court’s explanation of its variance from the Sentencing Guidelines

Johnson also argues that the district court failed to explain its sentence, by failing to articulate

how the § 3553(a) factors applied to his out-of-Guidelines sentence or to explain how it arrived at

its determination. For the reasons set forth below, we agree.

Undoubtedly, the recommendation and imposition of an appropriate sentence is the province

of the district court. Our standard of review for sentencing reflects the deference allotted to such

decisions. However, in order to allow meaningful review, the district court must provide appellate

courts with sufficient information about the justification for the imposed sentence. United States v.

Kirby, 418 F.3d 621, 626 (6th Cir. 2005). 

In this case, we have nothing to review—no discussion of § 3553(a) nor any other

explanation. As stated above, the court’s first determination provided, “[t]he Court finds that the

supervised release is hereby revoked, and defendant is sentenced to prison for three years.” (June

Tr. 3, JA 25.) This statement is procedurally unreasonable and Johnson properly objected to the

sentence on those grounds. Yet, even after Johnson’s objection, the court failed to correct its error.

Johnson explained that he had only pleaded guilty to a Grade C Violation with a five-to-elevenmonth Guidelines range, but the court replied as follows:

I understand what you’re saying. I understand the circumstances surrounding what
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he’s pleading guilty to in Violation number one. He was asked not to leave the

jurisdiction before he left and he knew he was not supposed to, but he went anyhow.

So, I’m taking that into consideration in the sentence, and I’m imposing what I think

is appropriate in this case.

(Id. 4, JA 26.) In sum, the district court based its sentencing decision solely on its own unspoken

determination of what it deemed to be appropriate in this case. But that is not enough. We are

unable to review whether the district court abused its discretion where the colloquy leaves us nothing

to review. Underthese circumstances, our precedent requires a determination that the district court’s

sentence is procedurally unreasonable.

B. Substantive reasonableness

It is unclear whether the sentence imposed by the district court in this case is substantively

reasonable. This Court concludes that there is simply not enough information in the record to allow

for a meaningful review. The district court failed to explain the relevant § 3553(a) factors, its

reasoning, or its justification for making an upward variance from the Sentencing Guidelines. Given

the lack of information regarding substantive reasonableness and our finding that Johnson’s sentence

was procedurally unreasonable, we must vacate Johnson’s sentence and remand his case to the

district court for resentencing.

III. CONCLUSION

For the reasons set forth above, we VACATE Johnson’s sentence and REMAND the case

to the district court for a new sentencing hearing.