United States v. Devin Johnson
2014 U.S. App. LEXIS 16582
7th Cir.2014Background
- Devin Johnson, a felon, returned to his girlfriend’s parents’ home and pointed a loaded TEC-9 at the homeowner (Hunter); family members called police and a gun, magazine, and glove were found in the nearby alley; Johnson was later stopped in a red SUV and arrested.
- Indicted under 18 U.S.C. § 922(g) for being a felon in possession of a firearm; convicted by a jury.
- At sentencing the district court applied a four-level Guidelines enhancement under U.S.S.G. § 2K2.1(b)(6)(B), finding Johnson possessed the firearm on another’s property in connection with another felony (aggravated unlawful use of a weapon (AUUW)/aggravated assault).
- The court imposed 108 months’ imprisonment (below the Guidelines range with the enhancement but within the statutory maximum) and 3 years’ supervised release; the court orally recited specific conditions of supervised release.
- The written amended judgment, entered later, included additional “standard” and special conditions (including payment for psychiatric services, drug testing, and a ban on “mood altering substances”) that were not announced at the oral sentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Applicability of § 2K2.1(b)(6)(B) four‑level enhancement | Gov’t: Johnson possessed a firearm on another’s property in connection with AUUW/aggravated assault | Johnson: Gov’t failed to prove he was not an invitee and failed to prove assault/battery | Court affirmed: preponderance supports conclusion he returned without permission and placed Hunter in reasonable apprehension (aggravated assault) so enhancement applies |
| Invitee exception to AUUW | Gov’t: evidence shows Johnson left, was told to leave, and returned without permission | Johnson: no evidence he was prohibited from returning; thus may have been an invitee | Court: finds clear inference he lacked permission to return; invitee exception inapplicable |
| Whether victim’s conduct (not appearing fearful) defeats assault finding | Gov’t: reasonable-person apprehension suffices; actual subjective fear not required | Johnson: Hunter’s calm response shows no apprehension of battery | Court: objective standard met—pointing a loaded gun supports reasonable apprehension; assault established |
| Consistency between oral and written supervised-release conditions | Gov’t: written judgment reflects conditions to be imposed | Johnson: written judgment added conditions not orally pronounced, so they conflict | Court: oral pronouncement controls; additional written conditions vacated and remanded for reconsideration (but court may modify conditions later) |
Key Cases Cited
- United States v. Pabey, 664 F.3d 1084 (7th Cir.) (standard: de novo review of sufficiency for enhancement; district court fact findings reviewed for clear error)
- United States v. Siegel, 753 F.3d 705 (7th Cir.) (conditions banning “mood altering substances” are vague; defendant’s ability to pay for mandated treatment must be considered)
- United States v. Alburay, 415 F.3d 782 (7th Cir.) (when oral sentence is unambiguous, it controls over inconsistent written judgment)
- United States v. Bonanno, 146 F.3d 502 (7th Cir.) (distinguishes when a written judgment can clarify a vague oral pronouncement vs. when it conflicts)