United States v. Johns
2013 U.S. App. LEXIS 20590
| 7th Cir. | 2013Background
- Johns pleaded guilty to three counts of possessing a firearm as a felon; district court imposed 120 months concurrent on Counts 1–2 and 40 months consecutive on Count 3, total 160 months.
- PSR recommended base offense level 20 and four enhancements (three-firearms handling, stolen rifle, trafficking, and other felony offense) totaling level 29; range 97–121 months; Johns objected to trafficking and other-felony enhancements.
- Plea acknowledged the Count Two firearm was actually a 9mm rifle, not a .45 caliber rifle; plea remained guilty to all counts.
- Government presented additional background alleging Johns engaged in firearm trafficking and that the Cl planned to resell firearms; recorded conversations were cited to support these claims.
- District court applied both the trafficking enhancement and the other-felony-offense enhancement based on the same conduct (transfer of firearms to the Cl, knowing it would be resold); sentenced above the guideline range.
- Court explained upward variance based on deterrence, danger to the community, and Johns’s personal history; ultimately vacated and remanded due to error in applying the other-felony enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 2K2.1(b)(6)(B) was properly applied in light of Note 13(D). | Johns argued double counting prohibited by Note 13(D). | United States contended double counting permissible when supported by distinct felonies; argued transfer connected to other felonies. | Enhancement improperly applied; double counting prohibited; vacate and remand. |
| Whether the district court properly considered the PSR by verifying read/discussion under Rule 32(i)(1)(A). | Johns contends error in failing to verify PSR discussion with counsel. | Government concedes error but argues no prejudice shown. | Remand to verify whether Johns read the PSR and discussed it with counsel. |
| Whether the court relied on inaccurate facts (revolver characterization and number of children) in imposing sentence. | Johns asserts due process requires reliance on accurate information; disputed facts should be resolved on remand. | Government maintains misstatements were inconsequential or not relied upon. | Remand to address disputed facts if necessary. |
| Whether the 160-month sentence can be affirmed after correcting the guideline range. | Without the improper enhancement, guidelines would yield a lower range; departure justification should be reassessed. | District court provided deterrence-based rationale for upward departure. | Remand for resentencing within the correct range. |
Key Cases Cited
- United States v. Vizcarra, 668 F.3d 516 (7th Cir. 2012) (double counting permissible unless prohibited by text)
- United States v. Kimoto, 588 F.3d 464 (7th Cir. 2009) (district court fact-finding on connection with other felonies)
- Swanson v. United States, 692 F.3d 708 (7th Cir. 2012) (preservation of sentencing objections; forfeiture principles)
- United States v. Atkinson, 979 F.2d 1219 (7th Cir. 1992) (requirement to verify PSR read and discussed with counsel; remand if violated)
- United States v. Abbas, 560 F.3d 660 (7th Cir. 2009) (harms of harmless-error analysis in sentencing context)
- United States v. Tovar-Pina, 713 F.3d 1143 (7th Cir. 2013) (remand when guidelines range miscalculated)
- United States v. Miller, 601 F.3d 734 (7th Cir. 2010) (need for significant justification for major departures)
- United States v. Johnson, 685 F.3d 660 (7th Cir. 2012) (recidivism considerations; age-related deterrence discussion)