United States v. Johnson
2011 U.S. App. LEXIS 16523
| 8th Cir. | 2011Background
- Johnson robbed a Little Rock bank on July 21, 2006, wearing disguise and brandishing a firearm, and fled with over $10,000 in cash.
- Arrest yielded cash, a smoke bomb, handcuffs, a wig, hats, sunglasses, and a firearm; Johnson later indicted on three counts.
- Johnson pled guilty to Count 1 (armed bank robbery) and Count 2 (brandishing a firearm) in exchange for dismissal of Count 3 (felon in possession).
- District court calculated base offense for Count 1 at 20; added 5 for bank robbery aggravators; -2 for acceptance of responsibility; total offense level 23.
- PSR showed prior convictions (1980 bank robbery; 1980 “by putting life in jeopardy”; 1985 robbery offenses) with three criminal-history points, placing him in Category II.
- Court found his criminal history under-represented due to § 4A1.2(e) remote sentence rules, upwardly departed to 188 months on Count 1, with 84 months consecutive on Count 2, totaling 272 months.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court erred in upwardly departing under § 4A1.3(a)(1). | Johnson contends his criminal history under-representation was improper. | Johnson argues the basis relied on § 4A1.2(e) remote-sentence rule and lack of proper justification for departure. | Upward departure affirmed; court properly found under-representation and explained rationale. |
| Whether the court properly considered remote-sentence evidence for § 4A1.3(a)(1). | Use of remote sentence as basis violated proper axis consideration. | Remote sentence evidence is permissible as evidence of similar or serious conduct. | Court could consider the remote sentence as evidence of recidivism; adequate basis for departure. |
| Whether the district court sufficiently explained the upward departure. | Argument that the explanation did not traverse the criminal-history axis in detail. | The explanation cited career-offender guidance and other factors; sufficient indicia against intermediary categories. | Explanation adequate; cited non-discrete factors and via reference to career-offender framework. |
| Whether the extent of the upward departure was reasonable. | Disagreement with 125-month upward departure relative to potential career-offender range. | Departure supported by recidivism and multiple factors; not disproportionate given circumstances. | 125-month upward departure reasonable; sentence within reason given career-offender context and other factors. |
Key Cases Cited
- United States v. Shillingstad, 632 F.3d 1031 (8th Cir. 2011) (abuse-of-discretion review for § 4A1.3 upward departures)
- United States v. Walking Eagle, 553 F.3d 654 (8th Cir. 2009) (need to compare across criminal-history categories for upward departures)
- United States v. Azure, 536 F.3d 922 (8th Cir. 2008) (intermediate categories may be considered when upward departure warranted)
- United States v. Haack, 403 F.3d 997 (8th Cir. 2005) (haack guiding framework for sentencing procedures and departures)
- United States v. Mireles, 617 F.3d 1009 (8th Cir. 2010) (Haack/Mireles approach to guideline versus § 3553(a) considerations)
- United States v. Flores, 336 F.3d 760 (8th Cir. 2003) (utilized career-offender framework as comparative benchmark)
- United States v. Adams, 401 F.3d 886 (8th Cir. 2005) (career-offender framework as indicator of reasonable sentence)
- United States v. Gonzalez, 573 F.3d 600 (8th Cir. 2009) (recidivism as justification for longer sentence)
- United States v. Myers, 589 F.3d 117 (4th Cir. 2009) (upward departure analysis in similar contexts (cited for comparison))
- United States v. Gardner, 905 F.2d 1432 (10th Cir. 1990) (upward departure context using career-offender benchmarks)