United States v. Johnson
2014 U.S. App. LEXIS 12497
10th Cir.2014Background
- Vanity Johnson pleaded guilty pursuant to a written plea agreement that included a broad waiver of appellate rights, including challenges to a guideline-range sentence.
- She admitted participation in a scheme with codefendant/boyfriend Mario Diaz to steal checks and credit cards, and acknowledged acting "knowingly, voluntarily and willingly," while also alleging Diaz had physically and emotionally abused her.
- The government recommended probation and moved for a downward departure under 18 U.S.C. § 3553(e); the district court granted the motion but imposed 12 months and one day imprisonment.
- At sentencing the district court questioned how Johnson could receive probation when Diaz received 39 months; it commented on her criminal history and made remarks characterizing many domestic-violence incidents as mutual "arguments" and stating “I don’t hold those against you.”
- Johnson appealed despite her waiver, arguing enforcement of the waiver would be a miscarriage of justice because the district court relied on impermissible gender-biased assumptions at sentencing.
- The government moved to enforce the appeal waiver under United States v. Hahn; the Tenth Circuit reviewed whether the waiver applied, whether it was knowing and voluntary, and whether enforcing it would cause a miscarriage of justice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the appeal falls within the plea waiver and should be enforced | Waiver unenforceable because sentencing relied on impermissible gender bias (miscarriage of justice) | Waiver valid; court permissibly weighed facts and declined to give abuse great weight | Appeal waiver enforced; appeal dismissed |
| Standard and scope of review for an unpreserved claim of judicial gender bias | Johnson urged review despite not raising bias at sentencing | Government argued plain-error review applies and waiver should be enforced | Plain-error review applied; Johnson failed to show plain error |
| Whether the district court plainly erred by injecting gender bias into sentencing | Court’s comments blaming victims of domestic violence and referencing Johnson’s motherhood showed gender bias affecting sentence | Court’s remarks were contextual and it expressly said it did not hold domestic violence against her; sentencing based on other misconduct | No plain error demonstrated; speculative possibility insufficient |
| Whether remand is required to develop the record on bias | Johnson argued further factual development could show bias | Government argued record shows no bias affecting sentence and plain-error relief is inappropriate without record development | Court declined remand; will not invoke plain-error reversal to allow additional fact-finding |
Key Cases Cited
- United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (framework for enforcing appellate waivers)
- United States v. White, 584 F.3d 935 (10th Cir. 2009) (burden on defendant to show waiver causes miscarriage of justice)
- United States v. Charles, 576 F.3d 1060 (10th Cir. 2009) (plain-error review elements)
- United States v. Jacobson, 15 F.3d 19 (2d Cir. 1994) (discussion of review standard in similar context)
- United States v. Lewis, 594 F.3d 1270 (10th Cir. 2010) (plain-error review will not be used to permit fruitless remand to develop record)