United States v. Robert Johnson, Jr., 715 F.3d 179

Background

In 2009 Johnson pled guilty to possessing and transmitting child pornography and appeals a vindictiveness challenge to remand sentencing.
Earlier, in 2001, Johnson interacted online with someone he believed to be a 14-year-old; that person was an FBI agent; he transmitted child pornography and planned a meeting, leading to arrest and a 63-month sentence plus two years' supervised release.
After completing prior term, Johnson again contacted someone he believed to be a minor (13); he sent numerous child-porn images; a search of his home yielded about 500 images.
Johnson was indicted on three counts: transporting child pornography in interstate commerce by computer, using a facility to transfer obscene material to a minor, and possession of child pornography; he pled guilty to all counts.
PSR recommended a total offense level of 41 and a guidelines sentence of 360 months to life; the district court sentenced to 120, 240, and 320 months concurrently, below the PSR range.
On remand, the district court applied a five-level enhancement (USSG § 2G2.2(b)(5)) for a pattern of conduct and imposed 360 months; Johnson challenged as vindictive and substantively unreasonable.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether remand sentencing based on vindictiveness is proper.	Johnson argues remand produced a punitive increase unsupported by conduct.	United States contends the increase was justified by the remand directive and Johnson's conduct.	No plain error; district court properly applied the enhancement and imposed 360 months.
Whether there is a presumption of vindictiveness on remand when sentence increases.	Johnson contends presumption should apply and require a neutral justification.	Government argues the presumption can be overcome by legitimate reasons aligned with the remand order.	Presumption overcome; no plain error in remand sentence.
What standard of review applies to Johnson’s vindictiveness claim on appeal.	Johnson seeks de novo review on the vindictiveness issue.	Government urges plain error review due to lack of preservation at sentencing.	Plain error review applies; but the claim fails under the standard analysis.
Whether the 2G2.2(b)(5) enhancement was correctly applied on remand.	Johnson argued no pattern of activity to justify the five-level increase.	Court properly found two convictions constituted a pattern triggering § 2G2.2(b)(5).	Enhanced applied; sentence upheld.
Whether the resulting sentence was substantively reasonable within the Guidelines.	Johnson contends the higher sentence on remand is unreasonable and excessive.	Government argues presumption of reasonableness within the Guidelines applies and is unrebutted.	Presumption of reasonableness preserved and not rebutted; sentence affirmed.

Key Cases Cited

Alabama v. Smith, 490 U.S. 794 (1989) (presumption of vindictiveness when remand sentence is higher)
Rita v. United States, 551 U.S. 338 (2007) (presumption of reasonableness for within-Guidelines sentences)
United States v. Rodgers, 278 F.3d 599 (6th Cir. 2002) (de novo review standard for constitutional challenges to sentences)
Osborne v. Ohio, 495 U.S. 103 (1990) (context of preservation and sequence relevant to appeal)
Humphrey v. United States, 287 F.3d 422 (6th Cir. 2002) (preservation of constitutional objections not limited to explicit magic words)
Simmons v. United States, 587 F.3d 348 (6th Cir. 2009) (vague objections insufficient to preserve issue; context matters)
Texas v. McCullough, 475 U.S. 134 (1986) (vindictiveness considerations in remand sentencing)
Strayhorn v. United States, 250 F.3d 462 (6th Cir. 2001) (preservation considerations without explicit labeling)
Leachman v. United States, 309 F.3d 377 (6th Cir. 2002) (context for preservation discussion (overruled on other grounds))