United States v. Seth Johnston, 695 F. App'x 905

Attorney Seth Johnston pleaded guilty to mail and wire fraud, conspiracies to obstruct justice, distribute synthetic marijuana, and evade taxes after diverting client and estate funds for personal use.
At first sentencing the court calculated an offense level of 41, Criminal History II, Guidelines range 360 months–life, and varied downward to 240 months. This court vacated and remanded solely for a ruling on a disputed USSG § 3B1.1(c) leadership-role enhancement.
On remand the district court applied a two-level leadership-role enhancement, finding Johnston led accomplice Brett Rowlett in the fraud, and again sentenced Johnston to 240 months.
Johnston challenged the leadership enhancement, argued the court failed to consider his post-conviction rehabilitation and non-retroactive Guideline amendments, and contended the sentence and restitution were substantively unreasonable.
The district court explained its sentencing choice, considered § 3553(a) factors, and refused further downward variance given the breach of trust. The Sixth Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Proper application of USSG § 3B1.1(c) leadership-role enhancement	Johnston: did not exercise requisite control; enhancement improperly applied	Gov: Johnston directed Rowlett and others, created structure and guided the scheme	Affirmed — district court not clearly erroneous; evidence shows Johnston led and controlled accomplice(s)
Scope of remand	Johnston: remand was general allowing reargument of prior issues	Govt: remand was limited to role enhancement	Remand was limited to the leadership-role issue; Johnston may not relitigate previously decided matters
Consideration of post-conviction rehabilitation & non-retroactive Guidelines changes	Johnston: court failed to properly consider rehabilitation and new Guidelines that would lower the range	Govt: court may consider but is not required to reduce sentence; court did consider these and declined further variance	Procedurally sound — court considered rehabilitation and non-retroactive changes and reasonably declined additional variance
Substantive reasonableness of sentence and restitution	Johnston: 240 months (120-month downward variance) and restitution unreasonable; court relied on other defendants' sentences improperly	Govt: sentence justified by serious breach of trust; comparing similar defendants appropriate under § 3553(a)(6)	Substantively reasonable — no abuse of discretion; court balanced § 3553(a) factors and avoided impermissible considerations

United States v. Johnston, [citation="631 F. App'x 381"] (6th Cir. 2015) (prior panel decision vacating sentence and remanding for ruling on role enhancement)
United States v. Washington, 715 F.3d 975 (6th Cir. 2013) (discusses leader/organizer enhancement analysis)
United States v. Morales-Martinez, [citation="545 F. App'x 495"] (6th Cir. 2013) (court need not find every commentary factor to apply enhancement)
United States v. Dupree, 323 F.3d 480 (6th Cir. 2003) (no verbatim recitation of commentary factors required)
United States v. Vasquez, 560 F.3d 461 (6th Cir. 2009) (enhancement requires control over one or more participants)
Gall v. United States, 552 U.S. 38 (2007) (procedural-reasonableness standards at sentencing)
Pepper v. United States, 562 U.S. 476 (2011) (district court may consider post-conviction rehabilitation at resentencing)
United States v. Orlando, 363 F.3d 596 (6th Cir. 2004) (distinguishing limited vs. general remands)
United States v. Vowell, 516 F.3d 503 (6th Cir. 2008) (standard for substantive-reasonableness review)