United States v. Devin Johnson , 765 F.3d 702 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-3649
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEVIN JACOB JOHNSON,
Defendant-Appellant.
Appeal from the United States District Court for the
Central District of Illinois.
No. 4:12-cr-40071-JES-JAG-1 — James E. Shadid, Chief Judge.
ARGUED MAY 29, 2014 — DECIDED AUGUST 27, 2014
Before BAUER, KANNE, and SYKES, Circuit Judges.
BAUER, Circuit Judge. This is a direct appeal of a criminal
sentence against defendant-appellant Devin Johnson (“John-
son”) for being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). Johnson presents two challenges in
this appeal. First, Johnson argues that the district court
erroneously applied a four-level enhancement to his sentence
under § 2K2.1(b)(6)(B) for possessing a firearm on another’s
property in connection with another felony. Second, Johnson
2 No. 13-3649
argues that the court improperly imposed additional super-
vised release conditions in its written amended judgment that
were not announced orally at his sentencing hearing. For the
following reasons, we affirm the district court’s imposition of
a four-level enhancement to Johnson’s sentence and reverse
and remand that part of the sentence imposing conditions that
were not orally announced at Johnson’s sentencing hearing
and direct the district court to clarify Johnson’s conditions for
supervised release.
I. BACKGROUND
On August 12, 2012, Johnson and his girlfriend Alisha
Johnson (“Alisha”)1 were at a family barbeque at Alisha’s
parents’ home in Rock Island, Illinois. Also present at the
barbeque were Alisha’s parents Alton Hunter (“Hunter”) and
Antoinette Johnson (“Antoinette”), Alisha’s sister Annette
Johnson (“Annette”), and several of Alisha’s and Annette’s
children. At some point in the evening, a verbal argument
erupted among Alisha, Annette, and Hunter regarding
laundry. Johnson attempted to interject himself into the
argument, at which point Hunter told Johnson to stay out of it;
that the issue was a family matter that did not concern him.
Hunter asked Alisha to take the laundry and leave; Johnson
and Alisha then left the house.
Several hours later, Hunter, Antoinette, and Annette heard
a knock on a window of the house and a voice say, “Come
outside.” The three went to the back door and observed Alisha
1
Although they share the same last name, Alisha and Johnson are not
related.
No. 13-3649 3
in the doorway, another man in the alley beyond the yard, and
Johnson. Johnson was wearing black clothing, dark gloves, and
pointing a black handgun directly at Hunter. Antoinette went
back into the house to call the police, informing them that
Johnson was at her home wearing black gloves, a black shirt,
and a black baseball hat and that he had a black gun. Hunter
calmly told Johnson to leave and said, “You going to shoot me,
shoot me.” Johnson chose to leave, going back to the alley with
Alisha and leaving in a red SUV.
Officers arrived at Hunter’s home and searched the alley.
They discovered an Intratec TEC-9 handgun, its loaded high-
capacity magazine, and a dark work glove a short distance
from Hunter’s house. Shortly thereafter, police stopped the
vehicle in which Johnson, Alisha, and the other man were
riding. Johnson was charged in a single-count indictment for
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). Johnson pleaded not guilty.
At trial, the government called several witnesses including
Hunter, Antoinette, and Officers Eugenio Barrera (“Officer
Barrera”) and Scott Gable (“Officer Gable”) of the Rock Island
Police Department. Officer Barrera testified that he was on
duty on August 12, 2012, when he received a call from a
dispatcher that there was a man with a gun at Hunter’s
address. When he arrived, Antoinette told Officer Barrera that
Johnson left in a red SUV. Officer Barrera and his partner
searched the alley behind Hunter’s home and discovered a
brown work glove and a stray merchandise tag approximately
100 meters from the residence. He then found a gun clip and a
TEC-9 firearm with an obliterated serial number. The gun did
not have weather damage. Officer Barrera also identified the
4 No. 13-3649
glove he recovered from the alley, the gun clip and ammuni-
tion, the TEC-9 firearm, and a second glove recovered from the
red SUV that he saw after returning to the Rock Island County
Jail.
Officer Gable testified that he was working on August 12,
2012, when he received a call from dispatch identifying a
fleeing suspect as Devin Johnson, that he had a black gun, and
that he left the scene in a red truck. A subsequent update
informed Officer Gable that the vehicle was a red Chevy Blazer
type vehicle. Not long after the call from dispatch, Officer
Gable saw a vehicle matching that description and pulled it
over. Inside he discovered Johnson, Alisha, and another man
Antonio Metcalf. Officer Gable testified that he observed
marijuana in the vehicle. Johnson admitted to Officer Gable
that he owned the drugs and was arrested. With Alisha’s
consent, Officer Gable searched the vehicle and found one dark
work glove.
The government then called Antoinette who testified that
her family was having a barbeque in their backyard when an
argument began regarding Alisha’s children’s clothes. Antoi-
nette stated that Hunter told Alisha to take the clothes and
leave. A while later, Antoinette heard a knock on the living
room window and a voice say, “Come outside.” When she
followed Hunter into the backyard, Antoinette saw Johnson
with a black gun in his hand pointed at her husband and ran
inside to call police.
Hunter then testified, consistent with his wife, about the
argument that occurred and that he told Alisha to leave.
Hunter said he watched Alisha and Johnson get into their car
No. 13-3649 5
and drive away. Later, after hearing a knock on the window,
Hunter said he went out the back door to see Johnson wearing
dark gloves and pointing a long, black gun at him. Hunter
testified that he told Johnson to “put the gun down” and “you
going to shoot me, shoot me.” Although unable to identify the
gun at trial, Hunter identified Johnson and testified that he had
known Johnson for fifteen to twenty years. After a three-day
trial, a jury found Johnson guilty as charged.
At Johnson’s sentencing hearing, the district court found
that Johnson possessed a firearm on another’s property in
connection with another felony, and therefore applied a four-
level enhancement under § 2K2.1(b)(6)(B) (“If the defendant …
[u]sed or possessed any firearm or ammunition in connection
with another felony offense … increase by 4 levels.”). The court
found that Johnson committed the underlying felony offense
of Aggravated Unlawful Use of a Weapon (AUUW). In
relevant part, the AUUW statute states:
(a) A person commits the offense of aggravated unlawful
use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in
any vehicle or concealed on or about his or
her person, except when … on the land or
in the legal dwelling of another person as
an invitee with that person’s permission,
any pistol, revolver, stun gun or taser or
other firearm; and
(3) One of the following factors is present:
6 No. 13-3649
(H) the person possessing the weapon
was engaged in the commission or at-
tempted commission of a
misdemeanor involving the use or
threat of violence against the person
or property of another.
720 ILCS 5/24-1.6(a)(1), (a)(3)(H).
With the four-level enhancement, Johnson’s Guidelines
range was 135 to 168 months’ imprisonment; without the
enhancement, his Guidelines range was 92 to 115 months’
imprisonment. For violations of § 922(g), the criminal code
provides a ten-year (120-month) maximum penalty. 18 U.S.C.
§ 924(a)(2).
At the sentencing hearing, the court listened to both sides’
arguments involving the various factors under 18 U.S.C.
§ 3553. Johnson’s counsel also acknowledged that Johnson
had issues with his mental health and substance abuse.
Counsel requested that Johnson receive “a comprehensive
medical and psychiatric evaluation” by the Bureau of Prisons
and that he participate in a drug and alcohol treatment
program while incarcerated.
Relying on the factors under § 3553, the Presentence Report
prepared by the probation office, the severity of Johnson’s
offense, the need to protect the public and deter others, and
Johnson’s “unbroken chain of criminal behavior,” the court
determined that an appropriate sentence would be close to the
ten-year maximum. The court chose a sentence of 108 months’
imprisonment, a sentence in the middle of the appropriate
Guidelines range had the court not imposed the four-level
No. 13-3649 7
enhancement. With the enhancement, Johnson’s sentence was
well below the Guidelines range. The court noted that:
[T]he thing that really aggravates [the offense] is it
wasn’t a situation where Mr. Johnson pulled a gun out
right then and there in the middle of this heated argu-
ment. That argument was diffused and resolved and the
parties believe Mr. Johnson is gone for a period of a
couple of hours, I believe. Then he comes back. He came
back with a gun … . And he didn’t just get any gun, he
had a TEC-9 fully loaded … . That’s not heat of the
moment … he made that decision after being given the
opportunity to deliberate and think about it. He decided
the way to handle that was to go and get a gun. Some-
thing in his criminal history demonstrates, he is pretty
fond of doing.
Finally, the court imposed a three-year term of supervised
release. The court orally announced the following conditions:
While on supervised release, not commit another
federal, state or local crime.
Not possess a controlled substance.
Submit to drug tests as directed.
Cooperate in the collection of DNA as directed.
Not possess a firearm, ammunition or destructive
device or other dangerous weapon.
In addition, participate in psychiatric services or pro-
gram of mental health counseling as directed.
Refrain from the use of alcohol.
8 No. 13-3649
Not purchase, possess, use, distribute or administer any
controlled substance except as prescribed by a physi-
cian.
The court found that Johnson did not have the ability to pay
a fine, so no fine was imposed. No “standard conditions” were
adopted by the court at sentencing and the court did not state
that it was adopting the conditions imposed in the Presentence
Report.
The district court entered a written judgment on Novem-
ber 26, 2013, and an amended judgment the next day. Aside
from mistakenly stating that Johnson pleaded guilty, the
original and amended judgments are identical. The written
judgment states that Johnson “must comply with the standard
conditions that have been adopted by this court as well as any
additional conditions on the attached page.” The judgment
listed nineteen conditions for supervised release, two special
conditions, and required Johnson to pay an assessment of $100.
The first six conditions stated:
The defendant shall not commit another federal, state or
local crime.
The defendant shall not unlawfully possess a controlled
substance. The defendant shall refrain from any unlaw-
ful use of a controlled substance. The defendant shall
submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests
thereafter, as determined by the court.
The defendant shall not possess a firearm, ammunition,
destructive device, or any other dangerous weapon.
No. 13-3649 9
The defendant shall cooperate in the collection of DNA
as directed by the probation officer.
The judgment then listed thirteen “standard conditions
of supervision,” which are:
(1) the defendant shall not leave the judicial district
without the permission of the court or probation
officer;
(2) the defendant shall report to the probation officer
in the manner and frequency directed by the court
or probation officer;
(3) the defendant shall answer truthfully all inquiries
by the probation officer and follow the instructions
of the probation officer;
(4) the defendant shall support his or her depend-
ants and meet other family responsibilities;
(5) the defendant shall work regularly at a lawful
occupation, unless excused by the probation officer
for schooling, training, or other acceptable reasons;
(6) the defendant shall notify the probation officer at
least ten days prior to any change in residence or
employment;
(7) the defendant shall refrain from any use of
alcohol and shall not purchase, possess, use, distrib-
ute, or administer any controlled substance or any
paraphernalia related to any controlled substances,
except as prescribed by a physician;
10 No. 13-3649
(8) the defendant shall not frequent places where
controlled substances are illegally sold, used, distrib-
uted, or administered;
(9) the defendant shall not associate with any per-
sons engaged in criminal activity and shall not
associate with any person convicted of a felony,
unless granted permission to do so by the probation
officer;
(10) the defendant shall permit a probation officer to
visit him or her at any time at home or elsewhere
and shall permit confiscation of any contraband
observed in plain view of the probation officer;
(11) the defendant shall notify the probation officer
within seventy-two hours of being arrested or
questioned by a law enforcement officer;
(12) the defendant shall not enter into any agree-
ment to act as an informer or a special agent of a law
enforcement agency without the permission of the
court; and
(13) as directed by the probation officer, the defen-
dant shall notify third parties of risks that may be
occasioned by the defendant’s criminal record or
personal history or characteristics and shall permit
the probation officer to make such notifications and
to confirm the defendant’s compliance with such
notification requirement.
No. 13-3649 11
The two “special conditions of supervision” state:
1. You shall participate in psychiatric services
a n d / o r a p r o g r a m o f ment al h e a l t h
counseling/treatment as directed by the probation
officer and shall take any and all prescribed medica-
tions as directed by the treatment providers. You
shall pay for these services as directed by the proba-
tion officer.
2. You shall refrain from any use of alcohol and
shall not purchase, possess, use, distribute, or
administer any controlled substance or mood alter-
ing substance, or any paraphernalia related to any
controlled substance or mood altering substance,
except as prescribed by a physician. You shall, at the
direction of the probation officer, participate in a
program for substance abuse treatment including
not more that six tests per month to determine
whether you have used controlled substances and or
alcohol. You shall pay for these services as directed
by the probation office.
II. DISCUSSION
A. Four-Level Enhancement Pursuant to § 2K2.1(b)(6)(B)
We review de novo whether the facts are sufficient to
support an enhancement under the Guidelines. United States v.
Pabey, 664 F.3d 1084, 1094 (7th Cir. 2011). The district court’s
factual determinations are reviewed for clear error. United
States v. Walsh, 723 F.3d 802, 807 (7th Cir. 2013). We will reverse
a district court’s application of an enhancement only if a
12 No. 13-3649
review of the evidence leaves us with “the definite and firm
conviction that a mistake has been made.” United States v.
Johnson, 489 F.3d 794, 796 (7th Cir. 2007).
Johnson argues that the four-level enhancement should not
apply because the government did not present sufficient
evidence to prove a violation of the AUUW statute. Johnson
contends that the government failed to prove that he was not
an invitee on Hunter’s property or that he committed either
assault or battery to satisfy the requirements of subsection (H)
of the AUUW statute. We find that the government met its
burden of proof and the court did not clearly err in its imposi-
tion of the four-level enhancement at sentencing.
1. Government Sufficiently Proved that Johnson was
Not an Invitee
The proof necessary for a conviction is beyond a reasonable
doubt; the proof necessary for a sentence enhancement is only
by a preponderance of the evidence. United States v. Tapia, 610
F.3d 505, 513 (7th Cir. 2010); United States v. Wyatt, 102 F.3d
241, 246 (7th Cir. 1996).
Johnson claims that the government failed to prove that he
does not fall within an exception to the AUUW statute that
provides the defendant has not violated the statute if he
possessed a gun “on the land or in the legal dwelling of
another person as an invitee with that person’s permission… .” 720
ILCS 5/24-1.6(a)(1) (emphasis added). While the court did not
explicitly make a finding that Johnson was no longer an invitee
when he left Hunter’s property with Alisha, Johnson did not
raise the invitee issue before the trial court. Johnson did,
however, appear to contend that he falls within the invitee
No. 13-3649 13
exception to the AUUW statute because “[t]here was no
evidence that Mr. Johnson was not allowed to come back to the
property to see any of the lawful residents.” Regardless, the
only reasonable inference to be made from the circumstances
is that Johnson was not an invitee with permission when he
returned to Hunter’s property with a gun.
In People v. Aguilar, 944 N.E.2d 816 (Ill. App. Ct. 2011) (rev’d
on other grounds), the court explained that the invitee exception
to the AUUW statute applies exclusively to individuals with
specific “‘permission’ to carry a handgun” on the premises. Id.
at 821. After interjecting himself into a family argument that
did not concern him, Johnson and Alisha left Hunter’s house
after being explicitly told to leave. No evidence indicates that
Hunter gave Johnson permission to return to his property,
particularly with a firearm.
The court made such findings when it discussed the
government’s evidence. The court described how after Hunter
exited the back door and found himself staring down the barrel
of Johnson’s gun, he “chased Mr. Johnson pretty much off his
property. Told him go ahead and shoot me if you are going to.
Otherwise, get out of here.” While lacking the precise language
of an “invitee without permission,” it is evident from the
record, and the court found, that Johnson was not given
permission to reenter Hunter’s premises and certainly not
while brandishing a firearm. Moreover, Antoinette immedi-
ately ran back into the house to call the police when she saw
Johnson in the backyard with a gun pointed at her husband;
another indication that the gun-wielding Johnson was not on
their property with permission.
14 No. 13-3649
2. Government Sufficiently Proved that Johnson
Committed Assault
While the government made reference to both assault and
battery, the record makes evident that the district court
focused its findings on assault. We will do the same here.
The predicate misdemeanor for Johnson’s violation of the
AUUW statute was aggravated assault. Under Illinois law, the
Class C misdemeanor of assault occurs “when, without lawful
authority, [the defendant] knowingly engages in conduct
which places another in reasonable apprehension of receiving
a battery.” 720 ILCS 5/12-1(a), (b). When the assault is commit-
ted with a deadly weapon, as it was here, the offense is
the Class A misdemeanor of aggravated assault. 720 ILCS 5/12-
2(c)(1). Under Illinois law, whether an individual had a
reasonable apprehension of receiving battery is a question of
fact. In re Gino W., 822 N.E.2d 592, 594 (Ill. 2005).
The district court found that when Johnson returned to
Hunter’s property uninvited and pointed a loaded gun at him
in an attempt to threaten him, his conduct constituted the
misdemeanor of aggravated assault, rendering his actions a
violation of the AUUW statute. Johnson relies on the district
court’s comments at his sentencing hearing to claim that the
government did not prove the necessary elements of assault.
In explaining why the government had met its burden, the
court stated:
I think the irony of this—and I’m not sure this is a factor
or not, where a person had to feel a perceived threat. It
appeared to me from the facts and from Mr. Hunter’s
testimony that he was clearly—any time a person
No. 13-3649 15
would pull a gun, I would assume that you’re being
threatened. But it didn’t seem that Mr. Hunter was
affected. In other words, he chased Mr. Johnson pretty
much off his property. Told him go ahead and shoot me
if you’re going to. Otherwise, get out of here. This is
none of your business. This is a family issue.
Based on these statements, Johnson contends that Hunter
lacked the required apprehension of battery required for a
charge of assault.
In support of the court’s finding, the government presented
evidence of Hunter’s trial testimony, the AUUW statute, and
the definition of assault. While it may have appeared that
Hunter was unaffected by Johnson’s confrontation, he testified
that staring down the barrel of a gun was a stressful situation
and clearly recognized that he could be shot. Assault does not
require actual fear on the part of the victim, but simply the
reasonable apprehension of the defendant’s ability to inflict
imminent bodily harm upon him. In other words, simply
because Hunter did not act fearful when Johnson pointed the
gun at him does not mean that Hunter did not appreciate
the risk of harm that could be inflicted upon him. See, e.g.,
People v. Alexander, 350 N.E.2d 144 (Ill. 1976) (fact finder may
infer a reasonable apprehension of battery from the facts of the
case). Furthermore, the reasonable apprehension of battery
required for assault is an objective standard, or “one which
would normally be aroused in the mind of a reasonable
person” in those circumstances. In Interest of C.L., 534 N.E.2d
1330, 1334 (Ill. App. Ct. 1989); In re Gino W., 822 N.E.2d at 595
(“[C]ourts have affirmed a defendant’s conviction of aggra-
vated assault when the victim testified that the defendant’s
16 No. 13-3649
conduct ‘was enough to scare somebody,’ but not necessarily
the victim.”). The court’s statement about the “irony” that
Hunter did not seem affected is irrelevant, and it did not err in
finding that a reasonable person in Hunter’s position would
have an apprehension of battery.
The government carried its burden of proving by a prepon-
derance of the evidence that Johnson possessed a firearm in
connection to another felony. The court made sufficient
findings to subject Johnson to the four-level enhancement
under § 2K2.1(b)(6)(B).
Finally, Johnson argues that People v. Aguilar, 2 N.E.3d 321(Ill. 2013) invalidates the AUUW statute. This is incorrect.
Aguilar invalidated only one part of the statute, irrelevant to
this case, which prohibited a person from carrying a firearm in
public or on another’s property if the gun was “uncased,
loaded and immediately accessible at the time of the offense.”
720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d); Aguilar, 2 N.E.3d at 328
n.3 (“We make no finding, express or implied, with respect to
the constitutionality or unconstitutionality of any other section
or subsection of the AUUW statute.”). The provision at issue in
this appeal, (a)(3)(H), has never been invalidated or found to
be unconstitutional.
B. Conditions of Supervised Release
Johnson contends that any additional conditions provided
in the court’s written judgment should be vacated because they
conflict with the unambiguous oral pronouncement of condi-
tions at his sentencing hearing. We review a claim of an
inconsistency between the oral and written judgments de novo,
comparing the sentencing transcript with the written judgment
No. 13-3649 17
to determine whether an error occurred as a matter of law.
United States v. Bonanno, 146 F.3d 502, 511 (7th Cir. 1998).
1. Written Conditions of Supervised Release Not
Announced Orally Must Be Vacated
It is well-established in this circuit that when there is a
conflict between an oral and later written sentence, the oral
judgment pronounced from the bench controls. United States v.
Alburay, 415 F.3d 782, 788 (7th Cir. 2005). “[If] the oral version
is unambiguous, there is no need to look beyond the oral
version for any clarification from the written version … . The
written version is thus a nullity, not requiring further discus-
sion” Id. Here, the district court unambiguously announced
several specific conditions of supervised release at Johnson’s
sentencing hearing and did not include any statement as to
whether other standard conditions would apply. We conclude
that the court exercised its discretion in selecting only some of
the discretionary conditions to impose on Johnson. According
to our holding in Alburay, any new conditions imposed in the
later written judgment are inconsistent with the court’s oral
order and must be vacated. Cf., Bonanno, 146 F.3d at 512 (when
the district court orally informed the defendants that “all the
standard conditions of supervised release adopted by this
Court” would apply, but did not enumerate those conditions
until the written order, the written order was merely a clarifi-
cation of the vague oral pronouncement and was not in conflict
with the oral pronouncement).
Nonetheless, the district court retains the ability to modify
Johnson’s conditions of supervised release at any time after his
sentencing hearing. See, e.g., United States v. Adkins, 743 F.3d
18 No. 13-3649
176, 196 (7th Cir. 2014). Any issues with the conditions can
therefore be easily corrected upon remand.
2. Payment for Services and Drug Testing Should Be
Contingent on Johnson’s Ability to Pay and “Mood
Altering Substances” is Too Vague/Over-broad
Neither the imposition of payment for psychiatric services,
drug testing, and substance abuse programs nor the limitation
on the use of “mood altering substances” were included in the
court’s oral pronouncement of Johnson’s conditions of super-
vised release. As explained above, these conditions are
therefore a nullity that should be reconsidered by the district
court on remand. United States v. Perry, 743 F.3d 238, 242 (7th
Cir. 2014); Alburay, 415 F.3d at 788.
However, it behooves this court to recognize our recent
opinion in United States v. Siegel, 753 F.3d 705 (7th Cir. 2014),
clarifying similar issues with the sentencing conditions at issue
here. In Siegel, this court found that conditions prohibiting the
use, purchase, or possession of “mood altering substances”
was troubling due to the fact that the term is “neither defined
nor self-evident.” Id. at 713. We suggested that a preferable
definition for the substances sought to be controlled would be
“psychoactive substances that impair physical or mental
functioning.” Id. This more precise definition would avoid
confusion over whether substances such as coffee or sugar,
known to alter one’s mood, are to be avoided. When imposing
restrictions upon a defendant’s purchase, possession, or use of
such substances, we further suggested that the district court
consider the particular conduct, character, criminal history,
and other characteristics of the defendant as well as the
No. 13-3649 19
practical purpose of such restrictions in regard to criminal
behavior and recidivism. Id. at 717.
Also, this court held a requirement that the defendant bear
the costs of certain mandatory treatments, programs, or
testing, without qualification, must be modified to make
explicit when, and under what circumstances, the defendant is
required to pay for services mandated in the conditions of
supervised release. Id. at 714. We found that under 18 U.S.C.
§ 3672, the government should bear those costs if the defendant
lacks the ability to pay for such treatment or programs. Id. We
reasoned that without this rule, the defendant’s supervised
release may be revoked for mere inability to pay, which
“would constitute imprisonment for debt.” Id. In short, our
recent holding in Siegel emphasized that district courts must
make conditions of supervised release clear and appropriate in
relation to a particular defendant.
III. CONCLUSION
We affirm the district court’s finding that Johnson violated
the AUUW statute, permitting the application of a four-level
Guidelines enhancement. We affirm the supervised release
conditions orally pronounced by the district court at sentenc-
ing, but vacate any additional conditions provided in the
written judgment with the request that the court reconsider
Johnson’s conditions of supervised release on remand.