Sixth Circuit Reverses Denial of First Step Act Relief Because Sentence Imposed Is Substantively Unreasonable
by Douglas Ankney
The U.S. Court of Appeals for the Sixth Circuit reversed the U.S. District Court for the Eastern District of Tennessee’s denial of Michael B. Johnson, II’s motion seeking a sentence reduction under § 404 of the First Step Act of 2018 (“FSA”) because the sentence imposed upon Johnson was substantively unreasonable.
In December 2006, the District Court sentenced Johnson to a prison term of 360 months based upon a jury’s verdict finding Johnson guilty of: (1) conspiracy to distribute and possess with intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1); (3) possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and (4) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) and 2.
Following his direct appeal and remand, Johnson was resentenced to 300 months’ imprisonment pursuant to Begay v. United States, 553 U.S. 137 (2008).
After several unsuccessful filings for postconviction relief, Johnson filed, in April of 2020, his pro se motion for a sentence reduction under § 404 of the FSA. Supplemented by counsel, Johnson’s motion asserted that his drug convictions were covered by the FSA and the Fair Sentencing Act. He contended his correct amended Guidelines range was now 160 to 185 months. Johnson also emphasized his rehabilitative efforts while incarcerated.
In response, the Government agreed that Johnson was eligible for a reduction of his sentence. Nevertheless, the Government recommended Johnson’s motion be denied due to his offense conduct and criminal history.
The District Court found that Johnson was eligible for a sentence reduction, but it denied his motion, stating: “While Defendant’s post-sentencing rehabilitation efforts are commendable, the nature and circumstances of Defendant’s offense and the need to protect the public, primarily based on Defendant’s criminal history, outweigh those efforts. As the Court noted at Defendant’s resentencing hearing, based on Defendant’s lengthy criminal history, which commonly involved firearms and violence, a sentence of three hundred months remains sufficient, but not greater than necessary, to promote respect for the law and protect the public from further crimes of Defendant.”
Johnson appealed. The Sixth Circuit observed that “‘like all sentences imposed by the district court’ a First Step Act sentencing decision ‘must ... be procedurally ... [and] substantively reasonable ....’” United States v. Boulding, 960 F.3d 774 (6th Cir. 2020). “[A] sentence is procedurally reasonable where the trial court follows proper procedures and gives adequate consideration to [the § 3553(a)] factors.” United States v. Perez Rodriguez, 960 F.3d 748 (6th Cir. 2020).
The Court conducted an in-depth analysis of the record and determined Johnson’s sentence was procedurally reasonable, stating that the District Court applied the § 3553(a) factors to Johnson’s case and concluded that those factors weighed against a sentence reduction. Thus, the Court ruled that the District Court did not err with respect to the process.
The Court then reviewed for substantive reasonableness. Substantive reasonableness requires courts to consider whether “the length of a sentence conforms with the sentencing goals set forth in 18 U.S.C. § 3553(a),” and “whether the district judge abused his discretion in determining that the § 3553(a) factors supported the sentence imposed.” United States v. Sherrill, 972 F.3d 752 (6th Cir. 2020). The dispositive issue is whether the District Court imposed a sentence that is “greater than necessary” even if the sentence was procedurally reasonable. Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020).
The Court explained the substantive reasonableness analysis focuses on the totality of the circumstances, including “the extent of any variance from the Guidelines range.” Gall v. United States, 552 U.S. 38 (2007). “Accordingly, a sentence above the guidelines range ‘requires the district court to consider the extent of the deviation to ensure that the justification is sufficiently compelling to support the degree of variance.’” Perez Rodriguez. The District Court is required to explain “how the present case is different from the typical mine-run case” within the “heartland to which the [Sentencing] Commission intends individual Guidelines to apply.” Kimbrough v. United States, 552 U.S. 85 (2007). “The greater the variance, the more compelling the justification must be.” Perez Rodriguez.
In the instant case, the Court stated that Johnson’s conduct was subject to penalties under the four counts that he was convicted of, but his conduct did not stand out from similar or “mine-run” cases in which courts have applied sentences within or below the Guidelines range. (See opinion for citations to numerous cases) Nor did Johnson’s criminal history render him an outlier in relation to other criminal defendants charged and convicted for similar offenses, according to the Court. In fact, Johnson’s criminal history placed him within the landscape of “typical” defendants whose sentences had been reduced pursuant to the FSA, the Court stated. See, e.g., United States v. Jackson, 515 F. Supp. 3d 708 (E.D. Mich. 2021).
The District Court had also cited the need to deter Johnson’s future criminal conduct and the need to protect the public, stating the 300-month sentence would keep Johnson confined until he was in his 50s, at which point the threat he posed to the public “should be substantially diminished and is one society can risk.”
But Johnson’s criminal history score had already doubled the range that applied to his drug charges and insured that he would be imprisoned for a greater length of time because of that risk, the Court explained. Consequently, to justify a 115 to 140-month upward variance, Johnson’s risk of reoffending needed to be substantiated by considerations beyond those that the Guidelines already contemplated. Perez Rodriguez. In Johnson’s case, the Court concluded that there were no facts substantiating such a risk.
Further, the Court noted that the need to avoid unwarranted sentencing disparities is at the heart of substantive reasonableness review. United States v. Lightning, 835 F.App’x 38 (6th Cir. 2020) (Unpublished). Johnson’s 300-month sentence represents the “greatest possible upward variance” for his drug convictions. United States v. Warren, 771 F.App’x 637 (6th Cir. 2019) (Unpublished). At the same time, the Court characterized Johnson’s case as a “mine-run case,” one that is a normal offense for someone with his specific sentencing enhancements and criminal history category. Lightning.
Sentencing Commission data reveal that most crack offenders in Johnson’s Criminal History Category are now sentenced below their applicable Guidelines ranges, demonstrating that Johnson’s case is an outlier. And the Court reiterated that “the greater the variance, the more compelling the justification must be.” Perez Rodriguez.
In sum, the Court concluded: “the district court gave too little weight to the need to avoid unwarranted disparities among defendants with similar records who have been found guilty of similar conduct. At the same time, the court unduly weighed the nature of Johnson’s offense, his criminal history and characteristics, and the need for the sentence to deter future criminal conduct and protect the public. Johnson’s sentence is thus substantively unreasonable. The district court abused its discretion in maintaining a 115-month upward variance given this case’s similarity to ‘typical’ cases where guidelines sentences are sufficient but not greater than necessary to meet the goals of sentencing.” (Internal citations and quotations omitted.)
Accordingly, the Court reversed the District Court’s order denying Johnson’s FSA motion, vacated his sentence, and remanded to the District Court for further proceedings consistent with the Court’s opinion. See: United States v. Johnson, 26 F.4th 726 (6th Cir. 2022).
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