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United States v. Johnson

United States Court of Appeals, Second Circuit

May 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JOHN JOHNSON, AKA DUKE, AKA DUKE HARDCORE, AKA JOHNNIE JOHNSON, Defendant-Appellant

Argued March 17, 2015.

Amended: June 3, 2015

Appeal fro the United States District Court for the District of Connecticut. No. 3:05-cr-179-1 -- Janet Bond Arterton, Judge.

Appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.), imposing a thirty-six-month term of incarceration after Defendant violated a condition of his supervised release. Defendant argues that the district court erred in determining the maximum term of incarceration for his supervised release violation by reference to the felony classification of his underlying offense at the time of its commission. He argues that, because his offense conduct would have been classified differently after the enactment of the Fair Sentencing Act, the district court should have determined the maximum term of incarceration by reference to the classification at the time of his supervised release revocation proceedings. We AFFIRM.

CHARLES F. WILLSON, Nevins Law Group LLC, East Hartford, CT, for Defendant-Appellant.

AVI M. PERRY, Assistant United States Attorney (Sandra S. Glover, Assistant United States Attorney, of counsel; David E. Novick, Assistant United States Attorney, on the brief), for Deirdre M. Daly, United States Attorney for the District of Connecticut, New Haven, CT, for Appellee.

Before: STRAUB, SACK, and DRONEY, Circuit Judges.

OPINION

Page 242

Droney, Circuit Judge :

Defendant-Appellant John Johnson appeals from a judgment of the United States District Court for the District of Connecticut (Arterton, J. ), imposing a thirty-six-month term of incarceration after Johnson violated a condition of his supervised release. On appeal, Johnson argues that the district court erred in determining the maximum term of incarceration by reference to the classification of his original offense at the time of its commission. Johnson argues that, because the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (" FSA" ), had since amended the statute under which he had been convicted, the district court should have determined the maximum term of incarceration by reference to the post-FSA classification of his offense conduct.[1]

Johnson's challenge is all but foreclosed by our recent decision in United States v. Ortiz, 779 F.3d 176 (2d Cir. 2015) (per curiam), in which we held that the penalties applicable when a defendant violates the conditions of supervised release are " determined by reference to the law in effect at the time of the defendant's underlying offense." Id. at 177-78. In light of Ortiz, the sole issue left for us to resolve is whether the Supreme Court's decision in Dorsey v. United States, 132 S.Ct. 2321, 183 L.Ed.2d 250 (2012), compels a different outcome when the underlying sentence was imposed pre-FSA

Page 243

but revocation proceedings are held subsequent to the FSA's effective date. We ...


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