Argued: December 12, 2016
Johnson appeals from a judgment of the United States District
Court for the Northern District of New York (McAvoy,
J.), entered on October 20, 2015, convicting him,
following the entry of a guilty plea, of conspiracy to
possess and distribute cocaine, cocaine base, heroin, and
marijuana, in violation of 21 U.S.C. §§ 841(a)(1)
and 846, and of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), and sentencing him
principally to a mandatory term of life imprisonment. Johnson
also appeals from an order denying his motion to withdraw his
guilty plea. We conclude that Johnson's plea was not
entered voluntarily, knowingly, and intelligently.
Accordingly, we vacate the judgment of the district court and
the guilty plea, direct that the case be reassigned, and
remand for further proceedings consistent with this opinion.
D. Silver, Assistant United States Attorney, for Richard S.
Hartunian, United States Attorney for the Northern District
of New York (with Miroslov Lovric, Assistant United States
Attorney, on the brief), Albany, New York, for the United
States of America.
Lawrence Gerzog, New York, New York, for Defendant-Appellant.
Before: Jacobs, Cabranes, and Parker, Circuit Judges.
Jacobs, Circuit Judge
Johnson appeals from a criminal judgment of the United States
District Court for the Northern District of New York (McAvoy,
J.), entered October 20, 2015, on a plea of guilty
(without a plea agreement) to a drug conspiracy in violation
of 21 U.S.C. §§ 841(a)(1) and 846, and to being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). A few months after his plea on July 3,
2015, but before his sentencing, Johnson wrote to the
district court seeking to withdraw his plea and replace his
lawyer, asserting that he did not understand that his guilty
plea would necessarily entail a mandatory life sentence. If
he understood that the judge would have no discretion,
Johnson explained, he would have gone to trial. The district
court denied the motion without a hearing, and Johnson also
appeals from that denial.
conclude that Johnson's plea was not entered voluntarily,
knowingly, and intelligently. In the plea hearing, the
impression was given that there was a range of sentencing
options: the judge spoke of "the potential
sentences"; the prosecutor gave an account of multiple
maximum and minimum sentences, discussed supervised release,
and warned of the forfeiture of rights (including the right
to hold public office); and the court and prosecutor
discussed Sentencing Guidelines ranges and judicial
discretion to weigh the facts and circumstances. Although the
prosecutor at one point stated that a minimum sentence of
life would "trump" other considerations, that
critical advice was overwhelmed by incompatible advisories.
The sentencing transcript suggests that Johnson's counsel
(on whom Johnson would rely to sort it out) may not have
understood the inexorable nature of the sentence either. And
Johnson's assertion that he would have gone to trial if
he knew that a life sentence was foreordained is rendered
plausible by the arresting fact that he derived absolutely no
benefit or advantage from the plea.
we vacate the district court's judgment and Johnson's
plea, direct that the case be reassigned, and remand for
further proceedings consistent with this opinion.
October 2014, a grand jury indicted Calvin Johnson on one
count of participation in a drug-trafficking conspiracy in
violation of 21 U.S.C. §§ 841(a)(1) and 846 and one
count of possession of a firearm by a felon in violation of
18 U.S.C. § 922(g)(1). The statutory determinants of his
sentencing exposure appear relatively complex, but his actual
sentence if convicted could hardly be simpler.
firearm count, pursuant to 18 U.S.C. § 924(a)(2),
carries a maximum sentence of ten years of imprisonment and
no mandatory minimum. The drug count, pursuant to 21 U.S.C.
§§ 841(b)(1)(A) and 851, carries a maximum sentence
of life imprisonment and a mandatory minimum that depends
upon the application of prior-felony enhancements: the
baseline is a mandatory minimum of ten years of imprisonment;
a prior conviction for a felony drug offense makes a
defendant eligible for a mandatory minimum of twenty years;
and two such prior convictions make a defendant eligible for
a mandatory life sentence. Pursuant to § 851, the
"imposition of an enhanced penalty is not automatic,
" but is triggered when "the Government files an
information notifying the defendant in advance of trial (or
prior to the acceptance of a plea) that it will rely on that
defendant's prior convictions to seek a penalty
enhancement." United States v. LaBonte, 520
U.S. 751, 754 n.1 (1997).
government did seek an enhancement: it filed an information
establishing that Johnson had been twice convicted of
criminal sale of a controlled substance in the third degree
in violation of New York State Penal Law § 220.39(1).
Those judgments were entered nearly 20 years earlier, in
September and December of 1995, when Johnson was 19 years
old. Johnson was incarcerated from 1995 until 2003. He
appears not to have had significant involvement with the
criminal justice system after his release until he was
indicted in the present case, when he was 38 years old.
indictment charges Johnson with responsibility for drug
trafficking that allegedly occurred in or through a nightclub
that Johnson operated in Binghamton, New York. The weapon
that gives rise to the firearm count was apparently
discovered behind a jukebox. By operation of the prior-felony
information, conviction on the drug-trafficking count entails
a mandatory sentence of life imprisonment. No other sentence
March 2015, Johnson and his lawyer, Lee Kindlon, appeared by
videoconference from Albany before Senior U.S. District Judge
Thomas McAvoy in Binghamton. The purpose of the hearing was
to enter a guilty plea. Judge McAvoy advised Johnson that he
had a right to appear in the same room and asked whether it
was "okay with [him]" that they proceed by
videoconference, and Johnson said that it was. App. 19.
Johnson had no plea agreement, but that circumstance was
never mentioned at his plea hearing. It is not clear from the
record whether his lawyer attempted to negotiate an
agreement, or whether the government was willing.
colloquy, the judge asked Johnson whether Kindlon had
explained to him "the potential sentences" (in the
plural), "or consequences of pleading guilty, " and
Johnson said yes; the judge asked him if he had understood
them, and Johnson said that he had. Id. at 20.
the judge asked the prosecutor, Miroslov Lovric, to
"please advise Mr. Johnson and the Court what the
maximum or any minimum penalties would be." Id.
at 30. Lovric said that "the possible maximum penalty is
life imprisonment" and that "the mandatory minimum
pursuant to statute is life imprisonment." Id.
He went on to add that "there's a supervised release
term required of at least ten years"; that "[i]f
there's any violation of the terms of supervised release,
the Court would have the power to add an additional five
years of imprisonment for any violation thereof"; that
the second count had a "possible maximum sentence"
of ten years with "no mandatory minimum required";
and that, with respect to both counts, "in addition to
these possible maximum penalties, " Johnson would lose
certain rights, including the right to vote, to possess a
firearm, to hold certain public offices, and to obtain
certain licenses. Id. at 30-31. He summed up, saying
that he "believe[s] those are the possible maximum
penalties and the statutory minimum penalties."
Id. at 31.
discussing the prosecutor's remarks or asking Johnson
whether he understood them, Judge McAvoy then addressed
[T]he Court also has to inform you that under and pursuant to
certain Sentencing Guidelines that used to be mandatory but
are no longer mandatory but still must be considered by the
sentencing court, that my discretion in sentencing you is
thereby affected and the Court must enforce the law as it
stands today but sometimes the Court can sentence you above
the Guidelines, below the Guidelines or [e]ven outside of the
Guidelines depending upon the facts, the ...