Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Johnson

United States Court of Appeals, Second Circuit

March 10, 2017

United States of America, Appellee,
v.
Calvin Johnson, A.K.A. Cal, Defendant-Appellant.

          Argued: December 12, 2016

         Calvin 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.

         Vacated and remanded.

          Paul 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.

          Dennis Jacobs, Circuit Judge

         Calvin 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.

         We 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.

         Accordingly, 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.

         BACKGROUND

         I

         In October 2014, a grand jury indicted Calvin Johnson on one count of participation in a drug-trafficking[1] 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.

         The 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).

         The 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.

         This 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 is possible.

         II

         In 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.

         In 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.

         Later, 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.

         Without discussing the prosecutor's remarks or asking Johnson whether he understood them, Judge McAvoy then addressed Johnson:

[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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.