Filed: Sep. 10, 2013
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4900 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:10-cr-00093-BR-1) Submitted: August 30, 2013 Decided: September 10, 2013 Before WILKINSON, GREGORY, and AGEE, Circuit Judges. Affirmed in part, vacated
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4900 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior District Judge. (7:10-cr-00093-BR-1) Submitted: August 30, 2013 Decided: September 10, 2013 Before WILKINSON, GREGORY, and AGEE, Circuit Judges. Affirmed in part, vacated i..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4900
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CHARLETTE DUFRAY JOHNSON, a/k/a Charlotte Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. W. Earl Britt,
Senior District Judge. (7:10-cr-00093-BR-1)
Submitted: August 30, 2013 Decided: September 10, 2013
Before WILKINSON, GREGORY, and AGEE, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Charlette Dufray Johnson, Appellant Pro Se. Jennifer P.
May-Parker, Assistant United States Attorney, Kristine L. Fritz,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charlette Dufray Johnson pled guilty to two counts of
making false, fictitious, or fraudulent claims for disaster
relief (“Counts One and Four”), in violation of 18 U.S.C. § 287
(2006); eight counts of wire fraud, in violation of 18 U.S.C.A.
§ 1343 (West Supp. 2012) (“Counts Seven through Fourteen”); and
two counts of aggravated identity theft (“Counts Fifteen and
Sixteen”), in violation of 18 U.S.C. § 1028A (2006). The
district court originally sentenced Johnson to sixty months of
imprisonment on Counts One and Four and ninety-seven months on
Counts Seven through Fourteen, to run concurrently, and
twenty-four months on Counts Fifteen and Sixteen, to run
concurrently to each other and consecutively to the remaining
counts, resulting in a total sentence of 121 months’
imprisonment. The court ordered Johnson to pay $107,593.30 in
restitution.
Johnson appealed, and we affirmed her convictions.
United States v. Johnson, 480 F. App’x 186, 188 (4th Cir. 2012)
(No. 11-4725) (unpublished). However, we found her sentence
procedurally unreasonable because the district court failed to
make factual findings adequate to support a vulnerable victim
Guidelines enhancement. Id. at 189. We further concluded that
the district court erred in calculating the appropriate amount
of restitution. Id. at 189-90. We accordingly vacated
2
Johnson’s sentence and restitution order and remanded for
“further proceedings.” Id. at 190.
On remand, the court effectively conducted a de novo
resentencing, hearing argument and ruling on all of Johnson’s
sentencing objections. The court removed the vulnerable victim
enhancement, but reaffirmed its remaining Guidelines
calculations. The court imposed a sentence of sixty months on
Counts One and Four and ninety-seven months on Counts Seven
through Fourteen, to run concurrently, and twenty-four months on
Counts Fifteen and Sixteen, to run consecutively to each other
and to the remaining counts, resulting in a total sentence of
145 months. The court also ordered Johnson to pay $53,666.30 in
restitution.
Johnson appeals pro se, challenging her convictions,
sentence of imprisonment, and restitution order. We affirm her
convictions and restitution order, affirm her sentence in part,
vacate her sentence in part, and remand for further proceedings
consistent with this opinion.
With regard to her convictions, Johnson’s informal
brief, liberally construed, contends that the district court
abused its discretion by failing to provide her a full hearing
before revoking her pretrial release, as required by 18 U.S.C.
§ 3148 (2006), and in denying her motion to dismiss the charges
against her on this basis. Because Johnson could have, but did
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not, challenge the absence of this revocation hearing during her
original appeal, this issue is waived and therefore barred by
the operation of the mandate rule. See United States v. Susi,
674 F.3d 278, 283 (4th Cir. 2012); cf. Doe v. Chao,
511 F.3d
461, 465 (4th Cir. 2007) (recognizing that issues not raised in
initial appeal are generally waived and “not remanded”); Volvo
Trademark Holding Aktiebolaget v. Clark Mach. Co.,
510 F.3d 474,
481 (4th Cir. 2007) (“[U]nder the mandate rule a remand
proceeding is not the occasion for raising new arguments or
legal theories.”). We find no exception to the mandate rule
applicable to this argument. See United States v. Pileggi,
703
F.3d 675, 682 (4th Cir. 2013) (describing exceptions). We
therefore affirm Johnson’s convictions.
Johnson next raises multiple challenges to her
sentence of imprisonment. We find two of these arguments to
warrant further consideration on remand. 1 First, Johnson argues
that the district court violated Apprendi v. New Jersey, 530
U.S. 466 (2000), by imposing an enhancement under U.S.
1
We reject Johnson’s assertions that the district court
erred in failing to order the preparation of a revised
presentence report, incorrectly determined the amount of loss
for purposes of determining her Guidelines sentencing range, and
failed to credit her for time served as utterly without merit.
4
Sentencing Guidelines Manual (“USSG”) § 3C1.3 (2010). 2 Because
Johnson raised this issue in the district court, we review her
challenge de novo. 3 United States v. Mackins, 315 F.3d 399, 405
(4th Cir. 2003).
USSG § 3C1.3 provides for a three-level enhancement
“[i]f a statutory sentencing enhancement under 18 U.S.C. § 3147
applies.” Section 3147, in turn, provides for “a term of
imprisonment of not more than ten years . . . consecutive to any
other sentence of imprisonment” for any defendant who is
convicted of a felony committed while released on pretrial
supervision. 18 U.S.C. § 3147(1) (2006).
Apprendi requires that any fact increasing a criminal
penalty beyond the statutory maximum otherwise applicable must
be charged in the indictment and either submitted to a jury or
admitted by the defendant. 530 U.S. at 490. Johnson argued
that the USSG § 3C1.3 enhancement violated Apprendi because its
predicate facts—that she committed offense conduct while
2
While Johnson also challenges other Guidelines
enhancements under Apprendi, we find these challenges lack
merit. See United States v. Benkahla, 530 F.3d 300, 312 (4th
Cir. 2008).
3
Although Johnson did not raise this issue in her original
sentencing hearing or first appeal, we conclude that it is
appropriately considered in this appeal pursuant to one of the
recognized exceptions to the mandate rule. See Pileggi, 703
F.3d at 682 (recognizing exception to mandate rule where
“controlling legal authority has changed dramatically”).
5
released on pretrial supervision—were neither charged in the
indictment nor found by a jury or admitted by Johnson. The
district court overruled this objection after concluding that
the enhancement did not result in a sentence greater than the
statutory maximum applicable to her underlying offense.
After Johnson was resentenced, however, the Supreme
Court held in Alleyne v. United States, 133 S. Ct. 2151 (2013),
that Apprendi applies equally to facts increasing a statutory
minimum sentence. Id. at 2156. Because the district court did
not have the benefit of Alleyne at the time it addressed
Johnson’s objection, we vacate the portion of the sentence
imposing this enhancement and remand to the district court to
consider the impact, if any, of Alleyne on Johnson’s USSG
§ 3C1.3 enhancement.
Johnson also asserts that the district court violated
the Double Jeopardy and Due Process Clauses by imposing a
harsher sentence on remand. 4 In North Carolina v. Pearce, 395
U.S. 711 (1969), the Supreme Court held that the Double Jeopardy
Clause does not categorically bar the imposition of a more
severe punishment upon reconviction for an offense. Id. at 723.
4
We reject Johnson’s contention that the court’s sentence
violates double jeopardy. See, e.g., United States v.
DiFrancesco, 449 U.S. 117, 134-37 (1980); United States v.
Silvers,
90 F.3d 95, 101 (4th Cir. 1996).
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However, due process prohibits a sentencing court from imposing
a punishment on resentencing to penalize the defendant for
successfully pursuing her appellate rights. Id. at 724. Thus,
to protect against such vindictiveness by a resentencing court,
the Supreme Court held “that whenever a judge imposes a more
severe sentence upon a defendant after a new trial, the reasons
for his doing so must affirmatively appear.” Id. at 726. If
this requirement is not met, “a presumption arises that a
greater sentence has been imposed for a vindictive purpose—a
presumption that must be rebutted by objective information
justifying the increased sentence.” Alabama v. Smith, 490 U.S.
794, 799 (1989) (internal quotation marks and alteration
omitted).
On remand, the district court ordered the sentences
applicable to Counts Fifteen and Sixteen to run consecutively to
each other, rather than concurrently as in the original
sentencing. See 18 U.S.C. § 1028A(b)(2), (4). However, the
district court’s reasons for imposing a more severe sentence on
remand are not expressly clear from the record, and the
Government concedes error on this basis. We therefore vacate
Johnson’s sentence as to Counts Fifteen and Sixteen and remand
to the district court for further clarification of whether, and
why, the court intended to impose the sentences applicable to
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Counts Fifteen and Sixteen consecutively to each other on
resentencing.
Johnson raises several other challenges to her
sentence of imprisonment. Assuming, without deciding, that
these arguments are not barred by the operation of the mandate
rule, see Pepper v. United States, 131 S. Ct. 1229, 1250-51
(2011); United States v. Alston, __ F.3d __,
2013 WL 3722367, at
*2-3 (4th Cir. July 17, 2013), we conclude these arguments are
meritless.
Turning to the restitution order, Johnson argues that
the district court failed to comply with this court’s mandate,
abused its sentencing discretion, and denied her right to due
process by re-imposing restitution in the amount of $107,593.30.
However, the resentencing court ordered Johnson to pay
$53,666.30 in restitution—exactly the amount found appropriate
in this court’s prior opinion. See Johnson, 480 F. App’x at
190. While Johnson also asserts that district court personnel
deliberately “falsified” her restitution order, we find no basis
in the record to support Johnson’s speculative assertion.
Finally, Johnson challenges the district court’s
denial of her requests for grand jury transcripts under the
Freedom of Information Act, 5 U.S.C.A. § 552 (West Supp. 2012),
and Brady v. Maryland, 373 U.S. 83 (1963). Generally, grand
jury proceedings are secret, and matters occurring before the
8
grand jury are subject to nondisclosure absent exceptions set
forth in Federal Rule of Criminal Procedure 6(e). See United
States v. Sells Eng’g, Inc., 463 U.S. 418, 424-25 (1983). To
warrant disclosure, the petitioner must made “a strong showing
of particularized need.” Id. at 434. We conclude that Johnson
failed to make the requisite showing to warrant disclosure. Nor
did the district court violate FOIA or Brady by failing to
disclose these materials. See Vinson v. True,
436 F.3d 412, 420
(4th Cir. 2006) (required elements for valid Brady claim);
United States v. Casas,
376 F.3d 20, 22 (1st Cir. 2004) (federal
courts not “agencies” subject to FOIA); McDonnell v. United
States,
4 F.3d 1227, 1246-47 (3d Cir. 1993) (grand jury
disclosures exempt from FOIA); Fund for Constitutional Gov’t v.
Nat’l Archives & Records Serv.,
656 F.2d 856, 869 (D.C. Cir.
1981) (same).
Accordingly, we affirm Johnson’s convictions; vacate
her sentence of imprisonment in part to permit the court to
(1) reconsider its ruling on the USSG § 3C1.3 enhancement in
light of Alleyne, and (2) clarify its decision to impose the
sentences for Counts Fifteen and Sixteen consecutively. We
affirm Johnson’s sentence and restitution order as to all
remaining issues; and remand for further proceedings consistent
with this opinion. We deny Johnson’s motion for bail or release
pending appeal, and we deny as moot Johnson’s motions for
9
transcripts and other documents at government expense. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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