United States of America v. Victor Johnson, also known as VIC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 5, 2013
Decided August 12, 2013
Before
FRANK H. EASTERBROOK, Chief Judge
WILLIAM J. BAUER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 12‐3092
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
VICTOR JOHNSON, also
known as VIC,
Defendant‐Appellant.
Appeal from the United States
District Court for the Northern
District of Illinois, Eastern Division.
No. 11 CR 134
Milton I. Shadur,
Judge.
O R D E R
Victor Johnson was charged with one count of bank robbery by force, violence, or
intimidation, in violation of 18 U.S.C. § 2113(a). Johnson pleaded guilty and was sentenced
to 180 months’ imprisonment. Johnson now appeals his sentence, arguing that it is both
procedurally and substantively unreasonable. Finding no error, we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

-- 1 of 4 --

No. 12‐3092 Page 2
On February 17, 2011, Johnson and his co‐defendant, David Holmes, entered a Charter
One Bank in Chicago, Illinois, and approached the teller counter. Holmes climbed over the
counter and told the teller to open the safe and give him all the money. The teller then
opened the safe, and Holmes removed $6,183. At the same time, Johnson grabbed a bank
customer and threatened, “Don’t move or I’ll kill you. Give me your money.” The
customer stated that she had just deposited all of her money and had nothing to give him.
Johnson then pressed his gun into her back and forced her to the next teller window. By
now, Holmes had emptied the bank’s safe. Johnson then struck the customer in the head
with the gun and fled the bank with Holmes and the money from the safe.
On December 20, 2011, Johnson pleaded guilty to one count of bank robbery by force,
violence, and intimidation, and on August 23, 2012, the district court sentenced him to 180
months’ imprisonment. Johnson filed this timely appeal.
First, Johnson argues that his sentence is procedurally unreasonable. We review
de novo whether a district court followed proper procedures at sentencing. United States v.
Trujillo‐Castillon, 692 F.3d 575, 578 (7th Cir. 2012). Specifically, we look to whether the
sentencing judge properly calculated the Guidelines range, recognized that the Guidelines
range was not mandatory, considered the sentencing factors in 18 U.S.C. § 3553(a), selected
a sentence based on facts that were not clearly erroneous, and explained the sentence
adequately. United States v. Annoreno, 713 F.3d 352, 357 (7th Cir. 2013) (citations omitted).
Johnson contends that the district court treated the Guidelines with undue import by
displaying a “strong pull towards the [Guidelines] range, showing a presumption of
reasonableness.” Johnson cherry‐picks the following comments from the district court’s
extensive discussion at sentencing to support his assertion,
[W]hen the Guidelines were binding, my approach was typically to adopt
presumptively something in the middle of the Guideline range and then say, and
where do the mitigating factors take it to take it down toward the lower part, or
where do the aggravating factors take it to bring it to the upper part. That still
seems to me to be a legitimate approach to the whole problem. First you define
the range and then you see where does the specific conduct point to in terms of
how you apply the range.

-- 2 of 4 --

No. 12‐3092 Page 3
[T]he Guidelines put [Johnson] into a range, those factors. And now you decide
where does someone get sentenced within the range. And that is a function of
how serious the factor is in connection with or in comparison with or in relation
to comparable conduct that would place the person within the range.
But these comments, when read in the context of the entire record, were part of a larger
discussion from the district court judge of the history of the Guidelines—far from a “strong
pull towards a presumption of reasonableness” as Johnson suggests. The district court,
rather, properly calculated the advisory Guidelines range, critiqued the Guidelines,
reviewed the history of the law, and proceeded through a detailed discussion of the
§ 3553(a) factors. There was no procedural error at Johnson’s sentencing.
Next, Johnson contends the district court relied upon prohibited documents when it
concluded that Johnson had committed a second controlled substance offense for the
purposes of the Career Offender Guideline. To qualify as a career offender under § 4B1.1
a defendant must have at least two prior felony convictions for crimes of violence or
controlled substances. Here, the district court determined that Johnson had two qualifying
convictions of controlled substance offenses: (1) a conviction for delivery of crack cocaine,
in violation of 720 Ill. Comp. Stat. 570/401; and (2) a conviction for criminal drug
conspiracy, in violation of 720 Ill. Comp. Stat. 570/405. The second conviction involved a
“divisible” statute, meaning the statute could be violated by an agreement to merely
possess a controlled substance (720 Ill. Comp. Stat. 570/402), or by an intent to distribute,
manufacture, or deliver a controlled substance (720 Ill. Comp. Stat. 570/401). If Johnson
was convicted of the latter, the offense would qualify as his second controlled substance
conviction and Johnson would be deemed a career offender under the Guidelines. See
Salinas v. United States, 547 U.S. 188, 126 S.Ct. 1675, 164 L.Ed.2d 364 (2006). Johnson
acknowledges in his brief that he failed to make an objection at the district court level and
forfeited this claim. United States v. Anderson, 604 F.3d 997, 1001 (7th Cir. 2010). When
evaluating a forfeited claim, we review for plain error. Id.
The crux of Johnson’s argument is that, because his second controlled substance
offense involved a divisible statute, the district court erred by utilizing his PSR when
determining that he was a career offender because the PSR incorporated his police
report—a document which in and of itself would not pass muster under Shepard v. United
States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). But Johnson does not argue that
the PSR’s description of his second state drug offense was inaccurate, or that he was
actually convicted of conspiracy to merely possess under the divisible statute at issue. In

-- 3 of 4 --

No. 12‐3092 Page 4
fact, during his sentencing hearing, Johnson described his offense as an agreement to deliver
crack cocaine. Johnson’s counsel also agreed at sentencing that Johnson, “technically does
qualify as a career offender” and only offered arguments in mitigation of that fact, such as
Johnson’s addiction issues and difficult upbringing. A defendant’s criminal record is
commonly stipulated, giving no reason for the district court to unilaterally search through
the state court’s archives for an indictment, when both parties are in agreement. See United
States v. Aviles‐Solarzano, 623 F.3d 470, 475 (7th Cir. 2010) (citing Fed. R. Crim. P.
32(i)(3)(A)). Accordingly, we find no plain error.
We review the district court’s sentencing decisions for substantive reasonableness
under an abuse of discretion standard. United States v. Marin‐Castano, 688 F.3d 899, 902 (7th
Cir. 2012) (internal citations omitted). A sentence is considered reasonable if the district
court gives meaningful consideration to the factors enumerated in § 3553(a), including the
advisory Sentencing Guidelines, and arrives at a sentence that is objectively reasonable in
light of the statutory factors and the individual circumstances of the case.” United States
v. Shannon, 518 F.3d 494, 496 (7th Cir. 2008) (internal citations omitted). Further, because
Johnson’s sentence is within the Guidelines range, we apply a presumption of
reasonableness. United States v. Baker, 655 F.3d 677, 683 (7th Cir. 2011) (citing Rita v. United
States, 551 U.S. 338, 347, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007)).
Johnson argues his 180‐month sentence is unreasonable because the sentence is longer
than necessary to meet the § 3553(a) sentencing goals, considering mitigating factors such
as Johnson’s substance abuse issues, as well as an unfair application of the career‐offender
guideline. See U.S.S.G. § 4B1.1. First, the record reflects that the district court enumerated
the § 3553(a) factors and discussed them individually before imposing Johnson’s sentence.
The district court was not persuaded that Johnson’s mitigating factors, such as his difficult
upbringing and addiction problems, outweighed the aggravating factors in the
case—including Johnson’s lengthy criminal history. Johnson also argues the application
of the career offender provision was too harsh; Johnson’s criminal history does not support
that conclusion. It is clear from the record that the district court carefully considered and
weighed the § 3553(a) factors and settled on a within Guidelines range sentence of 180
months’ imprisonment. Finding no abuse of discretion, we AFFIRM.

-- 4 of 4 --