United States of America v. James Johnman, Jr.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________

No. 18-2048
______________

UNITED STATES OF AMERICA

v.

JAMES JOHNMAN, JR.,
Appellant
______________

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-17-cr-00245-001)
District Judge: Honorable Wendy Beetlestone
______________

Argued September 17, 2019

Before: KRAUSE, MATEY, and RENDELL, Circuit Judges.

(Filed: January 28, 2020)

Alison Brill (Argued)
Office of the Federal Public Defender
22 South Clinton Avenue

2

Station Plaza #4, 4th Floor
Trenton, New Jersey 08609
Counsel for Appellant

William M. McSwain
Priya Desouza
Nancy Rue
Robert A. Zauzmer (Argued)
Office of the United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, Pennsylvania 19106
Counsel for Appellee

______________

OPINION
______________

MATEY, Circuit Judge.
The Justice for Victims of Trafficking Act (JVTA),
18 U.S.C. § 3014, requires a special monetary assessment from
all persons “convicted of an offense” under certain federal
laws. James Johnman, Jr. was convicted under three of those
laws and ordered to pay $5,000 for each conviction, $15,000
in total. That, in Johnman’s view, is too high. He argues the
JVTA should be read to impose only one assessment per case,
not one assessment per count of qualifying conviction. Using
standard tools of statutory interpretation, we conclude the
JVTA’s assessment applies to each conviction. So we will
affirm the sentence set by the District Court.

3

I. BACKGROUND
Johnman signed a plea agreement with the United States
admitting to three offenses involving the exploitation of
children: use of an interstate facility to entice a minor to engage
in sexual conduct, in violation of 18 U.S.C. § 2422(b) (Count
One); distribution of child pornography, in violation of 18
U.S.C. § 2252(a)(2) (Count Two); and possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4) (Count
Three). And the plea agreement provides a helpful roadmap to
frame the issue in this appeal. First, each count—and the
corresponding maximum penalty—appears in an individual
subparagraph of the agreement. There, together with the term
of imprisonment, supervised release, and other monetary
penalties faced, each subparagraph reads, “and a $5,000 special
victims assessment under 18 U.S.C. § 3014.” (App. at 15–16.)
Second, for clarity, a separate subparagraph aggregates all the
maximum and mandatory minimum penalties in the three
counts, including “an additional $15,000 special victims
assessment under 18 U.S.C. § 3014.” (App. at 16.) Third, yet
another provision of the agreement stipulates that “[Johnman]
agrees to pay the special victims and court assessments in the
amount of $15,300 before the time of sentencing or at a time
directed by this Court.”
1
(App. at 17.) And for good measure,
the District Court explained the $15,000 assessment at
Johnman’s plea hearing. Johnman offered no objections to any
of these terms.
Finding the agreement satisfactory, the District Court
sentenced Johnman to 368 months of incarceration, a lifetime
of supervised release, $1,000 restitution, and $15,300 in

1
The additional $300 stems from separate, $100-per-
count assessments imposed under 18 U.S.C. § 3013.

4

special assessments. After the entry of judgment, Johnman
filed a notice of appeal. The plea agreement states Johnman
waives his right to appeal or collaterally attack his convictions
or sentence. (App. at 20.) But it does permit an appeal if “the
defendant’s sentence on any count of conviction exceeds the
statutory maximum for that count.” (App. at 21.)
The United States moved to enforce the appellate
waiver and for summary affirmance. A motions panel of this
Court directed Johnman to address “whether the District
Court’s imposition of a $15,000 special assessment under the
Justice for Victims of Trafficking Act, 18 U.S.C. § 3014, was
erroneous.” (Order Dated Jan. 30, 2019.) We now answer that
question, concluding it was not.
II. J
URISDICTION AND THE STANDARD OF REVIEW
The District Court had subject matter jurisdiction under
18 U.S.C. § 3231 and we have jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. The waiver in Johnman’s plea
agreement does not preclude our review because it allows him
to challenge a sentence that exceeds the statutory maximum
created by Congress. And in any event, the parties cannot
bargain for an illegal sentence. See Baker v. Barbo, 177 F.3d
149, 155 (3d Cir. 1999).
Since Johnman failed to object to his sentence before
the District Court, we review only for plain error. See Fed. R.
Crim. P. 52(b); Johnson v. United States, 520 U.S. 461, 466–
67 (1997). This means “we must decide whether (1) an error
occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s] substantial
rights.’” United States v. Payano, 930 F.3d 186, 192 (3d Cir.
2019) (alteration in original) (quoting United States v. Olano,

5

507 U.S. 725, 732 (1993)). We need only consider the first
prong, as no error occurred.
III.
THE JUSTICE FOR VICTIMS OF TRAFFICKING ACT
REQUIRES A $5,000 ASSESSMENT FOR EACH CONVICTION
Congress has repeatedly passed legislation channeling
proceeds collected from child sexual abusers to programs
supporting victims. Most notably, in 1984, Congress created a
mandatory special monetary assessment to fund the Crime
Victims Fund. Victims of Crime Act of 1984, Pub. L. No. 98-
473, § 1402, 98 Stat. 2170, 2170–71 (codified as amended at
34 U.S.C. § 20101). Under that Act, “[t]he court shall assess
on any person convicted of an offense against the United
States” an amount tied to the severity of the offense. Id. § 1405,
98 Stat. at 2174–75 (codified as amended at 18 U.S.C. § 3013).
The monies deposited into the Fund flow to eligible crime
victim grant programs and antiterrorism efforts. 34 U.S.C.
§ 20101. Not surprisingly, questions about the meaning of the
phrase “convicted of an offense” in § 3013 arose long ago. And
some three decades back, we held that § 3013 requires one
assessment per count of conviction. See United States v.
Donaldson, 797 F.2d 125, 128 (3d Cir. 1986). In quick
succession, the Supreme Court and several circuits reached the
same conclusion, and the meaning of § 3013 was soon settled.
2

2
See Rutledge v. United States, 517 U.S. 292, 301
(1996) (noting that § 3013 requires a special assessment for
every count of conviction); United States v. Luongo, 11 F.3d 7,
10 (1st Cir. 1993) (holding that each felony requires a separate
special assessment); United States v. Oanh Vu Nguyen, 916
F.2d 1016, 1020 (5th Cir. 1990) (holding that the district court

6

In 2015, Congress established the Domestic Trafficking
Victims’ Fund and, to provide financial support, created
another special monetary assessment applicable to certain
crimes involving human trafficking and child exploitation.
Pub. L. No. 114-22, § 101, 129 Stat. 227, 228–30 (codified as
amended at 18 U.S.C. § 3014). Those monies are then used to
fund eligible trafficking victim and child abuse assistance
programs. 18 U.S.C. § 3014. And relevant here, Congress used
nearly identical language in § 3014 as it had in enacting § 3013.
A.
The Language of § 3014
With that grounding, “[a]s in any statutory construction
case, ‘[w]e start, of course, with the statutory text.’” Sebelius
v. Cloer, 569 U.S. 369, 376 (2013) (second alteration in
original) (quoting BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91
(2006)). The text of § 3014(a) reads:
In general.—Beginning on the date of enactment
of the Justice for Victims of Trafficking Act of
2015 and ending on September 30, 2021, in
addition to the assessment imposed
under section 3013, the court shall assess an
amount of $5,000 on any non-indigent person or
entity convicted of an offense under—

needed to impose an assessment for each conviction); United
States v. McGuire, 909 F.2d 440, 441–42 (11th Cir. 1990) (per
curiam) (concluding that the special assessment applies per
count of conviction); United States v. Smith, 857 F.2d 682, 686
(10th Cir. 1988); United States v. Dobbins, 807 F.2d 130, 132
(8th Cir. 1986); United States v. Pagan, 785 F.2d 378, 381 (2d
Cir. 1986).

7

(1) chapter 77 (relating to peonage, slavery, and
trafficking in persons);

(2) chapter 109A (relating to sexual abuse);

(3) chapter 110 (relating to sexual exploitation
and other abuse of children);

(4) chapter 117 (relating to transportation for
illegal sexual activity and related crimes); or

(5) section 274 of the Immigration and
Nationality Act (8 U.S.C. 1324) (relating to
human smuggling), unless the person induced,
assisted, abetted, or aided only an individual who
at the time of such action was the alien’s spouse,
parent, son, or daughter (and no other individual)
to enter the United States in violation of law.

“As usual, our job is to interpret the words consistent
with their ‘ordinary meaning . . . at the time Congress enacted
the statute.’” Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067,
2070 (2018) (alteration in original) (quoting Perrin v. United
States, 444 U.S. 37, 42 (1979)). Broken down for ease,
subsection (a) requires that courts (1) assess (2) an amount of
$5,000 (3) on any non-exempt person or entity (4) convicted of
an offense (5) under certain enumerated chapters of the
criminal code. Thus, how many assessments a court must
impose turns on the meaning of the phrase “convicted of an
offense” in the subsection. We examine the ordinary meaning
of those words individually and in context.

8

First, an “offense” is “a crime,” a “violation of the law.”
Offense, Black’s Law Dictionary (10th ed. 2014); accord
Offense, New Oxford American Dictionary (3d ed. 2010) (“a
breach of a law or rule; an illegal act”). Giving this word its
ordinary meaning, “offense” is best read to refer to a discrete
criminal act. “Convicted,” in turn, is the past participle of
“convict,” which means “to find or declare guilty of an offense
or crime[.]” Convict, Webster’s Third New International
Dictionary (3d ed. 1993) (emphasis added); accord Convict,
Black’s Law Dictionary (10th ed. 2014) (“to find (a person)
guilty of a criminal offense”). So “convicted” as normally
understood is an offense-specific term. Combining these terms,
a defendant like Johnman who pleads guilty to three counts has
been “convicted” of three separate “offense[s]”—or, put
another way, has three times been “convicted of an offense.”
And for every conviction, the sentencing court “shall assess an
amount of $5,000.” 18 U.S.C. § 3014(a).
Second, the statute uses the singular construction—
“convicted of an offense.” Id. (emphasis added). As the First
Circuit has noted, Congress’s use of the singular “an offense”
is best read to mean that “each offense” requires a separate
assessment, no matter how many convictions. See Luongo, 11
F.3d at 10. The most natural reading of the phrase “convicted
of an offense” means an assessment imposed on each
qualifying conviction.
Third, the balance of the statute confirms the ordinary
reading of subsection (a). Other references to the assessment in
the rest of § 3014 take three forms: (1) “[a]n assessment under
subsection (a)”;
3
(2) “[t]he amount assessed under subsection

3
See 18 U.S.C. § 3014(b).

9

(a)”;
4
and (3) “the obligation to pay an assessment imposed on
or after the date of enactment[.]”
5
All three add even more
clarity to the best reading of subsection (a).
Start with subsection (b):
(b) Satisfaction of other court-ordered
obligations.—An assessment under subsection
(a) shall not be payable until the person subject
to the assessment has satisfied all outstanding
court-ordered fines, orders of restitution, and any
other obligation related to victim-compensation
arising from the criminal convictions on which
the special assessment is based.

18 U.S.C. § 3014(b) (emphasis added).
Congress’s use of indefinite and definite articles when
referencing the special assessment is telling. That is because
“‘[w]ords are to be given the meaning that proper grammar and
usage would assign them.’” Nielsen v. Preap, 139 S. Ct. 954,
965 (2019) (first alteration in original) (quoting Antonin Scalia
& Bryan Garner, Reading Law: The Interpretation of Legal
Texts 140 (2012)). In writing “an assessment under subsection
(a)” Congress chose the indefinite article “an” to modify
“assessment.” As an indefinite article, “a” or “an” “implies that
the thing referred to is nonspecific.” Indefinite Article, New
Oxford American Dictionary (3d ed. 2010); see also
McFadden v. United States, 135 S. Ct. 2298, 2304 (2015)
(analyzing the significance of Congress’s use of an indefinite

4
See id. § 3014(f).
5
See id. § 3014(g).

10

article to mean some undetermined or unspecified particular);
cf. Shamokin Filler Co. v. Fed. Mine Safety & Health Review
Comm’n, 772 F.3d 330, 336 (3d Cir. 2014) (finding that
Congress’s choice of a definite article—rather than an
indefinite article—regulated activity at a particular place). And
so too here, Congress left the aggregate amount assessed under
subsection (a) dependent on the amount of qualifying
convictions.
6

Then, after first establishing “assessment” to mean an
indefinite or unrestrictive amount, Congress rightly pivots
when returning to “assessment” later in the same subsection.
Here, the statute twice uses the definite article “the” to modify

6
We recognize that one could interpret subsection (b)’s
use of the indeterminate “an” in more than one way. But the
structure of the statute clarifies that “an” refers to the
indeterminate total amount of the assessment. Subsection (a)
imposes an assessment if two conditions exist: (1) the person
is non-indigent; and (2) the person or entity is convicted of an
enumerated offense. Subsection (b) then assigns a lower
priority to that assessment, explaining that it will not be
payable until other specified debts are satisfied. So read
together, the qualifications of subsection (b) only come into
play if an assessment is ordered. And since an assessment
cannot be issued against the indigent or for a non-enumerated
conviction, the conditions of (b) simply do not arise in a matter
involving those exempted or inapplicable classes. In short, the
reader has no occasion to consider the conditions of subsection
(b) if the conditions of subsection (a) are not satisfied. All of
which illustrates that even if a word can bear more than one
meaning, it is the best ordinary reading of a statute we seek.
See Wis. Cent., 138 S. Ct. at 2072.

11

“assessment” and thus looks back to the initial reference to
assessment in the subsection. And so, read naturally, “the
assessment” or “the special assessment” in subsection (b)
means the total amount of “an assessment under subsection
(a).” Congress repeats this arrangement in subsection (g): “the
obligation to pay an assessment imposed on or after the date of
enactment of the Justice for Victims of Trafficking Act of 2015
shall not cease until the assessment is paid in full.” 18 U.S.C.
§ 3014(g) (emphasis added).
So too with the formulation in subsection (f), “[t]he
amount assessed under subsection (a),” where Congress does
not quantify “the amount.” Subsection (f) employs the
indeterminate phrase “the amount” to signify an unrestricted
sum. When used in this context, “amount” means “a quantity
of something, typically the total of a thing or things in number,
size, value, or extent[.]” Amount, New Oxford American
Dictionary (3d ed. 2010) (emphasis added). Congress’s choice
therefore leaves “the amount assessed” open to more than one
monetary value. 18 U.S.C. § 3014(f).
In all, the words of § 3014 confirm the District Court
was correct to impose a $15,000 special assessment under the
JVTA.
B. The Special Assessment in § 3014 Mirrors the
Neighboring Special Assessment in § 3013
This reading of § 3014 agrees with our long-standing
interpretation of the assessment codified at 18 U.S.C. § 3013.
Recall that § 3014 instructs that the special assessment applies
“in addition to the assessment imposed under section 3013.”
18 U.S.C. § 3014(a). And well before Congress wrote § 3014,
the meaning of the phrase “convicted of an offense” in § 3013

12

was settled in the federal courts. That history is significant, for
when Congress uses a phrase that has a settled judicial
interpretation, we presume it adopts that interpretation when it
chooses to repeat the same text in a new statute. See Lamar,
Archer & Cofrin, LLP v. Appling, 138 S. Ct. 1752, 1762
(2018); see also Berardelli v. Allied Servs. Inst. of Rehab.
Med., 900 F.3d 104, 117 (3d Cir. 2018). Under this prior-
construction canon, “if courts have settled the meaning of an
existing provision, the enactment of a new provision that
mirrors the existing statutory text indicates, as a general matter,
that the new provision has that same meaning.” Lightfoot v.
Cendant Mortg. Corp., 137 S. Ct. 553, 563 (2017) (citing
Bragdon v. Abbott, 524 U.S. 624, 645 (1998)). By borrowing
nearly identical language when drafting § 3014, Congress gave
its implicit endorsement of courts’ treatment of § 3013, as the
“repetition of the same language in a new statute indicates . . .
the intent to incorporate its . . . judicial interpretations as well.”
Berardelli, 900 F.3d at 117 (alterations in original) (quoting
Bragdon, 524 U.S. at 645).
And more than history and location link § 3013 and
§ 3014. Section 3014’s cross-reference to § 3013 further
counsels courts to interpret the two statutes in lockstep, as it
would be incongruous to conclude Congress intended courts to
read the same phrase differently when applying assessments to
the same defendant in the same case. We can also dismiss the
possibility that Congress sought to alter the settled
interpretation of § 3013’s phrase “convicted of an offense”
when it enacted § 3014. To the contrary, “‘[t]he modification
by implication of the settled construction of an earlier and
different section [or a related statute] is not favored.’” TC
Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct.
1514, 1520 (2017) (quoting United States v. Madigan, 300

13

U.S. 500, 506 (1937)). Thus, absent “clear indication” of
Congress’s plan to change the meaning of a judicially settled
construction, that construction should not be disturbed. Id. As
a result, “[t]he broader statutory context points to the same
conclusion the immediate text suggests.” Wis. Cent., 138 S. Ct.
at 2071.
And the logic used by courts to interpret § 3013 extends
to § 3014 as well. See Luongo, 11 F.3d at 10 (explaining that
“because the statute is phrased in the singular, its terms imply
that each offense—each felony—calls for a separate special
assessment, even when a single defendant is simultaneously
convicted of multiple charges”). Just as with § 3013, it is
illogical to read § 3014’s application to depend “not upon the
number of offenses of which [the defendant] was convicted,”
but on the happenstance of “whether she was tried for those
offenses in one or more proceedings.” Donaldson, 797 F.2d at
128 (citing Pagan, 785 F.2d at 381).
7

7
In trying to distinguish § 3014 from § 3013, Johnman
highlights several ways in which § 3014 “is more onerous”
(Appellant’s Br. at 16), including that the amount of the
assessment is much higher, compare 18 U.S.C. § 3014(a), with
id. § 3013(a), that the obligation to pay it lasts longer, compare
id. § 3014(g), with id. § 3013(c), and that § 3014(a) contains
an indigency exception while § 3013(a) does not. All true, but
our role is not to “second-guess Congress’ decision.” Rotkiske
v. Klemm, 140 S. Ct. 355, 361 (2019). There is no freestanding
rule of statutory interpretation that a court may rewrite statutes
to be less “onerous” to criminal defendants. Indeed, that
Congress created an indigency exception in § 3014(a) shows it
grasped the severity of the assessment.

14

For these reasons, the text of § 3013 and its context
leave only one interpretation: where a defendant is non-
indigent, a separate $5,000 assessment applies to every
qualifying count of conviction.
8

C. Lenity is Inapplicable
Finally, Johnman argues the “rule of lenity” requires
resolving any statutory ambiguities in his favor. “[T]he
touchstone of the rule of lenity is statutory ambiguity.” Bifulco
v. United States, 447 U.S. 381, 387 (1980) (internal quotation

8
Johnman looks to overcome the language of § 3014
with comments from members of Congress. For instance,
Johnman cites remarks by one of the JVTA’s legislative
sponsors—made two years after the law’s enactment—
explaining that the JVTA “also allows a federal judge to
impose an additional assessment of up to $5,000.” (Opening
Br. at 9 (quoting 163 Cong. Rec. H4564 (daily ed. May 24,
2017)).) Generally, “[p]ost-enactment legislative history is not
a reliable source for guidance” in assessing the ordinary
meaning of a statute. Pa. Med. Soc’y v. Snider, 29 F.3d 886,
898 (3d Cir. 1993); see also Sikkelee v. Precision Airmotive
Corp., 822 F.3d 680, 698–99 (3d Cir. 2016). And in any event,
those remarks fight the text of the statute: the JVTA is not
permissive and does not “allow” judges to impose an
assessment “up to” $5,000. Rather, the assessment is
mandatory. See 18 U.S.C. § 3014(a) (“the court shall assess an
amount of $5,000” (emphasis added)). So these comments lend
Johnman no support, for we “must presume that Congress
‘says in a statute what it means and means in a statute what it
says there.’” Rotkiske, 140 S. Ct. at 360 (quoting Conn. Nat’l
Bank v. Germain, 503 U.S. 249, 253–54 (1992)).

15

marks omitted). But invoking the rule “requires more than a
difficult interpretative question.” United States v. Flemming,
617 F.3d 252, 270 (3d Cir. 2010). Rather, the rule “comes into
operation at the end of the process of construing what Congress
has expressed, not at the beginning as an overriding
consideration of being lenient to wrongdoers.” United States v.
Barbosa, 271 F.3d 438, 455 (3d Cir. 2001) (quoting Callanan
v. United States, 364 U.S. 587, 596 (1961)).
9
And it may be
applied only where we are left with “grievous ambiguity” after
applying all other traditional tools of statutory interpretation.
United States v. Diaz, 592 F.3d 467, 474–75 (3d Cir. 2010).
Johnman sees ambiguity not in the text, but in the
application of § 3014(a), citing inconsistencies in the
assessments imposed by district courts in this Circuit.
10
But
that is not enough, for “[a] statute is not ambiguous for
purposes of lenity merely because there is a division of judicial
authority over its proper construction.” Reno v. Koray, 515
U.S. 50, 64–65 (1995) (internal quotation marks omitted).

9
We inverted this order in Donaldson, considering, and
rejecting, the rule of lenity before turning to the “normal
canons of statutory construction.” 797 F.2d at 127–28. That
path has been repudiated by later case law, and neither party
suggests we must apply it here.
10
Compare United States v. Porter, No. 2-16-cr-00036
(E.D. Pa.) (imposing a $5,000 JVTA assessment based on two
qualifying convictions), with United States v. Leroy, No. 2-16-
cr-00243 (W.D. Pa.) (imposing a $20,000 JVTA assessment
based on four qualifying convictions), and United States v.
Johnman, No. 2-17-cr-00245 (E.D. Pa.) (imposing a $15,000
JVTA assessment based on three qualifying convictions).

16

Because we find the statute clear, the rule of lenity does not
affect our review.
11

The $5,000 assessment under the Justice for Victims of
Trafficking Act applies to each qualifying count of conviction.
We will thus affirm the sentence imposed by the District Court.

11
Even assuming we found the assessment under the
JVTA ambiguous, for the rule of lenity to apply we would need
to assess whether the statute imposes a criminal rather than
civil sanction—an issue we do not reach today.