United States of America v. Jess A. Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2156
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
J ESS A. J OHNSON ,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06CR00007-001—John Daniel Tinder, Judge.
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A RGUED N OVEMBER 14, 2006—D ECIDED D ECEMBER 13, 2006
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Before E ASTERBROOK , Chief Judge, and P OSNER and
C OFFEY, Circuit Judges.
P OSNER , Circuit Judge. Under the federal sentencing
regime created by the Booker decision, the sentencing
judge is first to compute and consider the guidelines
range for the defendant’s offense and then to select and
impose a sentence—which can be inside or outside that
range (provided of course that it is within the statutory
sentencing range)—guided by the sentencing factors in 18
U.S.C. § 3553(a). If the judge follows this procedure and
commits no legal or clear factual errors and discusses
the applicability of any substantial statutory sentencing

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2 No. 06-2156
factors drawn to his attention by either party, we must
uphold his sentence unless it is unreasonable. Since the
statutory sentencing factors are multiple and vague, it
will be the rare case in which it is possible to say that the
judge who has complied with the procedural require-
ments set forth above imposed an unreasonable sen-
tence. E.g., United States v. Bullion, 466 F.3d 574, 575 (7th
Cir. 2006); United States v. Jordan, 435 F.3d 693, 696 (7th
Cir. 2006). “His choice of sentence, whether inside or
outside the guideline range, is discretionary and subject
therefore to only light review.” United States v. Demaree,
459 F.3d 791, 795 (7th Cir. 2006).
Dextromethorphan hydrobromide (DXM) is a cough
suppressant found in such over-the-counter drugs as
Robitussin. It is also consumed “recreationally” as an
intoxicant in doses that are much greater than when used
in cough medicines and are potentially fatal. It is not a
controlled substance under Title 21 of the Criminal Code
but it is regulated by the Food and Drug Administra-
tion, which requires that it be accurately labeled accord-
ing to its intended use.
The defendant, Jess Johnson, created with another per-
son a company to import DXM from India. Rather than
having any legitimate commercial purpose in forming
the company, they did it because they wanted to con-
sume the drug themselves as an intoxicant and sell what
they didn’t consume to other “recreational” users in order
to finance their own use and perhaps make some money;
in fact they made a total of $30,000 on their sales of DXM
during the short period in which they were in operation.
The company received three shipments of DXM from
India, totaling 35 kilograms. The third shipment was
intercepted by the FDA, which directed the company to

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No. 06-2156 3
state its intended use. Johnson told the agency that the
DXM he was importing “was for research and develop-
ment only” and “in no way is this product going to be
used for human consumption.” In fact, though, Johnson’s
partner estimated that 95 percent of the company’s cus-
tomers were buying its product to get high.
During the four months in which the company was in
business before being shut down by the FDA, it made
hundreds of sales, amounting to 15 kilograms of DXM
(roughly 15,000 doses). Five of its customers, all of them
teenage boys, died from consuming DXM that they had
bought from the company’s website. Although the pack-
ages in which the chemical was shipped to purchasers
were labeled “not for human consumption,” Johnson
admitted knowing that they bought DXM in order to
get high; for they had such e-mail addresses as
“poisonthebrain@digiverse.net.” Two of the five deaths
occurred after Johnson learned about two of the first three
deaths. Yet after learning about them the only change he
made in the company’s modus operandi was to alter the
website so that to place an order a customer had to ac-
knowledge having read the terms and conditions of
purchase, among which was that the purchaser must be
at least 18 years old and be purchasing DXM solely for
purposes of research. No means of verifying compliance
with the conditions was established and no warning was
sent to previous purchasers.
Johnson pleaded guilty to three counts of introducing
a misbranded drug into interstate commerce, in viola-
tion of 21 U.S.C. § 331(a), the misbranding consisting
in his representing that the drugs were intended for re-
search rather than for human consumption. Each count
was for one of the misbranded shipments that his com-

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4 No. 06-2156
pany made that resulted in a death. The judge sentenced
Johnson to consecutive prison terms totaling 77 months.
(Johnson’s partner received an identical sentence.) That
was 61 months above the top of the applicable guidelines
range though below the statutory maximum of 108 months
(three years on each count). The judge based the six and
a half year sentence on the lethal consequences of John-
son’s acts, plus the recklessness demonstrated by his
continuing to sell the misbranded product after learning
that two of his customers had overdosed on it and died.
The deaths of the first three teenagers might be ascribed to
negligence rather than to recklessness; and the other two
teenagers who died had bought the DXM from Johnson’s
company before he learned of any of the deaths. But of
course after learning about two of the deaths, he knew—not
merely should have known—that there was a substantial
risk that more of his customers would die, and yet he
continued to sell DXM for recreational use and failed to
warn existing customers, including the two teenagers
who died after he learned of the first two deaths. That
conduct on his part—the continued selling and the fail-
ure to warn—was reckless. United States v. Howard, 454
F.3d 700, 704 (7th Cir. 2006); United States v. Ladish Malting
Co., 135 F.3d 484, 488 (7th Cir. 1998); United States v.
Ihegworo, 929 F.2d 26, 29 (5th Cir. 1992).
Misbranding that results in multiple deaths as a conse-
quence of the negligence of the misbrander, coupled with
his recklessness in continuing to sell the product after
learning that deaths had resulted, with no effort to warn
existing customers, justified a sentence much longer than
16 months. The arguments that Johnson makes in favor of
a sentence that would mock the gravity of his conduct are
unavailing. Some of them are also in poor taste, such as

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No. 06-2156 5
that the teenagers who died “were certainly responsible
in part for the ultimate harm.” That is true in a literal
sense, but ignores the fact that the drugs were mis-
branded because there were no instructions for use;
Johnson’s customers overdosed because the website did
not indicate what a safe dosage would be. Other argu-
ments that he makes are beside the point, such as that
the fact that misbranding carries only a three-year maxi-
mum sentence shows that Congress doesn’t think it as
serious as many other federal crimes. True (though not
entirely, since with each shipment a separate count,
consecutive sentencing can produce a very long sen-
tence). That is why Johnson’s sentence is much lower than
it would be had the deaths resulted from his sale of a
controlled substance; 21 U.S.C. § 841(b)(1)(B)(iii), for
example, imposes a mandatory minimum sentence of
20 years on someone who sells more than five grams of
crack, if death or serious injury results to a consumer of
the crack.
The defendant’s other arguments joust futilely with
the relative weight that the district judge placed on the
various sentencing factors in section 3553(a). Such quar-
rels do not establish the unreasonableness of a sentence.
The statute does not weight the factors. That is left to the
sentencing judge, within the bounds of reason, which are
wide. United States v. Bullion, supra, 466 F.3d at 577. John-
son’s crimes would have justified on grounds of both
retribution and deterrence an even longer sentence than
he received. The statutory maximum of 108 months
(9 years) would have been reasonable. The judge dis-
played lenity, not the reverse as Johnson argues.
A FFIRMED .

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6 No. 06-2156
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—12-13-06

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