16-493-cr
United States v. Johnson


                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 24th day of February, two thousand seventeen.

PRESENT: REENA RAGGI,
                 RAYMOND J. LOHIER, JR.,
                 CHRISTOPHER F. DRONEY,
                                 Circuit Judges.
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UNITED STATES OF AMERICA,
                                 Appellee,

                           v.                                               No. 16-493-cr

WHYKEE JOHNSON,
                                 Defendant-Appellant.
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FOR APPELLANT:                                    Yuanchung Lee, Of Counsel, Federal Defenders
                                                  of New York, Inc., Appeals Bureau, New York,
                                                  New York.

FOR APPELLEE:                                    Jessica K. Fender, Michael Ferrara, Assistant
                                                 United States Attorneys, for Preet Bharara,
                                                 United States Attorney for the Southern District
                                                 of New York, New York, New York.

          Appeal from a judgment of the United States District Court for the Southern

District of New York (Ronnie Abrams, Judge).

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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 11, 2016, is AFFIRMED.

       Defendant Whykee Johnson, who was convicted, based on his guilty plea, of

escaping from federal custody, see 18 U.S.C. §§ 751(a), 4082, appeals the resulting

27-month, within-Guidelines prison sentence, arguing that the district court committed

procedural error in ordering that sentence to run consecutively to an undischarged 2015

state sentence of 18 months to three years for possession of a firearm. In conducting our

review, we assume the parties’ familiarity with the facts and record of prior proceedings,

which we reference only as necessary to explain our decision to affirm.

       Where, as here, a defendant has not preserved a procedural challenge to his

sentence, we review for plain error. See United States v. Doe, 741 F.3d 359, 364 (2d

Cir. 2013); see also United States v. Marcus, 560 U.S. 258, 262 (2010) (stating that plain

error requires (1) error; (2) that is clear or obvious; (3) affecting defendant’s substantial

rights; and (4) seriously impugning fairness, integrity, or public reputation of judicial

proceedings).

       Johnson fails to demonstrate such error. A sentence is procedurally unreasonable

if the district court “fails to calculate (or improperly calculates) the Sentencing

Guidelines range, treats the Guidelines as mandatory, fails to consider the § 3553(a)

factors, selects a sentence based on clearly erroneous facts, or fails adequately to explain

the chosen sentence.” United States v. Chu, 714 F.3d 742, 746 (2d Cir. 2013) (internal

quotation marks omitted). Johnson argues that the district court relied on the wrong

provision of U.S.S.G. § 5G1.3 in imposing sentence. He contends that, because he was

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not sentenced to the undischarged state prison term until after his escape, the district

court erred in imposing a consecutive sentence pursuant to § 5G1.3(a), which states that,

“[i]f the instant offense was committed while the defendant was serving a term of

imprisonment . . . , the sentence for the instant offense shall be imposed to run

consecutively to the undischarged term of imprisonment.”             U.S.S.G. § 5G1.3(a)

(emphasis added). Johnson maintains that the applicable guideline is § 5G1.3(d), which

states that, “[i]n any other case involving an undischarged term of imprisonment, the

sentence for the instant offense may be imposed to run concurrently . . . or consecutively

to the prior undischarged term of imprisonment to achieve a reasonable punishment for

the instant offense,” thus providing the district court with more discretion.             Id.

§ 5G1.3(d) (emphasis added). Johnson argues that, had the district court recognized its

discretion to impose a concurrent sentence, there is a reasonable probability it would have

done so.

       The argument fails because, even if § 5G1.3(d) applied rather than § 5G1.3(a),

Johnson cannot show prejudice. See Keeling v. Hars, 809 F.3d 43, 54 (2d Cir. 2015)

(stating that, to show plain error affecting substantial rights, litigant must typically show

that error was prejudicial, i.e., it must have affected outcome of proceedings); see also

United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004) (requiring defendant to show

reasonable probability that, but for claimed error, result of proceeding would have been

different).1 First, the record shows that the district court understood that, after United


1
 Johnson’s argument, made for the first time in his reply brief, that Molina-Martinez v.
United States, 136 S. Ct. 1338 (2016), permits him to show plain error merely by

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States v. Booker, 543 U.S. 220 (2005), even seemingly mandatory Guidelines such as

§ 5G1.3(a) were only advisory.          See App’x 101 (“I am going to follow the

recommendation of United States Sentencing Guideline 5G1.3(a) and have that sentence

run consecutive to the undischarged terms of your other sentences.” (emphasis added)).

       Second, the district court rejected Johnson’s request for concurrent sentences

based on its own assessment of the circumstances of the case and not on any Guidelines

mandate. When defense counsel suggested that Johnson’s undischarged federal and

state prison terms were sufficient to punish the instant escape offense, the district court

interjected: “But that time is not for this crime. That time is for the underlying . . . felon

in possession case before Judge Kaplan. It’s for the felon in possession case in the state.

I mean, this is a separate crime for escape from federal custody.” Id. at 96. The court

continued:

       It’s not all in the same time period. I mean, the crime for which he was
       sentenced in 2013 occurred, what, in 2012? . . . And then he went to prison,

pointing to an incorrect Guidelines application is waived. See Bishop v. Wells Fargo &
Co., 823 F.3d 35, 50 (2d Cir. 2016). In any event, Molina-Martinez held only that a
defendant need not show additional evidence of prejudice beyond the invocation of an
incorrect Guidelines range in all cases. See 136 S. Ct. at 1346. Compare id. (“There
may be instances when, despite application of an erroneous Guidelines range, a
reasonable probability of prejudice does not exist,” such as when “[t]he record . . .
show[s], for example, that the district court thought the sentence it chose was appropriate
irrespective of the Guidelines range.”), with id. at 1347 (“Where, however, the record is
silent as to what the district court might have done had it considered the correct
Guidelines range, the court’s reliance on an incorrect range in most instances will suffice
to show an effect on the defendant’s substantial rights.”). Here, there is no asserted
error in the Guidelines range, but rather in the application of a guideline whose
mandatory consecutive sentence was rendered advisory by United States v. Booker, 543
U.S. 220 (2005). Moreover, it is clear, for the reasons enunciated below, that the district
court believed that running the escape sentence consecutively to the state sentence was
appropriate regardless of which subsection of § 5G1.3 formally applied.

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       and he was put in the halfway house, and what did he do? He tried to
       bribe someone who worked in the halfway house, escape from federal
       custody when he didn’t get what he wanted, and then went and committed a
       separate crime, and that’s three years after another gun charge, three years
       after the prior one. So it’s not as if it’s all from the same conduct. It’s
       different conduct at different times.

Id. at 96–97.

       Thus, the sentencing record convincingly shows that, whether the applicable

guideline was § 5G1.3(a) or § 5G1.3(d), the district court knew that it was within its

discretion to impose a consecutive or concurrent sentence and that it did not think the

circumstances of Johnson’s crime of conviction warranted the latter. See id. at 100–01

(“You escape from federal custody, and you commit another crime, another gun crime.

. . . This is now your eighth criminal conviction.”).

       Further, after stating that the sentence in this case would run consecutively to the

undischarged terms of Johnson’s other sentences, the district court specifically found, as

it was required to do, that “this sentence is sufficient but no greater than necessary to

comply with the purposes of sentencing set forth in the law in 3553(a).” Id. at 101.

Indeed, it rejected a defense application to reduce Johnson’s sentence by the six months

he had been detained pending sentence in this case—time that would be credited toward

Johnson’s state sentence—further indicating that its imposition of a consecutive sentence

was an exercise of the court’s discretion, not procedural error in construing § 5G1.3(a) as

mandatory. Thus, there was no plain error.




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      Having considered Johnson’s remaining arguments and concluding that they are

without merit, we AFFIRM the judgment of the district court.

                                        FOR THE COURT:
                                        Catherine O’Hagan Wolfe, Clerk of Court




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