           Case: 17-12577   Date Filed: 12/15/2017   Page: 1 of 13


                                                                      [PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-12577
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 9:95-cr-08069-DTKH-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus


ANTHONY TYRONE JOHNSON,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                            (December 15, 2017)

Before TJOFLAT, HULL and JULIE CARNES, Circuit Judges.

PER CURIAM:
               Case: 17-12577      Date Filed: 12/15/2017      Page: 2 of 13


       Anthony Tyrone Johnson appeals the denial of his 18 U.S.C. § 3583(e)(1)

motion for early termination of supervised release. He contends that the District

Court abused its discretion by summarily denying his motion without explanation.

Section 3583(e)(1) requires courts to consider several § 3553(a) sentencing factors

when terminating a term of supervised release. The issue before us is whether, and

the extent to which, a district court must indicate or explain its consideration of the

relevant § 3553(a) factors when denying a § 3583(e)(1) motion.

       Because a defendant may appeal a court’s decision to deny him early

termination of supervised release, and because appellate review must be

meaningful, we hold that a district court’s order, in light of the record, must

demonstrate that the pertinent factors were taken into account. This mirrors our 18

U.S.C. § 3582(c)(2)1 precedent on the matter. See United States v. Douglas, 576

F.3d 1216, 1219 (11th Cir. 2009). Here, nothing in the record or in the District

Court’s order show that it considered the required § 3553(a) factors. We therefore

vacate its decision and remand the case for further consideration and explanation.

                                              I.

       In 1995, Anthony Tyrone Johnson was charged in a one-count indictment

with being a convicted felon in unlawful possession of a firearm, in violation of 18

       1
        Section 3582(c)(2) allows courts to reduce a defendant’s term of imprisonment if the
Sentencing Commission subsequently lowers the relevant sentencing range. When determining
whether to reduce a sentence, the court must consider the applicable § 3553(a) factors and
Sentencing Commission policy statements. 18 U.S.C. § 3582(c)(2).
                                              2
                Case: 17-12577       Date Filed: 12/15/2017       Page: 3 of 13


U.S.C. §§ 922(g) and 924(a)(2). This was after Johnson, having found out his

brother was murdered, reacted by shooting a rifle in the direction of two women

and two children. 2 The charge was tried to a jury in March 1997, and it found him

guilty. Although the maximum statutory penalty for Johnson’s offense was ten

years’ imprisonment, some of his prior criminal history—two 1987 manslaughter

convictions and a 1990 conviction of possession of cocaine with intent to sell 3—

subjected him to the Armed Career Criminal Act (“ACCA”), which contains a

fifteen-year mandatory minimum and a statutory maximum of life imprisonment.

See id. § 924(e). The applicable guidelines range was 262 to 327 months of

imprisonment. After voicing concern about Johnson’s “extraordinary” criminal

history and violent propensities, the District Court sentenced Johnson to 327

months’ imprisonment, to be followed by five years’ supervised release.

       Johnson appealed, challenging the sufficiency of the evidence supporting his

conviction and the Court’s lack of findings in support of his sentence. This Court

affirmed the conviction and sentence. United States v. Johnson, 252 F.3d 438

(11th Cir. 2001) (unpublished table decision).

       2
           At Johnson’s sentencing hearing, the Court stated that “it was really never clear . . .
whether [Johnson was] trying to shoot those people or just inflict some injury on [their] home
itself or a home nearby.” The women’s connection to the murder of Johnson’s brother was also
unclear. The Court stated that “at most maybe they were related somehow to some of the people
involved in the shooting of [Johnson’s] brother.”
       3
         Other prior convictions not contributing to Johnson’s status under the ACCA include
attempted burglary in 1985, burglary/forced entry into a nonresidence in 1987, battery in 1991,
grand theft in 1991, and fleeing or attempting to elude police in 1991.
                                                3
                  Case: 17-12577       Date Filed: 12/15/2017       Page: 4 of 13


       In April 2016, Johnson returned to the District Court 4 and filed an

unopposed emergency motion under 28 U.S.C. § 2255 to vacate his sentence and

for immediate release from custody. Johnson argued that under Johnson v. United

States, --- U.S. ----, 135 S. Ct. 2551 (2015), which held the ACCA’s “residual

clause” in 18 U.S.C. § 924(e)(2)(B)(ii) unconstitutionally void for vagueness, his

enhanced sentence constituted a due process violation. 5 The statutory maximum of

his 1997 firearm conviction was thus ten years, and he had already served twenty-

one. In a report and recommendation, the Magistrate Judge suggested that the

District Court grant the motion. The Court adopted the report and

recommendation, but also ordered that a probation officer be assigned to Johnson

and that he commence a three-year period of supervised release. The Court’s order

provided no reasons for the supervised release.

       A year later, Johnson moved for early termination of his supervised release

under 18 U.S.C. § 3583(e)(1). 6 Section 3583(e)(1) allows district courts to

terminate the remainder of a defendant’s term of supervised release once the

defendant has completed a year, and provides a number of § 3553(a) sentencing




       4
           Johnson returned to the judge that conducted his 1997 trial and imposed his sentence.
       5
        Specifically, Johnson’s two manslaughter convictions that served as ACCA predicates
no longer qualified under the ACCA’s residual clause.
       6
           Johnson again returned to judge that handled his trial, sentencing, and § 2255 motion.
                                                  4
                 Case: 17-12577        Date Filed: 12/15/2017         Page: 5 of 13


factors to be considered in making this determination. 7 Johnson filed a brief in

support of his motion, contending that early termination of his supervised release

was in the interest of justice, as he had served eleven years of unnecessary prison

time—twenty-one years on a ten-year sentence. He added that he was employed

full-time at a construction company, went to church and Bible study, volunteered

helping at-risk youth, and that his probation officer would not oppose early

termination of his supervised release. Without requesting a Government response,

the District Court denied Johnson’s motion in a paperless entry on the docket,

reading in its entirety: “ORDER denying Defendant (1) Anthony Tyrone Johnson’s

[] Motion for Early Termination of Supervised Release. Signed by Senior Judge

Daniel T.K. Hurley on 6/2/2017.” The order provided no explanation whatsoever

for the Court’s decision. Johnson appealed.




       7
           Section 3583(e)(1) provides:
       The court may, after considering the factors set forth in section 3553(a)(1),
       (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7) . . . terminate a term
       of supervised release and discharge the defendant released at any time after the
       expiration of one year of supervised release . . . if it is satisfied that such action is
       warranted by the conduct of the defendant released and the interest of justice.
The cited § 3553(a) factors require consideration of the nature and circumstances of the offense
and the history and characteristics of the defendant; the need for deterrence, for public protection
from further crimes of the defendant, and for correctional treatment for the defendant; the
guidelines range; the Sentencing Commission’s policy statements; the need to avoid unwarranted
sentencing disparities; and the need to provide restitution to any victims of the offense. 18
U.S.C. § 3553(a)(1), (a)(2)(B)–(D), (a)(4)–(7).
                                                   5
              Case: 17-12577     Date Filed: 12/15/2017     Page: 6 of 13


                                          II.

      On appeal, Johnson does not necessarily contend that the District Court

should have granted his motion. Rather, he claims that there must be some

indication—from the District Court’s order or the record—that the Court

considered the enumerated § 3553(a) factors in making its decision. Here, he

argues, neither the Court’s summary denial nor the record was sufficient to show

that such consideration took place. The Court’s denial was thus an abuse of

discretion and its judgment must be vacated and the case remanded. We agree.

                                          A.

      First, however, we briefly address the threshold issue of whether

§ 3583(e)(1) requires courts to consider the relevant § 3553(a) factors at all when

denying a motion for early termination of supervised release. The Government

contends that the factors must be consulted only when choosing to terminate

supervised release early—not when denying a defendant’s request. For this, the

Government points to the provision’s opening line: “The court may, after

considering the [relevant § 3553(a) factors,] . . . terminate a term of supervised

release . . . .” 18 U.S.C. § 3583(e)(1) (emphasis added).

      Under the Government’s reading, the provision would require courts to

consider the factors only when deciding affirmatively to terminate supervised

release early. This raises the question of how, other than consulting the factors,


                                          6
                Case: 17-12577        Date Filed: 12/15/2017        Page: 7 of 13


courts are supposed to determine when to deny relief under the provision. Or why,

when denying relief only, they are allowed to turn a blind eye to them. It is

sufficiently implicit in the provision that the factors are to be considered whether a

court grants or denies a § 3583(e)(1) motion. This conclusion is further supported

by numerous unpublished opinions in this Circuit8 and by several decisions of our

sister circuits.9

       With it established that courts must consider the specified § 3553(a) factors

when denying § 3583(e)(1) motions, we now explain why, in denying these

motions, they must indicate that the factors were actually considered.

                                                 B.

                                                 1.

       We review a district court’s denial of a motion for early termination of

supervised release for an abuse of discretion. See United States v. Trailer, 827

F.3d 933, 938 (11th Cir. 2016). “[R]eview under an abuse of discretion standard,”

however, “is not simply a rubber stamp.” United States v. Docampo, 573 F.3d

1091, 1104 (11th Cir. 2009). A court must explain its sentencing decisions

       8
        See, e.g., United States v. Boyd, 606 F. App’x 953 (11th Cir. 2015); United States v. Fu
Qian Danny Pan, 540 F. App’x 945 (11th Cir. 2013); United States v. Keshishian, 507 F. App’x
913 (11th Cir. 2013).
       9
          See United States v. Mathis-Gardner, 783 F.3d 1286, 1287–88 (D.C. Cir. 2015)
(holding that the specified § 3553(a) factors must be considered when denying a § 3583(e)(1)
motion and noting that “at least six circuits” have “held or strongly implied” the same). Five
circuits have addressed the different question, discussed in part II.B.1., of whether, and the extent
to which, courts must indicate or explain their consideration of the factors. See infra note 10.
                                                 7
              Case: 17-12577     Date Filed: 12/15/2017   Page: 8 of 13


adequately enough to allow for meaningful appellate review. Gall v. United States,

552 U.S. 38, 50, 128 S. Ct. 586, 597 (2007). Else, it abuses it discretion. Id. at 51,

128 S. Ct. at 597. This principle applies not only when a court imposes a sentence,

but also when it determines whether or not to reduce a defendant’s sentence. See

Douglas, 576 F.3d at 1219.

      For instance, when ruling on a 18 U.S.C. § 3582(c)(2) motion—which gives

courts discretion to reduce a defendant’s sentence if the Sentencing Commission

subsequently lowers the relevant sentencing range—a court must demonstrate that

it has considered the § 3553(a) factors. Douglas, 576 F.3d at 1219. It need not

“articulate the applicability of each factor,” but the record must show “that the

pertinent factors were taken into account.” Id. And there must be enough, in the

record or the court’s order, to allow for meaningful appellate review of its decision.

See id. at 1220.

      So too here. Early termination of supervised release is sufficiently

analogous to a § 3582(c)(2) sentence reduction to warrant the same requirement.

Both provisions contain a similar scheme. First, a defendant must be statutorily

eligible. Under § 3582(c)(2), the Sentencing Commission must have lowered the

relevant sentencing range, while § 3583(e)(1) requires the defendant to have

completed a year of supervised release. Then, the court determines whether, in its




                                          8
               Case: 17-12577       Date Filed: 12/15/2017      Page: 9 of 13


discretion, relief should be granted. Both provisions require that a number of

§ 3553(a) factors be considered in making this determination.

       Further, this Court has recognized that a defendant is “not without recourse”

if he is denied early termination of supervised release precisely because “he may

appeal the district court’s denial” of such relief. Trailer, 827 F.3d at 938.

Appellate review as “recourse” implies meaningful review, which in turn requires

the reasons for the district court’s decision to be sufficiently apparent. This line of

logic also accounts for our § 3582(c)(2) standard, see Douglas, 576 F.3d at 1219–

20, substantiating further its applicability here, to a § 3583(e)(1) decision.

       We accordingly conclude that for a § 3583(e)(1) motion to be properly

denied, the court’s order, in light of the record, must indicate that the court

considered the factors enumerated in the provision. Cf. id. at 1219. We join a

number of our sister circuits in so holding.10 The sentencing court need not explain

each factor’s applicability, nor always explicitly articulate that it considered the

factors. 11 There may be, for example, instances where an explanation for its


       10
          See United States v. Mathis-Gardner, 783 F.3d 1286, 1288–89 (D.C. Cir. 2015);
United States v. Emmett, 749 F.3d 817, 820–21 (9th Cir. 2014); United States v. Lowe, 632 F.3d
996, 998 (7th Cir. 2011); United States v. Gammarano, 321 F.3d 311, 315 (2d Cir. 2003). But
see United States v. Mosby, 719 F.3d 925, 930 (8th Cir. 2013) (“Neither 18 U.S.C. § 3583(e) nor
relevant case law required the district court to explain its denial of early termination of
supervised release.”).
       11
          Cf. Douglas, 576 F.3d at 1219; United States v. Dorman, 488 F.3d 936, 944 (11th Cir.
2007) (holding a sentence procedurally reasonable, despite the sentencing court failing to
expressly mention that it considered the § 3553(a) factors, because consideration could be
derived from its rulings on the defendant’s objections and downward-departure motion).
                                               9
               Case: 17-12577        Date Filed: 12/15/2017       Page: 10 of 13


decision “was provided when denying a previous motion and no new facts were

presented in a subsequent request,” or “[w]here clear and compelling reasons to

deny relief leap out from the record.” United States v. Mathis-Gardner, 783 F.3d

1286, 1289 (D.C. Cir. 2015). But where the order is deficient in explanation, the

record must clearly imply that the relevant factors were considered—enough so

that meaningful appellate review of the factors’ application can take place, rather

than speculation of whether they were taken into account in the first place.

                                                2.

       We turn now to whether, in light of the record, the District Court’s paperless

order on the docket stating only that Johnson’s motion was denied was sufficient to

meet the standard above. Because the Court’s order articulated nothing other than

that Johnson’s motion was denied, any indication that the § 3553(a) factors were

considered must come implicitly from the record.

       To this point, the Government notes that the Court presided over Johnson’s

1997 trial. 12 As apparent from the sentencing hearing transcript, it knew of the

nature of the events leading to Johnson’s 1997 conviction and of his extensive

criminal history. 13 This knowledge, the Government argues, implicitly informed



       12
           That is, the judge that denied Johnson’s § 3583(e)(1) motion also conducted his 1997
trial and sentencing.
       13
          The Government also notes that the Court knew of Johnson’s previous probation
violations. At Johnson’s sentencing hearing, his probation officer testified briefly about one
                                                10
              Case: 17-12577       Date Filed: 12/15/2017      Page: 11 of 13


the Court’s decision to deny Johnson’s § 3583(e)(1) motion twenty years later.

Further, Johnson filed a brief in support of his motion, which described his

exemplary conduct since being released. So the Court likely considered that too.

The Government thus contends that, in aggregation, the record implies that the

Court adequately considered the relevant § 3553(a) factors.

       Presiding over a defendant’s trial acquaints the sentencing judge with a

wealth of information relevant to the § 3553(a) factors. To be sure, this might

support an inference that these factors were considered, despite a summary order,

when the judge later rules on the defendant’s § 3583(e)(1) motion. But we will not

stretch this inference to cover our situation, where Johnson’s motion came twenty

years after his trial. The Court does not anywhere indicate that it looked back at

Johnson’s trial or sentencing record. And further, the violent conduct and prior

convictions that concerned it at Johnson’s 1997 sentencing are now between

twenty and thirty years old. Their impact on the Court’s decisionmaking could

certainly have diminished with the passage of time. Without any indication from

the Court, it would be unacceptable speculation to impart sentencing

considerations from 1997 to this case.




probation violation in 1991 and another in 1992. The Court, however, did not mention the
probation violations when explaining its rationale for Johnson’s sentence.
                                              11
             Case: 17-12577      Date Filed: 12/15/2017    Page: 12 of 13


      This Court illustrated this principle in Broadwater v. United States, 292 F.3d

1302 (11th Cir. 2002). There, the petitioner challenged his conviction and

sentence under 28 U.S.C. § 2255, raising six instances in which his counsel

provided allegedly ineffective assistance. The District Court summarily denied the

motion. We vacated and remanded so that the Court could give further explanation

in order to “provide . . . a sufficient basis for [appellate] review.” Id. at 1303

(internal quotation marks omitted). In holding that meaningful review was

impossible, we noted the following:

      We are mindful of the fact that the same judge who denied this § 2255
      motion [in 2000] also conducted the several-day trial of the case in
      1997, and that some situations may be resolved by the district court’s
      personal knowledge or recollection. When that is not revealed in the
      order, however, there is no way for an appellate court to review the
      accuracy of that recollection or whether that is sufficient upon which
      to base a denial of relief. Here, we cannot tell whether the district
      court’s ruling was premised upon its review of the files, records, and
      transcripts of the proceedings, or in whole or in part upon its own
      recollection of events.

Id. at 1304 (citation omitted). We refused to assume that the District Court’s

experience conducting the defendant’s trial provided adequate foundation to

summarily deny the defendant’s postconviction motion three years later. Although

arising in a different context, Broadwater’s principle sufficiently applies to

Johnson’s case. Without indication, we cannot assume that the District Court’s

sentencing considerations twenty years ago buttressed its denial of Johnson’s



                                           12
              Case: 17-12577       Date Filed: 12/15/2017      Page: 13 of 13


motion.14 Therefore, without a basis for the District Court’s decision, we cannot

meaningfully review it.

       Moreover, Johnson filing a brief in support of his motion does not

necessarily mean that, by reviewing and then denying the motion, the Court

considered the required factors. Johnson’s brief made no mention of the relevant

§ 3553(a) factors, and the Government was not ordered to respond. Affirming the

District Court’s decision in the instant case would promote post hoc rationalization

of sentencing decisions, not meaningful review.

                                             III.

       Neither the District Court’s summary order nor the record indicate the basis

for the Court’s denial of Johnson’s § 3583(e)(1) motion. We “cannot just

reflexively presume that the learned judge appropriately exercised his discretion

and considered all of the relevant factors, because that would risk turning abuse of

discretion review into merely a ‘rubber stamp.’” Mathis-Gardner, 783 F.3d at

1288–89; see also Docampo, 573 F.3d at 1104 (“[R]eview under an abuse of

discretion standard is not simply a rubber stamp.”). The District Court’s denial

therefore constitutes an abuse of discretion. We vacate its decision and remand

this case for further consideration and explanation.

       VACATED AND REMANDED.

       14
         This does not mean that such an inference can never be made, only that no such
inference is appropriate given the twenty-year passage of time here.
                                              13
