                                                    NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                    No. 10-2123


                        UNITED STATES OF AMERICA

                                         v.

                               KELLIE JOHNSON
                                        Appellant


                 On Appeal from the United States District Court
                      for the Eastern District of Pennsylvania
                      District Court No. 2:09-CR-00698-001
                District Judge: The Honorable C. Darnell Jones, II


                Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 July 14, 2010

            Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                               (Filed: July 14, 2010)


                                     OPINION


SMITH, Circuit Judge.

      Kellie Johnson was employed by the Department of Homeland Security as a

Transportation Security Officer at the Philadelphia International Airport. On October

                                         1
22, 2009, during an explosive trace detection screening conducted at a security

checkpoint, Johnson took a $100 bill from a passenger’s purse. The passenger

discovered the missing money and reported it. Johnson admitted that she had taken

the money, and she was charged with the misdemeanor of theft by a government

employee, in violation of 18 U.S.C. § 654. After pleading guilty in the United States

District Court for the Eastern District of Pennsylvania, Johnson was sentenced to “6

months (term of imprisonment to be served in a halfway house).”

      Johnson appealed.1     Instead of serving her sentence in a halfway house,

Johnson was incarcerated at the Philadelphia Federal Detention Center. She contends

that her sentence is procedurally and substantively unreasonable.2 In her view, there

are three procedural errors. First, she contends that the District Court erred because

the terminology used in imposing the sentence prevents the sentence of a six month

term in a halfway house from being fulfilled. Second, Johnson asserts that the Court

improperly applied the specific offense characteristic in USSG § 2B1.1(b)(3) for

“theft from the person of another,” thereby erroneously increasing her offense level



      1
         The District Court had jurisdiction under 18 U.S.C. § 3231. Appellate
jurisdiction exists pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291.
      2
         We review claims of procedural and substantive unreasonableness for an
abuse of discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en
banc). An abuse of discretion exists “if a district court based its decision on a
clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-
68.
                                          2
by two points. Her third assertion of error is that the Court’s factual finding that she

“compromis[ed] the safety of the nation’s travelers” is unsupported by the record.

      We agree that the sentence was subject to procedural error. The District Court

expressed its intent to sentence Johnson to six months imprisonment, but first

afforded defense counsel and Johnson an opportunity to speak. After hearing their

statements, the District Court declared “[n]ow, based upon the request of your

counsel and the acquiescence of counsel for the Government, I will allow this period

of imprisonment to be served in a halfway house, that [is] to be determined and

established by the Bureau of Prisons.” Immediately after explaining that Johnson

had a right to appeal her sentence, the District Court reiterated that the sentence was

to be served in a halfway house. Despite defense counsel’s request that the Court

impose a six month period of probation, with placement in a halfway house as a

condition of that probation, the Court decided to “leave the sentence as imposed.”

The District Judge directed his courtoom deputy to “conduct an investigation to make

sure that the sentence can be carried out as I’ve ... ordered it.” Consistent with the

Court’s oral decree, the judgment stated that the defendant was sentenced to “6

months (terms of imprisonment to be served in a halfway house).” Johnson, however,

is currently serving her sentence in a federal detention center. This is the result of a

procedural error by the District Court which “fail[ed] to adequately explain the

chosen sentence” of 6 months “to be served in a halfway house.” See Tomko, 562

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F.3d at 567 (citing the failure to adequately explain the chosen sentence as an

example of a procedural error). We will vacate the sentence and remand for

resentencing so the intent of the Court may be effectuated.

      Johnson also contends that the District Court erred by increasing her offense

level by two points for the specific offense characteristic in USSG § 2B1.1(b)(3). We

agree that this specific offense characteristic should not have been applied as the theft

did not occur within arms’ reach of the victim, and therefore did not present the

potential for violence or physical injury contemplated by that guideline. See United

States v. Pizarro-Berrios, 448 F.3d 1, 11 (1st Cir. 2006); United States v. Londono,

285 F.3d 348, 353-54 (5th Cir. 2002). Johnson did not object to this assessment

before the District Court, and we would normally require a showing of plain error

before granting relief. But because we have already determined that the sentence

must be vacated and the matter remanded for resentencing, we note this error so that

it does not recur during the sentencing process on remand.

      Johnson’s third claim of procedural error concerns the District Court’s

evaluation of the seriousness of her criminal offense. She contends that the factual

finding that she compromised the safety of the nation’s travelers is unsupported. We

agree. Our review of the record did not reveal any factual support for this finding.

      Because we have determined that the District Court committed procedural error

in sentencing Johnson, we will vacate her sentence and remand this matter for

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resentencing.3




      3
        Accordingly, we need not address Johnson’s claim that her sentence is
also substantively unreasonable.
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