                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 15-1390
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                  Juan A. Johnson

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                for the Western District of Missouri - Springfield
                                 ____________

                            Submitted: March 14, 2016
                              Filed: June 29, 2016
                                 ____________

Before WOLLMAN, BENTON, and SHEPHERD, Circuit Judges.
                         ____________

SHEPHERD, Circuit Judge.

       Juan Johnson appeals from a twenty-four month sentence imposed by the
district court1 following revocation of his supervised release. Johnson argues the
district court committed procedural error and the sentence is substantively

      1
      The Honorable M. Douglas Harpool, United States District Judge for the
Western District of Missouri.
unreasonable. He also appeals the district court’s refusal to recuse from the case and
attempts to bring a claim of ineffective assistance of counsel. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.

                                          I.

       Johnson pled guilty to wire fraud in violation of 18 U.S.C. §§ 1343 and 2 on
July 27, 2011. On February 10, 2012, Johnson was sentenced to time served,
followed by 3 years of supervised release, and was ordered to pay restitution in the
amount of $74,724.02. During 2012, Johnson repeatedly violated the terms of his
supervised release. His supervised release was again revoked on September 20, 2012,
but he was given credit for time served and placed on a new period of supervised
release for thirty months. Based on charges of domestic assault and assault on law
enforcement officers that occurred on December 26, 2012, the United States
Probation Office filed a violation report on December 27, 2012, and Johnson’s
supervised release was revoked for a third time that day. He was ultimately sentenced
to twenty-four months imprisonment on February 4, 2015. Johnson appeals from this
sentence.

       On December 12, 2014, Johnson wrote a letter to his federal public defender
and the court clerk, requesting new counsel and requesting the Honorable Brian C.
Wimes, United States District Judge for the Western District of Missouri, be
reassigned to his case. Johnson appeared in court for his final revocation hearing on
December 18, 2014 before the Honorable M. Douglas Harpool. Judge Harpool
inquired about Johnson’s pro se letter, and Johnson expressed his belief that Judge
Harpool was “prejudiced toward[] blacks.” When asked why he believed such a
prejudice existed, Johnson named one case and claimed other cases exemplified
prejudice but that he could not list them at that time. Johnson also testified that he
never consented to a reassignment of the case to a new judge despite the fact that, at
a hearing on December 12, 2014, his federal public defender claimed Johnson

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consented to such reassignment, causing him to no longer trust his attorney and to
believe he received ineffective assistance of counsel. Judge Harpool treated
Johnson’s pro se letter as a motion, and overruled Johnson’s motion for a change of
judge and attorney, but continued the proceedings until February 2015 to allow
Johnson the opportunity to file a new motion with details supporting his allegation
of prejudice on the part of Judge Harpool.

       Johnson did not file a subsequent motion in advance of the February 3, 2015
revocation hearing, which concerned violations of Johnson’s term of supervised
release prohibiting him from committing another federal, state, or local crime. Judge
Harpool heard testimony concerning two assaults, one against Springfield police
officers on December 26, 2012, and the other against Greene County Jail corrections
officers on February 5, 2014. The Springfield police officers testified that they
responded to a report of domestic violence at Johnson’s residence. When they
attempted to arrest Johnson, he began to resist very aggressively, attempted to run
away, pulled the officers into a bathroom, swung a toilet plunger at one officer, and
wrestled the officers into the living room. The officers used physical force, a taser,
and mace, but were unable to subdue Johnson until backup officers arrived. By the
time the officers successfully handcuffed Johnson, one officer suffered a hip injury
from falling onto the hardwood floor and required medical treatment.

        Johnson was incarcerated in the Greene County Jail following that arrest. An
officer from the Greene County Jail testified about an altercation that occurred there
on February 5, 2014. When the officer ordered Johnson to return to his cell, Johnson
first threatened to “beat” the officer, then inflicted an “open-handed blow” to the
officer as he refused to follow the officer’s instructions. Five or six additional
officers were required to subdue Johnson in the incident. At the revocation hearing,
the government also played a surveillance video of the February 5, 2014 jail incident.
Johnson’s attorney argued Johnson resisted the December 2012 arrest because
Johnson believed the arrest, based on probable cause rather than a warrant, was illegal

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and that his behavior during the February 2014 incident did not satisfy the elements
of assault. Johnson also made a statement denying the assaults. At the time of the
revocation hearing on February 3, 2015, state charges of domestic violence, resisting
arrest, and misdemeanor assault remained pending against Johnson.

       The district court found, under United States Sentencing Guidelines
(“U.S.S.G.”) § 7B1.1, that Johnson committed Grade B violations on December 26,
2012, and Grade C violations on February 5, 2014, and revoked his supervised
release. The district court noted that Johnson received a below-guidelines sentence
for the wire fraud conviction and received a sentence lower than recommended when
he violated the terms of supervised release on other occasions, then stated:

      So in the eyes of this Court, you’ve been given more benefits. And both
      times you immediately started violating your supervised release again
      and so apparently a below guideline sentence doesn’t work with you.
      Getting a break doesn’t help you, it just empowers you to continue to
      disregard the direction that you receive from the probation office and the
      direct officers of the City of Springfield and the corrections officers of
      Greene County. And while your race should in no way be relevant to
      the treatment you receive, nor should your race somehow empower you
      to some type of more favorable treatment, you should obey officers
      when they try to arrest you the same way anyone should. You should
      obey your corrections officers the way anyone should and you failed to
      do all of those things.

      Given Johnson’s criminal history, the range of imprisonment under the
guidelines is fifteen to twenty-one months for a Grade A violation, six to twelve
months for a Grade B violation, and four to ten months for a Grade C violation.
U.S.S.G. § 7B1.4. The district court imposed a sentence of twenty-four months
imprisonment with no supervised release to follow, and to run consecutive to any
sentence Johnson received as a result of his then-pending state court charges.



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                                          II.

       On appeal, Johnson asserts that the district court’s imposition of twenty-four
months imprisonment, consecutive to any state sentence, was procedurally
insufficient and substantively unreasonable because the district court did not
specifically recite the 18 U.S.C. § 3553(a) factors. “[A] sentence imposed upon
revocation of supervised release is not a new punishment but rather ‘relate[s] to the
original offense.’” United States v. Richey, 758 F.3d 999, 1001 (8th Cir. 2014)
(quoting Johnson v. United States, 529 U.S. 694, 701 (2000)). Thus, we review the
district court’s revocation sentencing decision “under the same ‘deferential-abuse-of-
discretion’ standard that applies to initial sentencing proceedings.” Id. (quoting
United States v. Young, 640 F.3d 846, 848 (8th Cir. 2011) (per curiam)). This
standard “requires us first to ‘ensure that the district court committed no significant
procedural error’ and second, if there is no procedural error, to ensure the sentence
was ‘substantively reasonable.’” Id. (quoting Gall v. United States, 552 U.S. 38, 51
(2007)). Such an abuse of discretion “occurs if a sentencing court ‘fails to consider
a relevant factor that should have received significant weight, gives significant weight
to an improper or irrelevant factor, or considers only the appropriate factors but
commits a clear error of judgment in weighing those factors.’” United States v.
Ceballos-Santa Cruz, 756 F.3d 635, 637 (8th Cir. 2014) (quoting United States v.
Watson, 480 F.3d 1175, 1177 (8th Cir. 2007)).

       The sentence imposed by the district court was both procedurally sufficient and
substantively reasonable. Johnson argues the district court was unclear as to what
grade of violation it found. Although the district court mentioned that the conduct
was close to a Grade A violation, it plainly stated “I find that the defendant has
committed B violations on December 26th and a C violation on . . . February 5th.”
Johnson’s further arguments concerning the grade of violation found by the district
court are foreclosed by this Court’s precedent, in which we have held that “a district
court may rely on a defendant’s actual conduct rather than the offense to which he

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pled guilty in classifying his supervised release violation under the sentencing
guidelines.” Ceballos-Santa Cruz, 756 F.3d at 637.

       In its decision to revoke a term of supervised release and impose a sentence of
imprisonment, the district court is to consider the factors set forth in 18 U.S.C.
§ 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5), (a)(6), and (a)(7). 18
U.S.C. § 3583(e). With respect to the district court’s consideration of the sentencing
factors, “[a] district court need not mechanically list every § 3553(a) consideration
when sentencing a defendant upon revocation of supervised release.” White Face,
383 F.3d at 740. If it is evident the district court was aware of the relevant factors in
imposing the sentence, we may affirm the sentence without specific findings on each
factor. United States v. Perkins, 526 F.3d 1107, 1110 (8th Cir. 2008). At the
revocation hearing, the district court reviewed the past sentences of imprisonment and
terms of supervised release imposed upon Johnson, then commented on the
sentences’ relative ineffectiveness in changing his behavior. The district court noted
Johnson’s repeated violations of the terms of his supervised release as well as
multiple occasions on which Johnson assaulted law enforcement officers.
Accordingly, we are satisfied that the district court properly considered Johnson’s
history, characteristics, and conduct, and affirm the procedural sufficiency of
Johnson’s sentence.

      A district court’s discretion to impose a prison sentence upon revocation of
supervised release is limited by 18 U.S.C. § 3583(e)(3) and we will not disturb a
sentence imposed under the statute absent an abuse of discretion. Perkins, 526 F.3d
at 1110. The district court correctly found, and the parties each agreed at the
revocation hearing, that the statutory maximum for Johnson’s original offense of wire
fraud was three years. See § 3583(b)(2), (e)(3). A twenty-four month revocation
sentence therefore does not exceed statutory limitations. Here, the district court
voiced well-founded concerns regarding Johnson’s multiple violation reports and
violence against law enforcement officers. In light of the goals of criminal sentencing

                                          -6-
and supervised release, as well as the circumstances underlying the case, we find the
sentence imposed was not substantively unreasonable.

       Johnson further argues that the district court abused its discretion when it
ordered the twenty-four month sentence to run consecutively to any state sentence
Johnson may receive. Guideline § 7B1.3(f) provides that “[a]ny term of
imprisonment imposed upon the revocation of probation or supervised release shall
be ordered to be served consecutively to any sentence of imprisonment that the
defendant is serving.” It is within the discretion of a district court to order that a
federal sentence run consecutively to a yet-to-be-imposed state sentence. Setser v.
United States, 132 S. Ct. 1463, 1468 (2012); United States v. Hall, No. 15-1405, 2016
WL 3144681, at *2 (8th Cir. June 6, 2016); United States v. Mayotte, 246 F.3d 797,
799 (8th Cir. 2001). Thus, the district court’s order that Johnson serve the federal
revocation sentence consecutive to a state sentence that had not yet been imposed
constitutes no abuse of discretion.

        Johnson also argues on appeal that the district court erred in failing to recuse
from the case and allow another judge to be assigned to the matter. “We review a
judge’s refusal to recuse for an abuse of discretion.” United States v. Oaks, 606 F.3d
530, 536 (8th Cir. 2010). Johnson’s pro se letter, dated December 12, 2014, was
insufficient to trigger the district court’s recusal. In order to afford Johnson the
opportunity to file an appropriate motion on the issue, the district court continued the
proceedings from December 16, 2014 until February 3, 2015, but Johnson failed to
file a subsequent motion or provide further details to support his allegation of bias or
prejudice by Judge Harpool on any basis, including race. Further, Johnson did not
file a legally sufficient affidavit, which is required to disqualify Judge Harpool from
his case. See 28 U.S.C. § 144; Holloway v. United States, 960 F.2d 1348, 1354-55
(8th Cir. 1992). Judge Harpool did not abuse his discretion in declining to recuse
himself from this case.



                                          -7-
        Finally, Johnson presents a claim of ineffective assistance of counsel, alleging
that his attorney acted unethically when he addressed the issue of the reassignment
of judges in Johnson’s case and failed to present adequate evidence or object at the
revocation hearing. However, this claim is not properly before this court as claims
of this nature should be brought under 28 U.S.C. § 2255. Only in “exceptional cases”
will this Court review claims of ineffective assistance of counsel on direct appeal.
United States v. Sanchez-Gonzalez, 643 F.3d 626, 628 (8th Cir. 2011) (internal
citations omitted). We consider a case to be an “exceptional case” if, after the
relevant factual record has been fully developed, a failure to examine the claim on
direct appeal would be a “plain miscarriage of justice,” or trial counsel’s alleged error
is “readily apparent” to this Court. Id. at 628-29 (citing United States v. Hubbard,
638 F.3d 866, 869-70 (8th Cir. 2011)). The fact that Johnson’s attorney agreed to the
reassignment of a judge without his consent does not rise to the level of an
“exceptional case.” Therefore, we decline to review this issue on direct appeal.

                                          III.

      For the foregoing reasons, we affirm Johnson’s sentence.
                      ______________________________




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