Petition for Writ of Certiorari — James Johnman, Jr., Petitioner v. United States

Supreme Court briefJun 16, 2020

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NO:____________________

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2020

JAMES JOHNMAN, JR.,

Petitioner,

UNITED STATES OF AMERICA

Respondent.

____________________________________________________________

On Petition for A Writ of Certiorari

To the United States Court of Appeals

For the Third Circuit

____________________________________________________________

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

___________________________________________________________

Alison Brill, Esq.

Assistant Federal Public Defender

Office of the Federal Public Defender

22 South Clinton Avenue

Station Plaza #4, Fourth Floor

Trenton, New Jersey 08609

(609) 489-7457

alison_brill@fd.org

Attorney for Petitioner

James Johnman, Jr.

TABLE OF CONTENTS

Opinion affirming sentence, United States v. James Johnman, Jr.,

948 F.3d 612 (3d Cir. Jan. 28, 2020).………………………………………………….1

Opinion vacating special assessment, United States v. Paul Haverkamp,

958 F.3d 145 (2d Cir. May 4, 2020).…………………………………………………...8

United States v. Johnman, 948 F.3d 612 (2020)

948 F.3d 612

United States Court of Appeals, Third Circuit.

Before: KRAUSE, MATEY, and RENDELL, Circuit

Judges.

UNITED STATES of America

James JOHNMAN, Jr., Appellant

No. 18-2048

Argued September 17, 2019

(Filed: January 28, 2020)

OPINION

MATEY, Circuit Judge.

Synopsis

Background: Defendant was convicted, on guilty plea

entered in the United States District Court for the Eastern

District of Pennsylvania, No. 2-17-cr-00245-001, Wendy

Beetlestone, J., of offenses involving the sexual

exploitation of children and child pornography, and he

appealed from special monetary assessments imposed by

the court under the Justice for Victims of Trafficking Act

(JVTA).

The Court of Appeals, Matey, Circuit Judge, held that

section of the JVTA, providing for imposition of special

monetary assessments on defendants “convicted of an

offense” under certain enumerated chapters of the

criminal code, had to be interpreted to require imposition

of such assessments on a “per count” basis.

Affirmed.

Procedural Posture(s): Appellate Review.

*614 On Appeal from the United States District Court for

the Eastern District of Pennsylvania (D.C. No.

2-17-cr-00245-001) District Judge: Honorable Wendy

Beetlestone

Attorneys and Law Firms

Alison Brill (Argued) Office of the Federal Public

Defender 22 South Clinton Avenue Station Plaza #4, 4th

Floor Trenton, New Jersey 08609, Counsel for Appellant

William M. McSwain Priya Desouza Nancy Rue Robert

A. Zauzmer (Argued) Office of the United States

Attorney 615 Chestnut Street Suite 1250 Philadelphia,

Pennsylvania 19106, Counsel for Appellee

The Justice for Victims of Trafficking Act (JVTA),

U.S.C. § 3014, requires a special monetary assessment

from all persons “convicted of an offense” under certain

federal laws. James Johnman, Jr. was convicted under

three of those laws and ordered to pay $5,000 for each

conviction, $15,000 in total. That, in Johnman’s view, is

too high. He argues the JVTA should be read to impose

only one assessment per case, not one assessment per

count of qualifying conviction. Using standard tools of

statutory interpretation, we conclude the JVTA’s

assessment applies to each conviction. So we will affirm

the sentence set by the District Court.

*615 I. BACKGROUND

Johnman signed a plea agreement with the United States

admitting to three offenses involving the exploitation of

children: use of an interstate facility to entice a minor to

engage in sexual conduct, in violation of 18 U.S.C. §

2422(b) (Count One); distribution of child pornography,

18 U.S.C. § 2252(a)(2) (Count Two);

in violation of

and possession of child pornography, in violation of

18 U.S.C. § 2252(a)(4) (Count Three). And the plea

agreement provides a helpful roadmap to frame the issue

in this appeal. First, each count—and the corresponding

maximum

penalty—appears

individual

subparagraph of the agreement. There, together with the

term of imprisonment, supervised release, and other

monetary penalties faced, each subparagraph reads, “and

18 U.S.C. §

a $5,000 special victims assessment under

3014.” (App. at 15–16.) Second, for clarity, a separate

subparagraph aggregates all the maximum and mandatory

minimum penalties in the three counts, including “an

United States v. Johnman, 948 F.3d 612 (2020)

additional $15,000 special victims assessment under

18 U.S.C. § 3014.” (App. at 16.) Third, yet another

provision of the agreement stipulates that “[Johnman]

agrees to pay the special victims and court assessments in

the amount of $15,300 before the time of sentencing or at

a time directed by this Court.”1 (App. at 17.) And for good

measure, the District Court explained the $15,000

assessment at Johnman’s plea hearing. Johnman offered

no objections to any of these terms.

Finding the agreement satisfactory, the District Court

sentenced Johnman to 368 months of incarceration, a

lifetime of supervised release, $1,000 restitution, and

$15,300 in special assessments. After the entry of

judgment, Johnman filed a notice of appeal. The plea

agreement states Johnman waives his right to appeal or

collaterally attack his convictions or sentence. (App. at

20.) But it does permit an appeal if “the defendant’s

sentence on any count of conviction exceeds the statutory

maximum for that count.” (App. at 21.)

The United States moved to enforce the appellate waiver

and for summary affirmance. A motions panel of this

Court directed Johnman to address “whether the District

Court’s imposition of a $15,000 special assessment under

18 U.S.C. §

the Justice for Victims of Trafficking Act,

3014, was erroneous.” (Order Dated Jan. 30, 2019.) We

now answer that question, concluding it was not.

II. JURISDICTION AND THE STANDARD OF

REVIEW

The District Court had subject matter jurisdiction under

18 U.S.C. § 3231 and we have jurisdiction under

U.S.C. § 3742(a) and 28 U.S.C. § 1291. The waiver in

Johnman’s plea agreement does not preclude our review

because it allows him to challenge a sentence that exceeds

the statutory maximum created by Congress. And in any

event, the parties cannot bargain for an illegal sentence.

See Baker v. Barbo, 177 F.3d 149, 155 (3d Cir. 1999).

Since Johnman failed to object to his sentence before the

District Court, we review only for plain error. See Fed. R.

Johnson v. United States, 520 U.S.

Crim. P. 52(b);

461, 466–67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997).

This means “we must decide whether (1) an error

occurred, (2) the error is ‘plain,’ and (3) it ‘affect[s]

United States v. Payano, 930

substantial rights.’ ”

F.3d 186, 192 (3d Cir. 2019) (alteration in original)

*616 United States v. Olano, 507 U.S. 725,

(quoting

732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We need

only consider the first prong, as no error occurred.

III. THE JUSTICE FOR VICTIMS OF

TRAFFICKING ACT REQUIRES A $5,000

ASSESSMENT FOR EACH CONVICTION

Congress has repeatedly passed legislation channeling

proceeds collected from child sexual abusers to programs

supporting victims. Most notably, in 1984, Congress

created a mandatory special monetary assessment to fund

the Crime Victims Fund. Victims of Crime Act of 1984,

Pub. L. No. 98-473, § 1402, 98 Stat. 2170, 2170–71

34 U.S.C. § 20101). Under

(codified as amended at

that Act, “[t]he court shall assess on any person convicted

of an offense against the United States” an amount tied to

the severity of the offense. Id. § 1405, 98 Stat. at 2174–75

(codified as amended at 18 U.S.C. § 3013). The monies

deposited into the Fund flow to eligible crime victim

34 U.S.C. §

grant programs and antiterrorism efforts.

20101. Not surprisingly, questions about the meaning of

the phrase “convicted of an offense” in § 3013 arose long

ago. And some three decades back, we held that § 3013

requires one assessment per count of conviction. See

United States v. Donaldson, 797 F.2d 125, 128 (3d Cir.

1986). In quick succession, the Supreme Court and

several circuits reached the same conclusion, and the

meaning of § 3013 was soon settled.2

In 2015, Congress established the Domestic Trafficking

Victims’ Fund and, to provide financial support, created

another special monetary assessment applicable to certain

crimes involving human trafficking and child

exploitation. Pub. L. No. 114-22, § 101, 129 Stat. 227,

18 U.S.C. § 3014).

228–30 (codified as amended at

Those monies are then used to fund eligible trafficking

18 U.S.C.

victim and child abuse assistance programs.

§ 3014. And relevant here, Congress used nearly identical

§ 3014 as it had in enacting § 3013.

language in

A. The Language of

§ 3014

With that grounding, “[a]s in any statutory construction

United States v. Johnman, 948 F.3d 612 (2020)

case, ‘[w]e start, of course, with the statutory text.’ ”

Sebelius v. Cloer, 569 U.S. 369, 376, 133 S.Ct. 1886,

185 L.Ed.2d 1003 (2013) (second alteration in original)

BP Am. Prod. Co. v. Burton, 549 U.S. 84, 91,

(quoting

127 S.Ct. 638, 166 L.Ed.2d 494 (2006)). The text of

3014(a) reads:

In general.—Beginning on the date of enactment of the

Justice for Victims of Trafficking Act of 2015 and

ending on September 30, 2021, in addition to the

assessment imposed under section 3013, the court shall

assess an amount of $5,000 on any non-indigent person

or entity convicted of an offense under—

(1) chapter 77 (relating to peonage, slavery, and

trafficking in persons);

(2) chapter 109A (relating to sexual abuse);

(3) chapter 110 (relating to sexual exploitation and

other abuse of children);

*617 (4) chapter 117 (relating to transportation for

illegal sexual activity and related crimes); or

(5) section 274 of the Immigration and Nationality Act

8 U.S.C. 1324) (relating to human smuggling),

(

unless the person induced, assisted, abetted, or aided

only an individual who at the time of such action was

the alien’s spouse, parent, son, or daughter (and no

other individual) to enter the United States in violation

of law.

“As usual, our job is to interpret the words consistent with

their ‘ordinary meaning ... at the time Congress enacted

the statute.’ ” Wis. Cent. Ltd. v. United States, ––– U.S.

––––, 138 S. Ct. 2067, 2070, 201 L.Ed.2d 490 (2018)

Perrin v. United

(alteration in original) (quoting

States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199

(1979)). Broken down for ease, subsection (a) requires

that courts (1) assess (2) an amount of $5,000 (3) on any

non-exempt person or entity (4) convicted of an offense

(5) under certain enumerated chapters of the criminal

code. Thus, how many assessments a court must impose

turns on the meaning of the phrase “convicted of an

offense” in the subsection. We examine the ordinary

meaning of those words individually and in context.

First, an “offense” is “a crime,” a “violation of the law.”

Offense, Black’s Law Dictionary (10th ed. 2014); accord

Offense, New Oxford American Dictionary (3d ed. 2010)

(“a breach of a law or rule; an illegal act”). Giving this

word its ordinary meaning, “offense” is best read to refer

to a discrete criminal act. “Convicted,” in turn, is the past

participle of “convict,” which means “to find or declare

guilty of an offense or crime[.]” Convict, Webster’s Third

New International Dictionary (3d ed. 1993) (emphasis

added); accord Convict, Black’s Law Dictionary (10th ed.

2014) (“to find (a person) guilty of a criminal offense”).

So “convicted” as normally understood is an

offense-specific term. Combining these terms, a defendant

like Johnman who pleads guilty to three counts has been

“convicted” of three separate “offense[s]”—or, put

another way, has three times been “convicted of an

offense.” And for every conviction, the sentencing court

18 U.S.C. §

“shall assess an amount of $5,000.”

3014(a).

Second,

the

statute

uses

the

singular

construction—“convicted of an offense.” Id. (emphasis

added). As the First Circuit has noted, Congress’s use of

the singular “an offense” is best read to mean that “each

offense” requires a separate assessment, no matter how

many convictions. See Luongo, 11 F.3d at 10. The most

natural reading of the phrase “convicted of an offense”

means an assessment imposed on each qualifying

conviction.

Third, the balance of the statute confirms the ordinary

reading of subsection (a). Other references to the

§ 3014 take three forms: (1)

assessment in the rest of

“[a]n assessment under subsection (a)”;3 (2) “[t]he amount

assessed under subsection (a)”;4 and (3) “the obligation to

pay an assessment imposed on or after the date of

enactment[.]”5 All three add even more clarity to the best

reading of subsection (a).

Start with subsection (b):

(b)

Satisfaction

other

court-ordered

obligations.—An

assessment under subsection (a)

shall not be payable until the

person subject to the assessment

has satisfied all outstanding

court-ordered fines, orders of

restitution, and any other *618

obligation

victim-compensation arising from

the criminal convictions on which

the special assessment is based.

18 U.S.C. § 3014(b) (emphasis added).

United States v. Johnman, 948 F.3d 612 (2020)

Congress’s use of indefinite and definite articles when

referencing the special assessment is telling. That is

because “ ‘[w]ords are to be given the meaning that

proper grammar and usage would assign them.’ ”

Nielsen v. Preap, ––– U.S. ––––, 139 S. Ct. 954, 965,

203 L.Ed.2d 333 (2019) (first alteration in original)

(quoting Antonin Scalia & Bryan Garner, Reading Law:

The Interpretation of Legal Texts 140 (2012)). In writing

“an assessment under subsection (a)” Congress chose the

indefinite article “an” to modify “assessment.” As an

indefinite article, “a” or “an” “implies that the thing

referred to is nonspecific.” Indefinite Article, New Oxford

American Dictionary (3d ed. 2010); see also

McFadden v. United States, ––– U.S. ––––, 135 S. Ct.

2298, 2304, 192 L.Ed.2d 260 (2015) (analyzing the

significance of Congress’s use of an indefinite article to

mean some undetermined or unspecified particular); cf.

Shamokin Filler Co. v. Fed. Mine Safety & Health Review

Comm’n, 772 F.3d 330, 336 (3d Cir. 2014) (finding that

Congress’s choice of a definite article—rather than an

indefinite article—regulated activity at a particular place).

And so too here, Congress left the aggregate amount

assessed under subsection (a) dependent on the amount of

qualifying convictions.6

Then, after first establishing “assessment” to mean an

indefinite or unrestrictive amount, Congress rightly pivots

when returning to “assessment” later in the same

subsection. Here, the statute twice uses the definite article

“the” to modify “assessment” and thus looks back to the

initial reference to assessment in the subsection. And so,

read naturally, “the assessment” or “the special

assessment” in subsection (b) means the total amount of

“an assessment under subsection (a).” Congress repeats

this arrangement in subsection (g): “the obligation to pay

an assessment imposed on or after the date of enactment

of the Justice for Victims of Trafficking Act of 2015 shall

not cease until the assessment is paid in full.”

U.S.C. § 3014(g) (emphasis added).

So too with the formulation in subsection (f), “[t]he

amount assessed under subsection (a),” where Congress

does not quantify “the amount.” Subsection (f) employs

the indeterminate phrase “the amount” to signify an

unrestricted sum. When used in this context, “amount”

means “a quantity of something, typically the total of a

thing or things in number, size, value, or extent[.]”

Amount, New Oxford American Dictionary (3d ed. 2010)

(emphasis added). Congress’s choice therefore leaves “the

amount assessed” open to more than one monetary value.

18 U.S.C. § 3014(f).

*619 In all, the words of

§ 3014 confirm the District

Court was correct to impose a $15,000 special assessment

under the JVTA.

§ 3014 Mirrors the

B. The Special Assessment in

Neighboring Special Assessment in § 3013

§ 3014 agrees with our long-standing

This reading of

interpretation of the assessment codified at 18 U.S.C. §

§ 3014 instructs that the special

3013. Recall that

assessment applies “in addition to the assessment imposed

18 U.S.C. § 3014(a). And well

under section 3013.”

before Congress wrote

§ 3014, the meaning of the

phrase “convicted of an offense” in § 3013 was settled in

the federal courts. That history is significant, for when

Congress uses a phrase that has a settled judicial

interpretation, we presume it adopts that interpretation

when it chooses to repeat the same text in a new statute.

Lamar, Archer & Cofrin, LLP v. Appling, –––

See

U.S. ––––, 138 S. Ct. 1752, 1762, 201 L.Ed.2d 102

(2018); see also Berardelli v. Allied Servs. Inst. of Rehab.

Med., 900 F.3d 104, 117 (3d Cir. 2018). Under this

prior-construction canon, “if courts have settled the

meaning of an existing provision, the enactment of a new

provision that mirrors the existing statutory text indicates,

as a general matter, that the new provision has that same

Lightfoot v. Cendant Mortg. Corp., –––

meaning.”

U.S. ––––, 137 S. Ct. 553, 563, 196 L.Ed.2d 493 (2017)

Bragdon v. Abbott, 524 U.S. 624, 645, 118

(citing

S.Ct. 2196, 141 L.Ed.2d 540 (1998)). By borrowing

§ 3014,

nearly identical language when drafting

Congress gave its implicit endorsement of courts’

treatment of § 3013, as the “repetition of the same

language in a new statute indicates ... the intent to

incorporate its ... judicial interpretations as well.”

Berardelli, 900 F.3d at 117 (alterations in original)

Bragdon, 524 U.S. at 645, 118 S.Ct. 2196).

(quoting

And more than history and location link § 3013 and

3014.

Section 3014’s cross-reference to § 3013 further

counsels courts to interpret the two statutes in lockstep, as

it would be incongruous to conclude Congress intended

courts to read the same phrase differently when applying

assessments to the same defendant in the same case. We

can also dismiss the possibility that Congress sought to

alter the settled interpretation of § 3013’s phrase

§ 3014. To

“convicted of an offense” when it enacted

the contrary, “ ‘[t]he modification by implication of the

United States v. Johnman, 948 F.3d 612 (2020)

settled construction of an earlier and different section [or

a related statute] is not favored.’ ”

TC Heartland LLC

v. Kraft Foods Grp. Brands LLC, ––– U.S. ––––, 137 S.

Ct. 1514, 1520, 197 L.Ed.2d 816 (2017) (quoting United

States v. Madigan, 300 U.S. 500, 506, 57 S.Ct. 566, 81

L.Ed. 767 (1937)). Thus, absent “clear indication” of

Congress’s plan to change the meaning of a judicially

settled construction, that construction should not be

Id. As a result, “[t]he broader statutory

disturbed.

context points to the same conclusion the immediate text

suggests.” Wis. Cent., 138 S. Ct. at 2071.

And the logic used by courts to interpret § 3013 extends

§ 3014 as well. See Luongo, 11 F.3d at 10

(explaining that “because the statute is phrased in the

singular, its terms imply that each offense—each

felony—calls for a separate special assessment, even

when a single defendant is simultaneously convicted of

multiple charges”). Just as with § 3013, it is illogical to

§ 3014’s application to depend “not upon the

read

number of offenses of which [the defendant] was

convicted,” but on the happenstance of “whether she was

tried for those offenses in one or more proceedings.”

Donaldson, 797 F.2d at 128 (citing *620

Pagan,

785 F.2d at 381).7

For these reasons, the text of § 3013 and its context leave

only one interpretation: where a defendant is

non-indigent, a separate $5,000 assessment applies to

every qualifying count of conviction.8

Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct.

2247, 65 L.Ed.2d 205 (1980) (internal quotation marks

omitted). But invoking the rule “requires more than a

United States v.

difficult interpretative question.”

Flemming, 617 F.3d 252, 270 (3d Cir. 2010). Rather, the

rule “comes into operation at the end of the process of

construing what Congress has expressed, not at the

beginning as an overriding consideration of being lenient

United States v. Barbosa, 271 F.3d

to wrongdoers.”

438, 455 (3d Cir. 2001) (quoting

Callanan v. United

States, 364 U.S. 587, 596, 81 S.Ct. 321, 5 L.Ed.2d 312

(1961)).9 And it may be applied only where we are left

with “grievous ambiguity” after applying all other

United

traditional tools of statutory interpretation.

States v. Diaz, 592 F.3d 467, 474–75 (3d Cir. 2010).

Johnman sees ambiguity not in the text, but in the

§ 3014(a), citing inconsistencies in the

application of

assessments imposed by district courts in this Circuit.10

*621 But that is not enough, for “[a] statute is not

ambiguous for purposes of lenity merely because there is

a division of judicial authority over its proper

Reno v. Koray, 515 U.S. 50, 64–65, 115

construction.”

S.Ct. 2021, 132 L.Ed.2d 46 (1995) (internal quotation

marks omitted). Because we find the statute clear, the rule

of lenity does not affect our review.11

The $5,000 assessment under the Justice for Victims of

Trafficking Act applies to each qualifying count of

conviction. We will thus affirm the sentence imposed by

the District Court.

All Citations

948 F.3d 612

C. Lenity is Inapplicable

Finally, Johnman argues the “rule of lenity” requires

resolving any statutory ambiguities in his favor. “[T]he

touchstone of the rule of lenity is statutory ambiguity.”

Footnotes

The additional $300 stems from separate, $100‐per‐count assessments imposed under 18 U.S.C. § 3013.

Rutledge v. United States, 517 U.S. 292, 301, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996) (noting that § 3013

See

requires a special assessment for every count of conviction); United States v. Luongo, 11 F.3d 7, 10 (1st Cir. 1993)

(holding that each felony requires a separate special assessment); United States v. Oanh Vu Nguyen, 916 F.2d 1016,

United

1020 (5th Cir. 1990) (holding that the district court needed to impose an assessment for each conviction);

States v. McGuire, 909 F.2d 440, 441–42 (11th Cir. 1990) (per curiam) (concluding that the special assessment

United States v. Johnman, 948 F.3d 612 (2020)

applies per count of conviction); United States v. Smith, 857 F.2d 682, 686 (10th Cir. 1988);

Dobbins, 807 F.2d 130, 132 (8th Cir. 1986);

See

18 U.S.C. § 3014(b).

See

id. § 3014(f).

United States v.

United States v. Pagan, 785 F.2d 378, 381 (2d Cir. 1986).

See id. § 3014(g).

We recognize that one could interpret subsection (b)’s use of the indeterminate “an” in more than one way. But the

structure of the statute clarifies that “an” refers to the indeterminate total amount of the assessment. Subsection

(a) imposes an assessment if two conditions exist: (1) the person is non‐indigent; and (2) the person or entity is

convicted of an enumerated offense. Subsection (b) then assigns a lower priority to that assessment, explaining that

it will not be payable until other specified debts are satisfied. So read together, the qualifications of subsection (b)

only come into play if an assessment is ordered. And since an assessment cannot be issued against the indigent or

for a non‐enumerated conviction, the conditions of (b) simply do not arise in a matter involving those exempted or

inapplicable classes. In short, the reader has no occasion to consider the conditions of subsection (b) if the

conditions of subsection (a) are not satisfied. All of which illustrates that even if a word can bear more than one

meaning, it is the best ordinary reading of a statute we seek. See Wis. Cent., 138 S. Ct. at 2072.

In trying to distinguish

§ 3014 from § 3013, Johnman highlights several ways in which

§ 3014 “is more

onerous” (Appellant’s Br. at 16), including that the amount of the assessment is much higher, compare

§ 3014(a), with id. § 3013(a), that the obligation to pay it lasts longer, compare

and that

18 U.S.C.

id. § 3014(g), with id. § 3013(c),

§ 3014(a) contains an indigency exception while § 3013(a) does not. All true, but our role is not to

Rotkiske v. Klemm, ––– U.S. ––––, 140 S. Ct. 355, 361, 205 L.Ed.2d 291

“second‐guess Congress’ decision.”

(2019). There is no freestanding rule of statutory interpretation that a court may rewrite statutes to be less

“onerous” to criminal defendants. Indeed, that Congress created an indigency exception in

grasped the severity of the assessment.

§ 3014(a) shows it

§ 3014 with comments from members of Congress. For instance,

Johnman looks to overcome the language of

Johnman cites remarks by one of the JVTA’s legislative sponsors—made two years after the law’s

enactment—explaining that the JVTA “also allows a federal judge to impose an additional assessment of up to

$5,000.” (Opening Br. at 9 (quoting 163 Cong. Rec. H4564 (daily ed. May 24, 2017)).) Generally, “[p]ost‐enactment

Pa. Med.

legislative history is not a reliable source for guidance” in assessing the ordinary meaning of a statute.

Soc’y v. Snider, 29 F.3d 886, 898 (3d Cir. 1994); see also Sikkelee v. Precision Airmotive Corp., 822 F.3d 680, 698–99

(3d Cir. 2016). And in any event, those remarks fight the text of the statute: the JVTA is not permissive and does not

18 U.S.C. §

“allow” judges to impose an assessment “up to” $5,000. Rather, the assessment is mandatory. See

3014(a) (“the court shall assess an amount of $5,000” (emphasis added)). So these comments lend Johnman no

support, for we “must presume that Congress ‘says in a statute what it means and means in a statute what it says

Rotkiske, 140 S. Ct. at 360 (quoting

there.’ ”

1146, 117 L.Ed.2d 391 (1992)).

We inverted this order in

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54, 112 S.Ct.

Donaldson, considering, and rejecting, the rule of lenity before turning to the “normal

797 F.2d at 127–28. That path has been repudiated by later case law, and

canons of statutory construction.”

neither party suggests we must apply it here.

Compare United States v. Porter, No. 2‐16‐cr‐00036 (E.D. Pa.) (imposing a $5,000 JVTA assessment based on two

United States v. Johnman, 948 F.3d 612 (2020)

qualifying convictions), with United States v. Leroy, No. 2‐16‐cr‐00243 (W.D. Pa.) (imposing a $20,000 JVTA

assessment based on four qualifying convictions), and United States v. Johnman, No. 2‐17‐cr‐00245 (E.D. Pa.)

(imposing a $15,000 JVTA assessment based on three qualifying convictions).

Even assuming we found the assessment under the JVTA ambiguous, for the rule of lenity to apply we would need to

assess whether the statute imposes a criminal rather than civil sanction—an issue we do not reach today.

End of Document

United States v. Haverkamp, 958 F.3d 145 (2020)

958 F.3d 145

United States Court of Appeals, Second Circuit.

UNITED STATES of America, Appellee,

Paul HAVERKAMP, Defendant-Appellant.

No. 18-3735-cr

August Term 2019

Argued: December 11, 2019

Decided: May 4, 2020

Synopsis

Background: Defendant pled guilty in the United States

District Court for the Southern District of New York,

Ronnie Abrams, J., to distribution and receipt of child

pornography and possession of child pornography, and he

appealed.

Holdings: The Court of Appeals, Parker, Senior Circuit

Judge, held that:

defendant’s below-Guidelines 121-month sentence was not

substantively unreasonable;

provision of Justice for Victims of Trafficking Act (JVTA)

directing court to assess amount of $5,000 was to be

applied on per-offender, not per-count, basis; and

district court did not commit plain error in imposing special

condition of computer monitoring during supervised

release.

B. Tehrani, Assistant United States Attorney, on the brief)

for Geoffrey S. Berman, United States Attorney for the

Southern District of New York, for Appellee.

Yuangchung Lee, Federal Defenders of New York, Inc.

Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: SACK, PARKER, and CHIN, Circuit Judges.

Opinion

BARRINGTON D. PARKER, Circuit Judge:

Paul Haverkamp appeals from a judgment of conviction

entered in the United States District Court for the Southern

District of New York (Abrams, J.). The judgment followed

a plea of guilty to one count of distribution and receipt of

child pornography in violation of

18 U.S.C. §§

2252A(a)(2)(B),

2252A(b)(1) and one count of

possession of child pornography in violation of

U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2). Haverkamp

was sentenced to 121 months of imprisonment, to be

followed by five years’ supervised release. In addition, the

district court imposed a $200 mandatory special

assessment under 18 U.S.C. § 3013 as well as a $10,000

assessment under

18 U.S.C. § 3014. One of the

conditions of supervised release required that Haverkamp

submit to computer monitoring that will alert the Probation

Office should any “impermissible or suspicious activity”

occur on an internet-connected device he might be using.

On appeal, Haverkamp challenges his term of

imprisonment as substantively unreasonable, the $10,000

special assessment as legally impermissible, and the

computer monitoring condition of his supervised release as

overbroad. For the reasons set forth below, we affirm the

sentence in part, vacate in part, and remand for further

proceedings consistent with this opinion.

Affirmed in part, vacated in part, and remanded.

Procedural Posture(s): Appellate Review; Sentencing or

Penalty Phase Motion or Objection.

*147 Appeal from the United States District Court for the

Southern District of New York, No. 1:17-cr-00509, Ronnie

Abrams, District Judge, Presiding.

Attorneys and Law Firms

Aline R. Flodr, Assistant United States Attorney, (Daniel

BACKGROUND

From approximately March 17, 2017 through April 23,

2017, Haverkamp exchanged over 400 messages with an

undercover agent from the Federal Bureau of Investigation

on the social media app KIK. Over the course of their

conversations, Haverkamp sent the Agent approximately

United States v. Haverkamp, 958 F.3d 145 (2020)

35 image and video files and shared a link to a cloud

storage account that contained hundreds of files of child

pornography. The files contained images depicting the

sexual exploitation of children, including infants and

toddlers. In July 2017, FBI Special Agents executed a

search warrant at Haverkamp’s apartment. Haverkamp was

home at the time and voluntarily *148 spoke with agents.

Over the course of the interview, he made numerous

incriminating statements. Haverkamp was prosecuted and

in June 2018 he pleaded guilty to a two-count indictment.

The first count charged distribution and receipt of child

pornography in violation of

18 U.S.C. §§

2252A(a)(2)(B),

2252A(b)(1) and the second count

charged possession of child pornography in violation of

18 U.S.C. §§ 2252A(a)(5)(B),

2252A(b)(2). The

Probation Office prepared a presentence report in which it

calculated a total offense level of 37, a Criminal History

Category of I, and a resulting Guidelines range of 210-262

months.

DISCUSSION

Haverkamp’s first challenge on appeal is to the substantive

reasonableness of his sentence. We apply a “deferential

abuse-of-discretion” standard to that challenge.

United

States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en

banc) (quoting

Gall v. United States, 552 U.S. 38, 41,

128 S.Ct. 586, 169 L.Ed.2d 445 (2007)).1 A sentence is

substantively unreasonable if it “cannot be located within

the range of permissible decisions,” shocks the conscience,

or constitutes manifest injustice. See

United States v.

Rigas, 583 F.3d 108, 123 (2d Cir. 2009).

Haverkamp contends that the district court erred by not

approaching the child pornography guidelines with the

“appropriate skepticism.” As support, he points to this

Court’s precedent, which expresses concerns about §

2G2.2, describing it as a “Guideline that is fundamentally

different from most and that, unless applied with great care,

can lead to unreasonable sentences that are inconsistent

with what [ 18 U.S.C.] § 3553 requires.”

United

States v. Dorvee, 616 F.3d 174, 184 (2d Cir. 2010).

Our review of the record shows no abuse of discretion. To

the contrary, the record reflects that the district court

properly considered the “nature and circumstances of the

offense” when fashioning the sentence imposed. The

district court noted the volume of messages, videos, and

photographs Haverkamp exchanged and emphasized that

his conduct went beyond the trading of existing child

pornography. Specifically, the district court explained that

Haverkamp’s conduct included the solicitation of the

production of child pornography from minors over social

media as well as his admission that at one point in time he

had sexual relations with a 14-year-old boy. The district

court also expressly acknowledged Haverkamp’s timely

acceptance of responsibility, his apparently genuine

expression of regret and remorse, his active engagement in

therapy, and his volunteer work while incarcerated. The

district court considered all these factors and concluded

that a sentence of 121 months’ imprisonment, which was

well below Haverkamp’s Guidelines range, was warranted.

We see no manifest injustice in that conclusion.

Next, Haverkamp argues that the district court erred in

imposing a $10,000 special assessment under

U.S.C. § 3014. The special assessment was applied by the

district court on a “per-count” basis, rather than a “peroffender” basis, which would have limited the assessment

to $5,000. We review the district court’s imposition of the

special assessment for plain error because Haverkamp did

not challenge this computation during his sentencing

proceedings. See

United States v. Marcus, 560 U.S.

258, 264-67, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010);

*149 United States v. Santiago, 238 F.3d 213, 215-17

(2d Cir. 2001) (per curiam). Consequently, Haverkamp

bears the “burden of persuasion on appeal to show that the

district court committed plain error.”

United States v.

Gore, 154 F.3d 34, 42 (2d Cir. 1998). However, as we have

noted, a “relaxed” form of plain error review is appropriate

in the sentencing context because “the cost of correcting an

unpreserved error is not as great as in the trial context.”

United States v. Matta, 777 F.3d 116, 121 (2d Cir. 2015);