Petitioners Brief — Johnson v. United States

99-5153

NO. 98-5664

ORIGINAL

THE UNITED STATES SUPREME COURT

OCTOBER 1998 TERM

UNITED STATES OF AMERICA,

Respondent

V.

CORNELL JOHNSON,

Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA LaLUMIA

Assistant Federal Community Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

707 Georgia Avenue, Suite 203

Chattanooga, Tennessee 37402

(423) 756-4349

Counsel for Petitioner

NO. 98-5664

IN THE UNITED STATES SUPREME COURT

OCTOBER 1998 TERM

UNITED STATES OF AMERICA,

Respondent

V.

CORNELL JOHNSON,

Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RITA LaLUMIA

Assistant Federal Community Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

707 Georgia Avenue, Suite 203

Chattanooga, Tennessee 37402

(423) 756-4349

Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

Whether the United States Court of Appeals for the Sixth Circuit

erred in concluding ins the district court properly imposed a

"tail" of supervised release following incarceration after revoking

Petitioner's initial term of supervised release, in violation of the

Ex Post Facto Clause of the United States Constitution.

TABLE OF CONTENTS

| Page

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ............. 3

STATEMENT OF THE CASE AND FACTS ... occ ccc cc cc ccc cee ences 4

REASONS FOR GRANTING OF THE WRIT ............. 000-0. cece cece. 5

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TABLE OF AUTHORITIES

United States Supreme Court Cases: _

Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451 (1987) .. 6,10

United States Court of Appeals Cases:

Calder v. Bull, 3 Dall. 386, 1 L.Ed 648 (1798)... . 2. een, 6

United States v. Beals, 87 F.3d 854, 857 (7" Cir. 1996) ............. 6

United States v. Brady, 88 F.3d 225, 228-229 (3" Cir.), cert. denied, 117

cea. co ke Skene peees es es eeeecess 9

United States v. Collins, 118 F.3d 1394 (9" Cir. 1997) ..........0.... 8

United States v. Dozier, 119 F.3d 239 (3 Cir. 1997) ............. 8,9

United States v. Evans, 87 F.3d 1009, 1010-11 (8 Cir. 1996) ........ 9

United States v. Lominac, 144 F.3d 308, 315 (4 Cir. 1998)......... 6-8

United States v. Meeks, 25 F.3d 1117 (2 Cir. 1994) ............ 8,9

United States v. Parriett, 974 F.2d 523 526 (4" Cir. 1992)... ....... . 9

United States v. Paskow, 11 F.3d 873, 876 (9" Cir. 1993) ........... 9

United States v. Reese, 71 F.3d 582, 584 (6" Cir.), cert. denied 116 S.Ct.

ee Ce eee nsec cenececes 7,8, 10

United States v. Schrader, 973 F.2d 623, 624-25 (8 Cir. 1992) ....... 9

United States v. St. John, 92 F.3d 751, 766-67 (8 Cir. 1996) ........ 9

United States v. Truss, 4 F.3d 437, 438-39 (6" Cir. 1993) ........... 5

United States v. Wash, 97 F.3d 1465 (10" Cir. 1996) .............. 9

United States v. Withers, 128 F.3d 1167 (7" Cir. 1997) ............. 6

iV

TABLE OF AUTHORITIES (Continued)

| Page

Constitutional, Statutory, and Regulatory Provisions:

18 Unieed States Code, Section 36GB 0... cece cere ccenes 5

18 United States Code, Section 3583(e) ...............2 cece eeee: 7

18 United States Code, Section 3583(e)(3) ................2245. 3,6

18 United States Code, Section 3583(g)..................0005- 8,9

18 United States Code, Section 3583(h).... 2... eee 3, 5-9

28 United States Code, Section 1254(1) .......... 0.0. e eee ee eee 2

Federal Rules of Criminal! Procedure, Rule 32.1(b) ........ COS er re 7

United States Constitution, Article 1, Section 9, Clause 3 (the Ex Post

FED NED 8 0b 0:0'o 0 cn 066004646 05 bss pee tewes hes ii-6, 8-10

United States Supreme Court Rules, Rule 13 ..............0.50 04 ce 2

OPINIONS BELOW

1. Opinion, United States Court of Appeals for the Sixth Circuit, United

States of America v. Cornell Johnson, C.A. No. 98-5664 (6th Cir., April 23,

1999) (not recommended for full text publication).

2. Judgment in a Criminal Case, United States District Court for the

Eastern District of Tennessee at Chattanooga, United States of America v.

Cornell Johnson, District Court No. 1:93-cr-00138, May 1, 1998.

JURISDICTIONAL STATEMENT CONSTITUTIONAL ANC STATUTORY PROVISIONS INVOLVED

The United States Court of Appeals for the Sixth Circuit entered its United States Constitution, Article 1, Section 9, Clause 3 (the Ex Post

opinion in this case on April 29, 1999. This Court's jurisdiction is invoked | Facto Clause): “No Bill of Attainder or ex post facto Law shall be passed.”

under Title 28, United States Code, Section 1254(1). Rule 13 of the Supreme Chapter 18, United States Code, Section 3583(h): “When a term of

Court allows tov ninety days within which to file a petition for a writ of supervised release is revoked and the defendant is required to serve a term of

certiorari after entry of judgment by the appellate court. Accordingly, this imprisonment that is less than the maximum term of imprisonment authorized

petition is timely filed. under subsection (e)(3), the court may include a requirement that the

Petitioner, Cornell Johnson, respectfully prays that a writ of certiorari defendant be placed on a term of supervised release after imprisonment. The

issue to review the judgment and opinion of the United States Court of length of such a term of supervised release shall not exceed the term of

Appeals for the Sixth Circuit. In that opinion, the Sixth Circuit affirmed the supervised release authorized by statute for the offense that resulted in the

sentence of Petitioner. original term of supervised release, less any term of imprisonment that was

imposed upon revocation of supervised release.”

STATEMENT OF THE CASE AND FACTS

Petitioner Cornell Johnson was originally convicted on February 28,

1994, for a Class D felony, and was sentenced to 25 months in prison

followed by a three-year term of supervised release.

On April 30, 1998, Petitioner appeared in federal court to answer

various allegations that he had violated his supervised release conditions by

committing another crime and leaving the jurisdiction without permission.

Petitioner admitted these violations, and his supervised release was revoked.

The applicable policy guidelines were 18 to 24 months, and the district court

sentenced Petitioner to 18 months in prison to be followed by 12 months of

supervised release. Petitioner argued that the reimposition of supervised

release violates the Ex Post Facto Clause of the United States Constitution.

The district court denied the Petitioner's motion.

REASONS FOR GRANTING OF THE WRIT

The United States Court of Appeals for the Sixth Circuit erred in

concluding that the district court properly imposed a “tail” of

supervised release following incarceration after revoking

Petitioner's initial term of supervised release, in violation of the

Ex Post Facto Clause of the United States Constitution.

On September 13, 1994 Congress amended 18 U.S.C. § 3583 to allow

district courts to reimpose a term of supervised release after revoking the

original term of supervision and requiring a term of imprisonment. 18 U.S.C.

§ 3583(h). Prior to that amendment, district courts generally did not have the

authority to reimpose supervision after ordering imprisonment from a

supervised release revocation hearing. Thus, when Petitioner committed his

crime in 1993, which resulted in a term of imprisonment as well as a term of

supervised release, he was not subject to the reimposition of supervision if his

supervised release term were to be revoked. United States v. Truss, 4 F.3d

437, 438-39 (6" Cir. 1993).

Because § 3583(h) allows the imposition of an additional term of

supervision following™a term of incarceration, Petitioner contends that

§ 3583(h) violates ex post facto prohibitions by subjecting him to a greater

punishment for his original crime than was available at the time he committed

the crime.

The Ex Post Facto Clause states: "No Bill of Attainder or ex post facto

Law shall be passed." U.S. Const. art. |, § 9, cl. 3. An early decision relating

to the Ex Post Facto Clause was rendered by the United States Supreme Court

in Calder v. Bull, 3 Dall. 386, 1 L.Ed 648 (1798). In Ca/der, the Supreme

Court set down four pronouncements concerning the Ex Post Facto Clause,

including a statement that the Ex Post Facto Clause is violated by "[e]very law

that changes the punishment, and inflicts a greater punishment, than the law

annexed to the crime, when committed.” /d. at 390. More recently, a two-

prong test has been applied to determine whether the application of a law

violates the Ex Post Facto Clause. First, the law must apply to events before

its enactment and, second, the law must disadvantage the offender affected

by it. Miller v. Florida, 482 U.S. 423, 430, 107 S.Ct. 2446, 2451 (1987).

Looking at the second element first, it is clear that § 3583(h) works at

a disadvantage to this Petitioner. United States v. Lominac, 144 F.3d 308,

315 (4 Cir. 1998). When a defendant has his supervised release revoked, he

receive no credit for "time previously served on post release supervision.” See

18 U.S.C. §3583(e)(3). Now, after application of subsection (h) a defendant

can serve multiple terms of supervised release and lose multiple periods of

"street time" after the initial revocation. United States v. Beals, 87 F.3d 854,

857 (7" Cir. 1996); overruled by United States v. Withers, 128 F.3d 1167

(7" Cir. 1997). Applying common sense, the Rules of Criminal Procedure, and

the reasoning of a decision such as that in Lominac, it is clear that further time

on supervised release is not favorable to a defendant. Fed R.Crim.P. 32.1(b)

("an extension of the term of probation or supervised release is not favorable

to the person for the purposes of this rule"); Lominac, 144 F.3d at 315 (Under

§ 3583(h), in addition to the court's ability to sentence a defendant to a term

of imprisonment, the court may impose a new term of supervised release that

constitutes a potential punishment greater than that under § 3583(e) alone.)

After determining that subsection (h) works to a defendant's

disadvantage, the question becomes whether or not the defendant's new

punishment "should be considered the continuing legal consequence of the

defendant's original crimes, or viewed instead as the independent legal

consequence of a defendant's later misconduct." United States v. Reese, 71

F.3d 582, 584 (6" Cir.), cert. denied 116 S.Ct. 2529 (1995). The

Petitioner's reinstatement on supervised release is a consequence of the

original crime, not the consequence of his later misconduct.

This is so because there may be misconduct which triggers a violation

of supervised release that is not "illegal." For example, a defendant can

violate supervised release conditions for failing to work, failing to fill out a

monthly report or, as here, leaving the judicial district without prior approval.

These actions, although not criminal can, and in fact do, serve as the grounds

for revocation of supervised release. The Reese panel focused on the fact that

Defendant Reese "repeatedly tested positive for drugs" and would have

suffered no ill effect had he been able to conform his conduct to legal

requirements. 71 F.3d at 590. Even where the revocation is based on

allegations that the defendant has committed a crime while on supervised

release, the additional punishment in the form of reimposition of supervised

release following a term of incarceration constitutes additional penalties for

the original crime which would not have been available at the time the original

crime was committed.

At least four circuits have express!y decided that the retrospective

application of § 3583(h) violates the Ex Post Facto Clause. United States v.

Lominac, 144 F.3d 308 (4" Cir. 1998); United States v. Dozier, 119 F.3d 239

(3° Cir. 1997); United States v. Collins, 118 F.3d 1394 (9" Cir. 1997); and

United States v. Meeks, 25 F.3% 1117 (2 Cir. 1994). In Collins, the Ninth

Circuit found that the "district court here applied § 3583(h) to punish deeds of

[the defendant's] that occurred before the section’s enactment,” even though

the actions which constituted the violations occurred after § 3583(h) became

effective. Collins, 118 F.3d at 1397. The Ninth Circuit also noted that

“violation of a condition of supervised release is accordingly not a new

substantive offense for purposes of the Ex Post Facto Clause," and that such

violations are often not crimes at all, and "the punishment that follows such a

violation is imposed on the authority of conviction for the underlying offense.”

Id.

Some circuits have also considered the ex post facto issue with respect

to the mandatory prison requirement of § 3583(g). The Second, Fourth and

|

|

|

—

Ninth Circuits have found that § 3583(g) and its retrospective punishment

violates the Ex Post Facto Clause inasmuch as the mandatory prison

requirement is a ‘inedniaiaiien of the offender’s underlying crime [just] as is

the initial term of imprisonment." United States v. Meeks, 25 F.3d 1117 (2°

Cir. 1994); United States v. Paskow, 11 F.3d 873, 876 (9" Cir. 1993);

United States v. Parriett, 974 F.2d 523 526 (4" Cir. 1992).

Other circuits have examined § 3583(h) and found that its retrospective

application does not violate the Ex Post Facto Clause. United States v. St.

John, 92 F.3d 751, 766-67 (8" Cir. 1996); United States v. Brady, 88 F.3d

225, 228-229 (3” Cir.), cert. denied, 117 S.Ct. 773 (1997); United States v.

Evans, 87 F.3d 1009, 1010-11 (8 Cir. 1996). However, it must be noted

that those circuits have given a qualified acceptance of 83583(h) and its

retrospective application: the Third Circuit now differentiates between

revocation from a Class A felony as was the case in Brady, or a Class B, C, or

D felony as was the case in Dozier. See Dozier, 119 F.3d at 243-44. The

Eighth Circuit has always allowed for reimposition of supervised release after

revocation, even before the enactment of §83583(h), and accordingly there is

no ex post facto concern for that circuit. United States v. St. John, 92 F.3d

at 765; United States v. Schrader, 973 F.2d 623, 624-25 (8" Cir. 1992).

The Tenth Circuit also approved the retrospective application of § 3583(h) in

an unpublished opinion, United States v. Wash, 97 F.3d 1465 (10" Cir. 1996)

(relying in part on Tenth Circuit precedent allowing imposition of a new term

of supervised release after revocation).

in summary, Peitenss submits that the two-prong test of Miller v.

Florida is met: the district court has applied a law to events occurring before

the law’s enactment, and Petitioner was disadvantaged by the application of

the law to him. Miller, 107 S.Ct. at 2451; Reese, 71 F.3d at 585.

CONCLUSION

The reimposition of supervised release after revocation of supervised

release and incarceration in prison violates the Ex Post Facto Clause.

Petitioner respectfully requests a writ of certiorari issue to the United States

Court of Appeals for the Sixth Circuit to reverse its ruling to the contrary.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF TERN TENNESSEE, INC.

oy: Khe

Rita LaLumia

The Flatiron Building

Suite 203

707 Georgia Avenue

Chattanooga, TN 37402

(423) 756-4349

10

ae

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of the

foregoing has been served upon the Solicitor General, Department of Justice,

10th Street and Constitution Avenue, Washington, D.C., 20530, and to

Mr. Gary Humble, Assistant United States Attorney, 1110 Market Street,

Chattanooga, Tennessee, 37402, by placing a true and exact copy of same in

the United States Mail, with sufficient postage thereon to carry the same to

its destination.

Aacolh

This the~” |’ dayof Jl(iic_> _, 1999.

Rita LaLumia

11

NO.98-5664

IN THE UNITED STATES SUPREME COURT

OCTOBER 1998 TERM

UNITED STATES OF AMERICA,

Respondent,

V.

CORNELL JOHNSON,

Petitioner.

APPENDIX

RITA LaLUMIA

Assistant Federal Community Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

707 Georgia Avenue, Suite 203

Chattanooga, Tennessee 37402

(423) 756-4349

Counsel for Petitioner

12

me “eet ee wre fe te r.g

No. 98-5664 .

UNITED STATES COURT OF APPEALS FILED

a APR 29 1999

UNITED STATES OF AMERICA,

Plaintiff- Appellee,

ORDER

NOT RECOMMENDED FOR FULL-TEXT

PUBLICA

<

NN eee ee ee ee ee

This retice ls © be prominently Q

+ dirpleyed J this decision

Before: MARTIN, Chief Judge; BOGGS and COLE, Circuit Judges.

Appendix p.!l

Upon review, we conclude that the district court properly sentenced Johnson. See United

States v. Lloyd, 10 F 3d 1197, 1220 (6th Cir. 1993), cert. denied, $11 U.S. 1043 and 1146 and $13

U.S. 883 (1994). Johnson's sentence does not violate the Ex Post Facto Clause. In order for a

statutory modification of punishment to run afoul of the Ex Post Facto Clause: 1) the statute must

apply retroactively to past conduct; and 2) the statute must work to the prejudice or disadvantage of

the defendant. See Miller v. Florida, 482 U.S. 423, 430 (1987). This court has rejected Johnson's

argument, concluding that the application of § 3583(h) does not violate the E>. Pos’ Facto Clause.

See United States v. Abbington, 144 F 34 1003, 1005 (6th Cir.), cert. denied, 119 S. Ct. 344 (1998);

United Siates v. Page, 131 F.3d 1173, 1175 (6th Cir. 1997), cert. denied, 119 S. Ct. 77 (1998).

Although several cther circuits have concluded that the application of § 3583(h) does violate the Ex

Post Facto Clause, see United States v. Lominac, 144 F 34 308, 312-16 (4th Cir. 1998); United

States v. Dozier, 119 F.3d 239, 242-44 (3d Cir. 1997); United States v. Collins, 118 F.34 1394,

1397-99 (9th Cir. 1997); United States v. Meeks, 25 F 3d 1117, 1119 (2d Cir. 1994), these cases are

not controlling authority in this circuit.

Accordingly, we affirm the district court's judgment.

ENTERED BY ORDER OF THE COURT

iret & ~

iled

—MAY - 14999

Entd. Order Bi pg SO

AO 2450 (Rev 8/96) Sheet | - Judgment in a Camnai Case for Revocatons

Gnited States District Cot ——

Eastern District of Tennessee at Chattanooga

UNITED STATES OF AMERICA JUDGMENT IN A CRIMINAL CASE

- (For Revocation of Probation or Supervised Release)

Cornell Johnson (For Offenses Committed On or After November 1, 1987)

Case Number 1:93CR00138-002

Perry H. Piper

Detencants Attorney

THE DEFENDANT:

ys admitted guilt to violation of condition(s) _#1 and general cond. _ of the term of supervision.

= was found in violation of condition(s) __ after denial of guilt.

Date Violation

Violation Number Nature of Violation Occurred

l The defendant failed to comply with the condition that he not commit another 63/03/1996

federal, state, or local crime.

2 The defendant failed to comply with the condition that he not leave the judicial 03/03/1996

district without the permission of the Court or probation officer.

Aj TEST:

A trae Copy

*"¢ this MAY os ] 1998 __

The defendant is sentenced as provided in pages 2 through __ 6 __ of this judgment. The sentence is imposed pursuant

to the Sentencing Reform Act of 1984.

“The defendant has not violated condition(s) and is discharged as to such viciation(s) condition.

IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this distnict within 30 days of

change of name, residence, or mailing address until until ail fines, restitution, costs, and special assessments imposed by this

are fully paid.

Defendant's Soc. Sec. No. 250-04-0337 04/30/1998

Defendant's Date of Birth: 05/09/1954 Ome of imocsmor of .uogment

Defendant's USM No. 84669-0071

Defendant's Residence Address”

845 North Central Avenue #615 > & Lie ==, :

Signeure Ff uae Ofer

Hapeville GA 30354 R. ALLAN EDGAR \

United States District Judge

Defendant's Mailing Adcress. ————

845 North Central Avenue #615

Hapeville GA

AO 2450 (Rev 8/96) Judgment in a Cormunai Case fork. cons. Sheet 3 - Supervised Release

JudgmentPage 2 of 6 Se A. S

DEFENDANT: Cornell Johnson

CASE NUMBER: _—1:93CR00138-002

| SUPERVISED RELEASE

Upon release from impnsonment, the defendant shall be on supervised release for a term of 12 month(s) -

AO 2450 (Rev. 6/96) Judgment in a Comunai Case forRe = = ans: Sheet 2 - impnsonment

DEFENDANT: Cornell Johnson

CASE NUMBER: 1:93CR00138-002

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for

The defendant shail report to the probation office in the district to which the defendant is released within 72 hours of

reiease from the custody of the Bureau of Pnsons.

—_ The court makes the following recommendations to the Bureau of Prisons: The defendant shall not commit another federal, state, or local crime.

7 The defendant shail not illegally possess a controlled substance

For offenses committed on or after September 13, 1994:

The defendant shail refrain from any unlawful use of a controlled substance. The defendant shall submit to one

ee ee en Oe Os Came en SONEND OUY COED CHIN, 65 CORES UY

x The defendant is remanded to the custody of the United States Marshal.

“~~ The above drug testing condition is suspended based on the court's determination that the defendant poses

™) The defendant shail surrender to the United States Marshal for this district: —— alow risk of future substance abuse (Check. if applicabie )

x The defendant shall not possess a firearm as defined in 18 USC § 921. (Check, if applicable.)

3 , If this judgment imooses a fine or a restitution obligation, it shall be a condition of supervised release that the

| @s notified by the United States Marshal. defendant pay any such fine or restitution that remains unpaid at the commencement of the term of supervised release

in accordance with the Schedule of Payments set forth in the Cnminal Monetary Penalties sheet of this judgment.

The defendant shail surrender for service of sentence at the institution designated by the Bureau of Prisons: The defendant shall comply with the standard conditions that have been adopted by this court (set forth below). The

before 2 o.m. on defendant shail also comply with the additional conditions on the attached page (if indicated below).

p.m. , See Special Conditions of Supervision -Page 4

es notified by the United States Marshal. STANDARD CONDITIONS OF SUPERVISION

as notified by the Probation or Pretrial Services Office. 1) the defendant shail not leave the judicial district without the permission of the court or probation officer.

2) the defendant shall report to the probation officer and shall submit a truthful and complete written report within the first

five days of each month;

3) the defendant shail answer truthfully all inquires by the probation officer and follow the instructions of the probation

RETURN officer,

wre 4) the defendant shall support his or ner dependents and meet other family responsibilities;

| have executed this judgment as follows: 5) the defendant shall work regularly at a lawful occupation unless excused by the probation officer for schooling, training, or

other acceptable reasons,

6) the defendant shail notify the probation officer ten days prior to any change in residence or employment,

7) the defendant shall refrain from excessive use of alcohol:

8) the defendant shail not frequent places where controlled substances are illegally sold, used, distributed, or administered;

9) the defendant shail not associate witn any persons engaged in criminal activity, and shall not associate with any person

convicted of a feiony unless granted permission to do sc by the probation officer.

Defendant delivered on to 10) the defendant shail permit a probation officer to visit him or her at any time at home or elsewhere and shall permit

nie confiscation of any contraband observed in piain view of the probation officer:

at . with a certified copy of this judgment. 11) the defendant shail notify the probation officer within seventy-two hours of being arrested or questioned by a law

enforcement officer,

12) the defendant shail not enter into any agreement to act as an informer or a special agent of a law enforcement agency

a without the permission of the court,

USTED STATES MARSHAL 13) as directed by the probation officer, the defendant shail notify third parties of nsks tnat may be occasioned by the

defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such

4 By notifications and to conurm the defendant's compliance with such notification requirement.

Appendix p. Depay US Merene! | Appendix p.5

at a.m/p.m. on

mm

a

-_——

ae

(|

AO 2450 (Rev 6/96) Judgment n a Crrmunei Case for Re tons Sneet 3 - Supervised Release

' AO 2450 (Rev. 6/96) Judgment in Carnal Case forR. ons Sheet 5. Part A - Cnminai Monetary Pensites

DEFENDANT: Cornell Johnson

CASE NUMBER: 1:93CR00138-002

SPECIAL CONDITIONS OF SUPERVISION

The defendant shall participate in a of testing and treatment for drug and alcohol abuse as directed the proba

officer, until such time as the defendant released from the program by the probation officer. ” ors

The defendant shall participate in a program of mental health treatment as directed by the probation officer.

The defendant shall pay any restitution that remains unpaid at the commencement of the term of supervision.

The defendant shall provide the probation officer with access to any requested financial information.

The defendant shall not incur any credit charges or open additional lines of credit without the approval of the probation officer.

Judgment-Page § of 6

DEFENDANT: Cornell Johnson

CASE NUMBER: 1:93CR00138-002

CRIMINAL MONETARY PENALTIES

The defendant shail pay the following totai criminal monetary penalties in accordance with the schedule of payments set

forth on Sheet 5, Part B.

Assessment Fine Restitution

Totals: $ $ $ 3,286.96

™ If applicable, restitution amount ordered pursuant to plea agreement............ z

FINE

The above fine includes costs of incarceration and/or supervision in the amount of $

The defendant shail pay interest on any fine of more than $2,500, unless the fine is paid in full before the fifteenth day

after the date of judgment, pursuant to 18 U.S.C. era). All of the payment options on Sheet 5, Part B may be subject to

penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g).

“> The court determined that the defendant does not have the ability to pay interest and it is ordered that:

The interest requirement is waived.

The interest requirement is modified as follows:

(ICI

RESTITUTION

~~ The determination of restitution is deferred . An Amended Judgment in a Criminal Case

——~ weitiibe entered after such a determination.

x The defendant shall make restitution to the following payees in the amounts listed below.

If the defendant makes a partial payment, each payee shall receive an approximately proportional payment unless

specified otherwise in the priority order or percentage payment column below.

Priority Order

* Total Amount of yi ng

Name of Payee Restitution Ordered

Western Union $3,000.00 $3,000.00

Food Lion, Incorporated $286.96 $286.96

7

rotten Pe" azesos = g 3206.96

Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses

AQ 2450 (Rev. &/86) Judgment in a Cnminai Case for, ations: Sheet 5. Part & - Communal Monetary Penaites

Judgment-Page 6 of 6

DEFENDANT: Cornell Johnson

CASE NUMBER: 1:93CR00138-002

SCHEDULE OF PAYMENTS

Payments shall be applied in the following order: (1) assessment; (2) restitution: (3) fine principal; (4) cost of prosecution;

(5) interest; (6) penalties.

Payment of the total fine and other criminal monetary penalties shall be due as follows:

a xX in full immediately; or

B —S$ immediately, balance due (in accordance with C, D, or E); or

C ™ not later than ; or

D ~~ in installments to commence day(s) after the date of this judgment. In the event the entire amount of

— criminal monetary penalties imposed is not paid prior to the commencement of supervision, the U.S. probation

officer shall pursue collection of the amount due, and shall request the court to establish a payment schedule if

appropriate; or

E — in (e.g. equal, weekly, monthly, quarterly) installments of $

“over a period of year(s) to commence day(s) after the date of this judgment.

The defendant will receive credit for all payments previously made toward any criminal monetary penalties imposed.

Special instructions regarding the payment of criminal monetary penalties:

Payments shall be made to: U.S. DISTRICT COURT, 800 MARKET ST., SUITE 130, KNOXVILLE, TN 37902

The defendant shail pay the cost of prosecution.

The defendant shall forfeit the defer.dant's interest in the following property to the United States:

Appendix p.8