# Joint Appendix — Johnson v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0387%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2000 - **Citation:** 529 U.S. 694 ## Text FILED NOY 1285) No. 99-5153 OFFICE OF THE CLERK In The Supreme Court of the United States « CORNELL JOHNSON, Petitioner, UNITED STATES, Respondent. > On Writ Of Certiorari To The United States Court Of Appeals For The Sixth Circuit ¢ JOINT APPENDIX + Lean J. Prewitt *SetH P. WAXMAN *Rita C. LaLumia Solicitor General Davip F. Ness Department of Justice Federal Defender Washington, DC 20530 Services of Eastern Telephone: (202) 514-2217 Tennessee, Inc. Fax: (202) 514-2255 707 Georgia Avenue, Counsel for Respondent Suite 203 Chattanooga, TN 37402 Telephone: (423) 756-4349 Fax: (423) 756-4345 Counsel for Petitioner *Counsel of Record Petition For Certiorari Filed July 2, 1999 Certiorari Granted October 18, 1999 COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 ~ BEST AVAILABLE COPY ® TABLE OF CONTENTS Relevant Docket Entries Indictment Plea Agreement Judgment and Commitment Petition for Warrant Or Summons for Offender Under Supervision Hearing on Revocation Proceedings, April 30, 1998, (Tr. pp.1-10) Dispositional Report Judgment for Revocation of Supervised Release Order Affirming District Court’s Judgment of the United States Court of Appeals for the Sixth Circuit, April 29, 1999 Order of the Supreme Court of the United States —s certiorari and leave to proceed in orma pauperis, October 18, 1999 Date 1993 Oct. 26 Dec. 15 1994 March 8 1998 March 5 April 30 April 30 May 1 May 5 RELEVANT DOCKET ENTRIES Proceedings Indictment filed Plea Agreement filed Judgment and Commitment Petition for Warrant or Summons for Offender Under Supervision Supervised Release Revocation Hearing Dispositional Report filed Judgment for Revocation of Supervised Release Notice of Appeal by Defendant filed Order Judgment of the United States Court of Appeals for the Sixth Circuit Affirming the District Court’s Judgment UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA UNITED STATES OF AMERICA Vv. SEAN ANTHONY JESSIE; CORNELL JOHNSON; and BRICE WILLIAM MYLES CR-1-93-138 Edgar ce eee eee ee” INDICTMENT (Filed Oct. 26, 1993) COUNT ONE The Grand Jury charges that on or about October 22, 1993, in the Eastern District of Tennessee and elsewhere, the defendants, SEAN ANTHONY JESSIE, CORNELL JOHNSON, and BRICE WILLLIAM MYLES, did conspire with each other and others to the Grand Jury unknown, to commit an offense under 18 U.S.C. § 1029(a), that is, the defendants did knowingly and with intent to defraud produce, use and traffic in one or more counterfeit access devices, which conduct affected interstate commerce, and did engage in conduct in furtherance of that offense; all in violation of 18 U.S.C. 1029(b)(2). COUNT TWO The Grand Jury further charges that on or about October 22, 1993, in the Eastern District of Tennessee and elsewhere, the defendants, SEAN ANTHONY JESSIE, oe Pe Per Pew + CORNELL JOHNSON, and BRICE WILLLIAM MYLES, knowingly and with intent to defraud attempted to pro-_ duce, use and traffic in one or more counterfeit access devices, which conduct affected interstate commerce, in violation of 18 U.S.C. 1029(a)(1); all in violation of 18 U.S.C. § 1029(b)(1). A TRUE BILL: /s/ Rebecca Illegible GRAND JURY FOREMAN /s/ Carl K. Kirkpatrick CARL K. KIRKPATRICK United States Attorney 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE at CHATTANOOGA UNITED STATES OF AMERICA Vv. CORNELL JOHNSON ) ) CR-1-93-138 ) ) ) PLEA AGREEMENT (Filed Dec. 15, 1993) Pursuant to Rule 11 of the Federal Rules of Criminal Procedure, the United States of America, by Carl K. Kirkpatrick, United States Attorney for the Eastern Dis- trict of Tennessee, and the defendant, CORNELL JOHN- SON, and his attorney, C. Leland Davis, have agreed upon the following: The defendant will plead guilty to Count One of the indictment, charging him with a violation of 18 U.S.C. § 1029. Pursuant to Rule 11(e)(1)(A), Federal Rules of Crimi- nal Procedure, the United States agrees that it will move the court at the time of sentencing to dismiss Count Two. Pursuant to Rule 11(e)(1)(C), Federal Rules of Crimi- nal Procedure, the parties agree that the appropriate dis- position of this case would be a sentence within the lower one-third of the applicable sentencing guideline range as to any fine and imprisonment. The defendant agrees to make full and complete res- titution to any victims in this case in such amounts and in such manner as the court may determine. Po ARAC™ oIth < R6 Ne O Rp Sich Sone aha Atlin oe De a The special assessment of $50 per count shall be paid no later than the day of the plea proceeding. The defendant acknowledges that he understands that his case is governed by the sentencing guidelines, and that he has discussed the guidelines with his attor- ney. In consideration of the United States’ acceptance of this agreement, the defendant expressly waives the right to appeal his conviction or sentence on any ground, including any appeal right conferred by 18 U.S.C. § 3742. The defendant further agrees not to file any motions or pleadings pursuant to 28 U.S.C. § 2255. Thus, the defen- dant knowingly, intentionally, and voluntarily waives his right to collaterally attack the plea being offered in the instant case. The defendant further acknowledges that a breach of this clause of the plea agreement (like the defendant's breach of any other clause of the plea agree- ment) would leave the United States free to withdraw from the plea agreement. Based upon the evidence presently available to the parties, the parties view this case as one where the defen- dant has accepted responsibility for his involvement in this offense. Should the defendant withdraw from this plea agree- ment for any reason, any statement made by the defen- dant subsequent to his signing this plea agreement may be used for any purpose by the United States. By his signature to this agreement, the defendant acknowledges that he has discussed with his attorney each provision of this agreement and understands the potential consequences of each provision of this agree- ment. The parties further agree that this plea agreement constitutes the full and complete agreement and under- standing between the parties concerning the defendant's guilty plea to the above-referenced charge, and that there are no other agreements, promises, undertakings, or understandings between the defendant and the United States. CARL K. KIRKPATRICK United States Attorney /s/ Gary S. Humble Gary S. Humble Assistant U.S. Attorney /s/ Cornell Johnson 11/30/93 Cornell Johnson Date Defendant /s/ C. Leland Davis 11/30/93 C. Leland Davis Date Attorney for Defendant Ee hs at PTA yt . 7 UNITED STATES DISTRICT COURT EASTERN District of TENNESSEE UNITED STATES OF AMERICA V. CORNELL JOHNSON (Name of Defendant) THE DEFENDANT: JUDGMENT IN A CRIMINAL CASE (For Offenses Committed On or After November 1, 1987) (Filed Mar. 8, 1994) Case Number: CR-1-93-00138-002 C. Leland Davis, c/o District Attorney’s Office 600 Market Street Chattanooga, TN 37402 Appointed Counsel Defendant's Attorney [X] pleaded guilty to countts) One (1) of the Indictment [ ] was found guilty on count(s) after a plea of not guilty. Accordingly, the defendant is adjudged guilty of such count(s), which involve the following offenses: 8 Date Title & Nature of Offense Count Section Offense Concluded Numbers 18: Did conspire to commit Oct. 22, 1993 Count 1029(b)(2) an offense under 18 One (1) USC Section 1029(a), that is, knowingly with intent to defraud pro- duce, use and traffic in one or more counterfeit access devices, which conduct affected inter- state commerce, and did engage in conduct in furtherance of that offense. The defendant is sentenced as provided in pages 2 through 5 _ of this judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984. { ] The defendant has been found not guilty on count(s) and is discharged as to such count(s). {X] Countts} Two (2) (is)(are) dismissed on the motion of the United States. {X] It is ordered that the defendant shall pay a special assessment of $50.00 , for count(s) One (1) of the Indictment , which shall be due [X] imme- diately | |] as follows: IT IS FURTHER ORDERED that the defendant shall notify the United States attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Defendant’s Soc. Sec. No.: Monday, February 28, 250-04-0337 1994 Defendant's Date of Birth: Date of eg of May 9, 1954 ntence Defendant’s Mailing /s/ R. Allan pager Signature of Judicial Address: Offi 1762 N. Springdale Place = Florence, SC 29506 R. ALLAN EDGAR, , UNITED STATES Detendant s Residence DISTRICT JUDGE Address: N & Title of ludicial 1762 N. Springdale Place said poo oF Judicia Florence, SC 29506 _— 3/8/94 Date IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of Twenty-five (25) months upon Count One (1) of the Indictment { ] The court makes the following recommendations to the Bureau of Prisons: [X] The defendant is remanded to the custody of the United States marshal. { ] The defendant shall surrender to the United States Marshal for this district. [ ] at a.m./p.m. on [ ] as notified by the United States marshal. 10 { ] The defendant shall surrender for service of sen- tence at the institution designated by the Bureau of Prisons. { ] before 2 p.m. on : [ ] as notified by the United States marshal. [ ] as notified by the probation office. RETURN I have executed this judgment as follows: Defendant delivered on to _at , with a ceriified copy of this judgment. United States Marshal By Deputy Marshal SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of Three (3) years upon Count One (1) of the Indictment. While on supervised release, the defendant shall not commit another federal, state, or local crime and shall not illegally possess a controlled substance. The defendant shall comply with the standard conditions that have been adopted by this court (set forth below). If this judgment imposes a restitution obligation, it shall be a condition of 11 supervised release that the defendant pay any such resti- tution that remains unpaid at the commencement of the term of supervised release. The defendant shall comply with the following additional conditions: [X] The defendant shall report in person to the proba- tion office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. [X] The defendant shall pay any fimes/restitution that remain unpaid at the commencement of the term of supervised release. {X] The defendant shall not possess a firearm or destructive device. The defendant shall provide the probation officer with access to any requested financial information. The defendant shall not incur new credit charges or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule. The defendant shall participate in a program of test- ing and/or treatment for drug and/or alcohol abuse, as directed by the probation officer, until such time as he is released from the program by the probation officer. The defendant shall participate in a program of mental health treatment as directed by the probation officer, until such time as he is released from the program by the probation officer. 12 STANDARD CONDITIONS OF SUPERVISION While the defendant is on supervised release pur- suant to this judgment, the defendant shall not commit another federal, state or local crime. In addition: 1) the defendant shall not leave the judicial district without the permission of the court or probation officer; 2) the defendant shall report to the probation officer as directed by the court or probation officer and shall submit a truthful and complete written report within the first five days of each month; 3) the defendant shall answer truthfully all inquiries by th» probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occu- pation unless excused by the probation officer for schooling, training, or other acceptable reasons; 6) the defendant shall notify the probation officer within 72 hours of any change in residence or employment; 7) the defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distrib- ute, or administer any narcotic or other controlled substance, or any paraphernalia related to such sub- stances, except as prescribed by a physician; 8) the defendant shall not frequent places where con- trolled substances are illegally sold, used, distrib- uted, or administered; ee ee 9) 10) 11) 12) 13) 13 the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; the defendant shall notify the probation officer within seventy-two hours of being arrested or ques- tioned by a law enforcement officer; the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; as directed by the probation officer, the defendant shall notify third parties of risks that may be occa- sioned by the defendant’s criminal record or per- sonal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such noti- fication requirement. 14 RESTITUTION AND FORFEITURE RESTITUTION [X] The defendant shall make restitution to the follow- ing persons in the following amounts: Name of Payee Amount of Restitution Food Lion, Incorporated $ 663.96 Attn: Check Recovery P. O. Box 1549 Salisbury, NC 28145-1549 Western Union $3,000.00 Attn: Ruth Williams Western Union Financial Services 13022-A Hollenberg Drive Bridgeton, MO 63044 TOTAL $3,663.96 Any payment made that is not payment in full shall be divided proportionately among the payees named above. Payments of restitution are to be made to: | ] the United States Attorney for transfer to the payee(s). [X] the payee(s), through the office of the U. S. Dis- trict Court Clerk Restitution shall be paid: [X] in full immediately. [ ] in full not later than { ] in equal monthly installments over a period of ____ months. The first payment is due on the date of this judgment. Subsequent payments are due monthly thereafter. 15 { ] in installments according to the following sched- ule of payments: Any payment shall be divided proportionately among the payees named unless otherwise specified here. FORFEITURE [ ] The defendant is ordered to forfeit the following property to the United States: STATEMENT OF REASONS [X] The court adopts the factual findings and guideline application in the presentence report. OR { ]} The court adopts the factual findings and guideline application in the presentence report except (see attachment, if necessary): Guideline Range Determined by the Court: Total Offense Level: 11 Criminal History Category: Vv Imprisonment Range: 24 to 30 months Supervised Release Range: 2 to 3 _ years Fine Range: $ 2,000.00 to $ 20,000.00 [X] Fine is waived or is below the guideline range because of the defendant's inability to pay. Restitution: $ 3,663.96 { ] Full restitution is not ordered for the fol- lowing reason(s): 16 [X] The sentence is within the guideline range, that range does not exceed 24 months, and the court finds no reason to depart from the sentence called for by application of the guidelines. OR { ] The sentence is within the guideline range, that range exceeds 24 months, and the sentence is imposed for the following reason(s): OR The sentence departs from the guideline range. [ ] upon motion of the government, as a result of defendant’s substantial assistance. { ] for the following reason(s): * * * | 17 United States District Court for Eastern District of Tennessee Petition for Warrant or Summons for Offender Under Supervision (Filed Mar. 5, 1998) Case Number: CR-1-93-138-002 Name of Offender: Cornell Johnson Name of Sentencing Judicial Officer: Honorable R. Allan Edgar Date of Original Sentence: 02/28/94 Original Offense: Conspiracy to Produce, Use and Traffic in Counterfeit Access Devices in violation of Title 18 U.S.S.C. § 1029(b)(2) Class: D Felony Criminal History Category: V Original Sentence: Twenty-five month term of incarcera- tion to be followed by a three year term of supervised release with the conditions that 1) The defendant pay restitution in the amount of $663.96 to Food Lion, Inc. of Salisbury, N.C. and $3000 to Western Union of Bridgeton, MO, for a total of $3663.96, 2) The defendant provide the probation officer with access to any requested financial information, 3) The defendant not incur any new lines of credit or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule, 4) The defendant participate in a program of testing and/or drug treatment as directed by the probation officer, until such time as he is released from the program by the 18 probation officer, 5) The defendant participate in a pro- gram of mental health treatment as directed by the proba- tion officer, until such time as he is released from the program by the probation officer. Type of Supervision: Supervised Release Date Supervision Commenced: Date Supervision Expires: 08/14/95 08/13/98 Assistant U.S. Attorney: Defense Attorney: Gary Humble C. Leland Davis PETITIONING THE COURT [X] To issue a warrant { ] To issue a summons The probation officer believes that the offender has vio- lated the following condition(s) of supervision: Violation Number Nature of Noncompliance I VIOLATION OF GENERAL CON- DITIONS OF SUPERVISION: The defendant shall not commit another federal, state or local crime. According to U.S. Probation Officer, Joe Barton, Atlanta, Georgia, Mr. Cornell Johnson was arrested on 03/03/96, by the Newport News, Virginia Police Department and charged with three counts of Forgery and three counts of Uttering a Forged Instrument in violation of Virginia State Code § 18.2-172, after attempting to pass a counter- feit payroll check, using a ficticious [sic] name and identi- fication card issued by the State of Virginia, to a Food 19 Lion food store, located in Newport News. This consti- tutes a violation of the offender’s conditions of super- vised release. According to Detective Linda Spruill, of the Newport News, Virginia Police Department, Johnson is now being held in the Newport News city jail without bond. II VIOLATION OF STANDARD CONDITION #1: The defendant shall not leave the judicial district without the permission of the Court or probation officer. Cornell Johnson traveled outside the Northern District of Georgia, which is the district of supervision at this time, without written travel authorization from the probation office. This unauthorized travel is evidenced by johnson’s arrest in Newport News, Virginia on March 3, 1996, for Forgery and Uttering a Forged Instrument. U.S. Probation Officer Recommendation: That a warrant be issued and the defendant be ordered to appear in court, before Honorable R. Allan Edgar for a hearing to determine whether the term of supervision should be revoked. Respectfully submitted by, /s/ Don Johnson Donald E. Johnson U.S. Probation Officer Date: March 5, 1996 20 APPROVED BY: /s/ Leslie A. Cory 3-5-96 Leslie A. Cory, Date: Supervising U.S. Probation Officer ORDER OF COURT; A warrant is to be issued and the defendant is ordered to appear in Court for a hearing to determine whether the term of supervision should be revoked. So ordered. ENTER. /s/ John Y. Powers The Honorable John Y. Powers 3-5-96 Date 21 [p. 1] IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA UNITED STATES OF AMERICA, CR-1-93-138 (Filed May 18, 1998) Plaintiff, -versus- CORNELL JOHNSON, Defendant. Chattanooga, Tennessee April 30, 1998 BEFORE: THE HONORABLE R. ALLAN EDGAR UNITED STATES DISTRICT JUDGE APPEARANCES: FOR THE PLAINTIFF: JOHN MacCOON, ESQ,, | Assistant United States Attorney 1110 Market Street, Suite 301 Chattanooga, Tennessee 37402 FOR THE DEFENDANT: PERRY H. PIPER, ESQ., Federal Defender Services Flatiron Building, Suite 203 Chattanooga, Tennessee 37402 22 REVOCATION HEARING VOLUME I PAGES 1 through 10 [p. 2} THE CLERK: Criminal Action 1-93-138, United States of America versus Cornell Johnson. THE COURT: Okay. Mr. Johnson, it’s been alleged here that you have violated the terms of your supervised release and there is a petition to revoke that supervised release before the Court. Are you aware of that? THE DEFENDANT: Yes, sir. THE COURT: And it’s charged here that you have violated the condition of your supervised release which provides that you shall not commit another fed- eral, state or local crime. And it’s also alleged that you violated the condition you should not leave the judicial district without the permission of the Court or the appli- cable probation officer. And, essentially, as I understand it, the allegation is that you left, I think you were being supervised in Georgia at the time in Georgia, and you left there and went up to Virginia and committed some crimi- nal offenses of which you were convicted. That’s what the allegation is. Mr. Piper, I guess I'll ask you first what your client's position is with respect to whether or not he has violated the terms of his supervised release? MR. PIPER: We admit as to both violations, Judge. THE COURT: Okay. Is that correct, Mr. John- son? 23 THE DEFENDANT: Yes, sir. [p. 3] THE COURT: Okay. The next question then becomes what is to be done about it. The policy statement | think in the case are 18 to 24 months. Did you want to respond to that? MR. PIPER: Thank you, Judge. I do think the statutory maximum is also 24 months as well. THE COURT: I think that’s right. MR. PIPER: Class D felony. Your Honor, I’ve had about three opportunities to speak with Mr. Johnson since he was brought in last week. He’s a very bright man. He has a bachelor’s degree I think from South Carolina, is that correct? THE DEFENDANT: Yes. MR. PIPER: University of. I think his intentions have always been to go straight here. I don’t know what little glitch caught up with him, what little bump in the road caught up with him, made him go to Newport News, Virginia and do these things. He is genuinely sorry that he did, not just for the fact that he got caught. He intends, whatever happens here today, he knows he’s going to get time, and he intends to go straight once he does get out of here. He’s had previous difficulties with the law and legal system. As I stated, Mi. Johnson has a desire and the flesh is willing and I hope the will is there to get out and go straight and get a job, further his education. [p. 4] THE COURT: Mr. Johnson, is there any- thing that you want to say to the Court? 24 THE DEFENDANT: Yes, sir. Your Honor, you know, I regret the choices that I made which have brought me here today. And when I got out of prison the last time I was very optimistic, Your Honor, very optimis- tic about going back into the community, gaining stable employment and getting on with my life. As a matter of fact, while I was in the halfway house, I took a test with the civil service, state civil service office in Georgia and I scored a 95 on the senior caseworker exam. And I was interviewed for the job after I left the halfway house and a week after my interview I was offered the position and they called my probation officer and told him that I had been offered a position in Augusta and I would have to transfer and I was all excited. And, I mean, he’s not here to defend himself and I’m not saying it’s his fault that I got in trouble, you know, I could never say that because that would be irresponsible and that would be passing the buck per se, but I called him and told him and he contacted the Department of Family and Children Services in Augusta and he went into my criminal past. And, of course, I went into my criminal past but not indepth during the interview. And, of course, they called me back and subsequently said they had to withdraw the offer. [p. 5] And, you know, needless to say I felt crushed, and I was devastated, but I can’t blame him for that. And, of course, being arrested in Virginia and doing time there, I mean, I regret all of that and I’m truly sorry for what I did, but I look forward to the future also. I’ve already started making plans to reenter graduate school once I’m released from prison, what I plan is while I’m working in Unicorp in prison, if I get to a halfway house, save money 25 there enough to get my foot in the door to pursue a master’s degree in rehabilitation counseling at the Uni- versity of South Carolina. If I weren’t standing here today, I would still, I still plan to do that regardless of what happens today, nothing is going to stop me from doing that. I’m passionate about it. It’s something I really want to do and it’s something I can feel myself doing sincerely. That's all I’ve got to say. THE COURT: Mr. MacCoon. MR. MacCOON: Nothing to add, Your Honor. Thank you. THE COURT: Mr. Johnson, I remember you were here the last time and I was optimistic at that time because you are an intelligent person. You’ve got some ability. But for some reason you keep doing the same type of criminal offense. | mean, you’ve had a previous, now, two previous federal convictions in addition to numerous state convictions, and of [p. 6] course, you do have some restitution yet to pay as a result of this offense, the offense that you were convicted here of originally which, you know, you're going to have to pay. I hope you can go to graduate school, and I’m all for that, I encourage you to do that, but, unfortunately, you do have a few obliga- tions to meet too as well. We're faced here with, of course, there is a need, at least a short one, to protect the public from the kind of activity that you have engaged in. I certainly hope that you will be able to keep this, keep from doing this in the future and surely you can see that this is a dead end street. THE DEFENDANT: Yes, sir. 26 THE COURT: But, anyway, pursuant to the Sen- tencing Reform Act of 1984, it is the judgment of the Court that the defendant’s supervised release is revoked and the defendant, Cornell Johnson, is hereby committed to the custody of the Bureau of Prisons to be imprisoned for a term of 18 months. It is further ordered that the defendant shall pay restitution, and I recognize you did pay some restitution. THE DEFENDANT: Yes, sir, I did the best I could, Your Honor. THE COURT: You did pay some of it, but not all of it. THE DEFENDANT: Minimum wage jobs, I did the best I could. [p. 7] THE COURT: Right. Restitution amount $286.96 to Food Lion, Incorporated, and 3,000 to Western Union of Bridgeton, Missouri for a total of $3,286.96. This figure represents the balance due on the restitution origi- nally ordered in Case No. 1-93-CR-138. The restitution shall be paid in full immediately through the United States District Court. Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 12 months. Within 72 hours of release from the custody of the Bureau of Prisons, the defendant shall report in person to the probation office in the district to which you're released. Within 72 hours, you understand? THE DEFENDANT: Yes, sir. : 27 THE COURT: While on supervised release, the defendant shall not commit another federal, state, or local crime, shall comply with all the standard conditions that have been adopted by this Court in its Local Rule 83.10, and shall not illegally possess a controlled substance. The defendant shall not possess a firearm as defined in 18 U.S.C. 921. There are some other special conditions of super- vised release, drug testing, substance abuse testing at the discretion of the probation officer, a program of mental health treatment as directed by the probation officer. [p. 8] Paying your restitution. Access to any requested finan- cial information by the probation officer. And you would not open any new lines of credit or obtain any credit without the approval of the probation officer. Any questions? MR. PIPER: Judge, Mr. Johnson and I obviously discussed once again the supervised release issue. | would ask that the dispositional report be made a part of the record and would note his original sentence as reflected in the dispositional report is February 28th of ‘94. It’s a Class D felony. And I do believe Mr. Johnson, and I discussed it with him yesterday, obviously, about the ex post facto issue, and I would certainly hope that the Supreme Court would decide this issue one of these days. THE COURT: Are you appealing all of these? 28 MR. PIPER: Unfortunately the last two I’ve sent up have been very short briefs, mine are generally short anyway. I feel like I have an obligation to do it, Judge. THE COURT: Even though the law in the circuit is clearly to the contrary? MR. PIPER: Ms. Prewitt and I had a discussion about that recently and I question whether or not | should continue to do it, she believes that I should, so... THE COURT: Okay. I mean, that’s fine. [p. 9] MR. PIPER: We would ask - THE COURT: I thought you all had something better to do over there. MR. PIPER: I have plenty more better to do. I have plenty much to do, and I agree, but we would ask the dispositional report be made a part of the record, Your Honor, and raise that objection to the ex post facto issue. THE COURT: The dispositional report to be made a part of the record? MR. PIPER: For appeal, yes, sir. And the reason why I ask for that is because the 6th Circuit, it’s generally not a part of the record on appeal, and that’s the way that I can get into evidence the fact that his conviction - THE COURT: Okay. MR. PIPER: Thank you. THE COURT: It’s part of the record, so ordered, let it be done. If you want to appeal this, Mr. Johnson, we 29 were just talking about that here, if you want to appeal this, you can do so, discuss it with Mr. Piper, and a notice of appeal has to be filed within 10 days to start that process. All right. Anything else? Okay. We'll be in recess until 10 o'clock. MR. PIPER: Thank you. END OF REVOCATION HEARING [p. 10] I, Shannan Andrews, do hereby certify that | reported in machine shorthand the proceedings in the above-styled cause held April 30, 1998, and that this transcript is an accurate record of said proceedings. /s/ Shannan Andrews Shannan Andrews Official Court Reporter 30 U.S. Probation Office United States District Court for the Eastern District of Tennessee DISPOSITIONAL REPORT Name of Offender: Cornell Johnson Case Number: CR-1:93-138-002 Name of Sentencing Judicial Officer: Honorable R. Allan Edgar Date of Original Sentence: 02/28/94 Original Offense: Conspiracy to Produce, Use, and Traffic in Counterfeit Access Devices in violation of Title 18 U.S.C. § 1029(b)(2) Class: D Felony Criminal History Category: V Original Sentence: Twenty-five month term of incarcer- ation to be followed by a three year term of supervised release with the following conditions: (1) The defendant shall pay restitution in the amount of $663.96 to Food Lion, Inc. of Salisbury, N.C., and $3,000 to Western Union of Bridgeton, MO, for a total of $3663.96; (2) The defen- dant shall provide the probation officer with access to any requested financial information; (3) The defendant shall not incur any new lines of credit or open additional lines of credit without the approval of the probation officer unless the defendant is in compliance with the installment payment schedule; (4) The defendant shall participate in a program of testing and/or drug treatment as directed by the probation officer; (5) The defendant 31 shall participate in a program of mental health treatment as directed by the probation officer. Type of Supervision: Supervised Release Date Supervision Commenced: 8/14/95 Date Supervision Expires: 08/13/98 Assistant U.S. Attorney: Gary Humble Defense Attorney: Perry Piper _———————————————————————————————_ ________ Violation Number Nature of Noncompliance I VIOLATION OF GENERAL CONDITIONS OF SUPERVISION: The defendant shall not commit another federal, state, or local crime. Il VIOLATION OF STANDARD CONDITION #1: The defendant shall not leave the judicial district without the permission of the Court or probation officer. STATUTORY PROVISIONS: Title 18 U.S.C. § 3583(e)(3) provides that the court may revoke a term of supervised release and require the defendant to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of super- vised release without credit for time previously served on post release supervision, if it finds by a preponderance of the evidence that the defendant violated a condition of supervised release. The defendant was originally convicted of a Class D felony, therefore, upon revocation the court may not impose a sentence of imprisonment greater than two years. Also, pursuant to 18 U.S.C. § 3583(h), and the 1997 32 Sixth Circuit ruling in U.S. v. Page, 96-4329, the court may reimpose supervised release after revocation, even in cases in which the original crime occurred prior to enact- ment of 18 U.S.C. § 3583(h), provided that any term of imprisonment that the defendant is ordered to serve is less than the maximum term of imprisonment authorized by statute under 18 U.S.C. § 3583(e)(3). If supervised release is reimposed in this case the statute sets a maxi- mum term of 3 years. POLICY STATEMENT/GUIDELINE PROVI- SIONS: Mr. Johnson’s violations consist of Grade B vio- lations as defined in U.S.S.G. Pursuant to 7B1.3(a)(1), upon a finding of a Grade B violation, the court shall revoke supervised release. With a Criminal History Category of V and Grade B violations, in accordance with U.S.S.G. § 7B1.4(a), Mr. Johnson’s range of imprisonment is 18-24 months. U.S.S.G. § 7B1.3 provides that where supervised release is revoked and the term of imprisonment imposed is less than the maximum term of imprisonment imposable upon revocation, the court may include a requirement that the defendant be placed on a term of supervised release upon release from imprisonment. The length of such a term of supervised release shall not exceed the term of supervised release authorized by statute for the offense that resulted in the original term of supervised release, less any term of imprisonment that was imposed upon revocation of supervised release. Pursuant to U.S.S.G. § 7B1.3(d) any restitution previously imposed in connection with the sentence for which revocation is ordered that remains unpaid shall be 33 ordered to be paid in addition to the sanctions deter- mined under § 7B1.4 (Term of Imprisonment). The offender has an outstanding restitution balance of $3,286.96. HISTORY OF SUPERVISION/COMPLIANCE WITH CONDITIONS: Mr. Johnson's supervision term com- menced on August 18, 1995. He was on supervision for only seven months before violating the conditions of his supervision by engaging in criminal conduct which sub- sequently resulted in his being convicted on new felony and misdemeanor charges, and being sentenced to a term of imprisonment in Virginia. Additionally, Mr. Johnson traveled outside the jurisdiction of his supervision with- out the permission of his probation officer as is evidenced by his arrest in March 1996 in Newport News, Virginia. Prior to the above-cited violations, the offender appeared to be in compliance with his supervision conditions, including his monthly restitution payment schedule of $50. He did, however, experience some difficulty main- taining steady, stable employment. COURT ACTION TO DATE: Mr. Johnson was arrested in March 1996, in Newport News, Virginia on a total of ten counts of Fraud and Uttering charges. He was convicted in the Circuit Court of Newport News, Virginia on July 25, 1996 for the offenses of Forgery (Docket No. 33726-96), and Uttering (Docket No. 33725-96). He was sentenced to a ten year term of imprisonment for each law violation. The court suspended the execution of nine years of his sentence for 34 the offense of Forgery and nine and one-half years for the offense of Uttering. The offender was also convicted on July 26, 1996 in the Newport News General District Court for the offenses of Obtaining Money by False Pretense (Docket No. 96-005237), and Larceny by False Pretense (Docket No. 96-005239). He was sentenced to serve a 12-month jail term on each charge. The remaining criminal charges against the offender in Newport News, Virginia were nolle prosequi. The offender was in the custody of the State of Virginia until his release to the supervised release detainer on March 31, 1998. A removal hearing was held in Newport News that date, at which time the Court ordered that Mr. Johnson be returned to the Eastern District of Tennessee to answer to the charge of violating his conditions of supervised release. On April 24, 1998, the offender appeared before Magis- trate John Y. Powers in the Eastern District of Tennessee for a preliminary hearing at which time he was ordered to be detained pending a revocation hearing. Mr. Johnson is scheduled to appear for a revocation hearing on May 30, 1998 at 9:30 a.m. before U.S. District court Judge R. Allan Edgar. Respectfully submitted, /s/ Angela W. Hayes Angela W. Hayes U.S. Probation Officer eee eo SE 35 APPROVED: /s/ Leslie A. Cory 4/28/98 Leslie A. Cory Date Supervising U.S. Probation Officer VIOLATION WORKSHEET 1. DEFENDANT Cornell Johnson 2. DOCKET NUMBER (Yr/Sequence Def. No.) cr-1-93-138-002 3. DISTRICT / OFFICE Eastern District of Tennessee - Chattanooga 4. ORIGINAL SENTENCE DATE 02/28/94 (if different from above): 5. ORIGINAL DISTRICT /OFFICE Eastern District of Tennessee - Chattanooga ORIGINAL DOCKET NUMBER (Yr/Sequence Def. 0.) Same 7. List each violation and determine the applicable grade (See 7B1.1): Violations Grade 1. The defendant shall not commit another federal, state, or local crime. B 10. 11. 36 The defendant shall not leave the judicial district without the permission of the Court or probation officer. Cc Most Serious Grade of Violation (See 7B1.1(b)): B Criminal History Category (See 7B1.4(a)): Vv Range of Imprisonment (See 7B1.4(a)): 18-24 months Sentencing Options for Grade B and C Violations Only: (CHECK APPROPRIATE BOX) (A) If the minimum term of imprisonment determined under 7B1.4 (Term of Imprison- ment) is at least one month but not more than six months, 7B1.3(c)(1) provides sen- tencing options to Imprisonment. (B) If the minimum term of imprisonment determined under 7B1.4 (Term of Imprison- ment) is more than six months but not more than ten months, 7B1.2(c)(2) provides sen- tencing options to imprisonment. (C) If the minimum term of imprisonment determined under 7B1.4 (Term of Imprison- ment) is more than ten months, no sentenc- ing options to imprisonment are available. |>< DEFENDANT Cornell Johnson 12. Unsatisfied Conditions of Original Sentence List any restriction, fine, community confinement, home detention, or intermittent confinement previ- ously imposed in connection with the sentence for which revocation is ordered that remains unpaid or unserved at the time of revocation (See 7B1.3(d)): 13. 14. 15. 37 Restitution $3,386.96 Community Confinement Fine $ Home Detention Other Intermittent Confinement Supervised Release If probation is to be revoked, determine the length, if any, of the term of supervised release according to the provisions of 5D1.1-1.3 (See 7B1.3(g)(1)). Term to years If supervised release is revoked and the term of imprisonment imposed is less than the maximum term of imprisonment imposable upon revocation, the defendant may, to the extent permitted by law, be ordered to recommense supervised release upon release from imprisonment (See 18:3583(e) and 7B1.3(g)(2)). Period of supervised release to be served following release from imprisonment: Up to 36 months less any term of imprisonment imposed provided that the term of imprison- ment is less than 24 months. Departure List aggravating and mitigating factors that may warrant a sentence outside the applicable range of imprisonment: Official Detention Adjustment (See 7B1.3(e)): months days. 38 UNITED STATES DISTRICT COURT Eastern District of Tennessee at Chattanooga UNITED STATES JUDGMENT IN A OF AMERICA CRIMINAL CASE Vv. (Filed May 1, 1998) Cornell Johnson (For Revocation of Probation or Supervised Release) (For Offenses Committed On or After November 1, 1987) Case Number: 1:93CR00138-002 Perry H. Piper Defendant's Attorney THE DEFENDAN:: [X] 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 Nature of Violation Number Violation Occurred 1 The defendant failed to com- 03/03/1996 ply with the condition that he not commit another fed- eral, state, or local crime. 2 The defendant failed to com- 03/03/1996 ply with the condition that he not leave the judicial dis- trict without the permission of the Court or probation officer. 39 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 violation(s) condition. IT IS FURTHER ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. Defendant’s Soc. Sec. No.: 04/30/1998 250-04-0337 Date of Imposition of Defendant’s Date of Birth: Judgment 05/09/1954 /s/ R. Allen Edgar Signature of Judicial Officer pi nec » Rasitenee R. ALLAN EDGAR 845 North Central Avenue United States District #615 Judge Name & Title of Judicial Hapevill GA 30354 Officer Defendant’s USM No.: 84669-071 Defendant’s Mailing May 1, 1998 Address: Date 845 North Central Avenue #615 Hapevill GA 30354 40 IMPRISONMENT The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for aterm of 18 month(s) [ ] The court makes the following recommendations to the Bureau of Prisons: [X] The defendant is remanded to the custody of the United States Marshal. [ ] The defendant shall surrender to the United States Marshal for this district: { } at a.m./p.m. on ; [ ] as notified by the United States Marshal. { ] The defendant shall surrender for service of sen- tence at the institution designated by the Bureau of Prisons: [ ] before 2 p.m. on { ] as notified by the United States Marshal. [ ] as notified by the Probation or Pretrial Services Office. RETURN I have executed this judgment as follows: et ate es nal - se 41 Defendant delivered on to at , with a certified copy of this judgment. UNITED STATES MARSHAL By Deputy U.S. Marshal SUPERVISED RELEASE Upon release from imprisonment, the defendant shall be on supervised release for a term of 12 month(s). The defendant shall report to the probation office in the district to which the defendant is released within 72 hours of release from the custody of the Bureau of Prisons. The defendant shall not commit another federal, state, or local crime. The defendant shall not illegally possess a controlled substance. For offenses committed on or after September 13, 1994: The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from imprisonment and at least two periodic drug tests thereafter, as directed by the probation officer. _[ ] The above drug testing condition is suspended based on the court’s determination that the defendant poses a low risk of future substance abuse. (Check, if applicable.) [X] The defendant shall not possess a firearm as defined in 18 U.S.C. § 921. (Check, if applicable.) 42 If this judgment imposes a fine or a restitution obligation, it shall be a condition of supervised release that the defendant pay any such fine or resti- tution that remains unpaid at the commencement of the term of supervised release in accordance with the Schedule of Payments set forth in the Criminal Mon- etary Penalties sheet of this judgment. The defendant shall comply with the standard condi- tions that have been adopted by this court (set forth below). The defendant shall also comply with the addi- tional conditions on the attached page (if indicated below). See Special Conditions of Supervision - Page 4 STANDARD CONDITIONS OF SUPERVISION 1) the defendant shall 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 shall answer truthfully all inquiries by the probation officer and follow the instructions of the probation officer; 4) the defendant shall support his or her dependents and meet other family responsibilities; 5) the defendant shall work regularly at a lawful occu- pation unless excused by the probation officer for schooling, training, or other acceptable reasons; el ani rge e Cepe lint eRe Os wth ee ee 6) 7) 8) 9) 10) 11) 12) 13) 43 the defendant shall notify the probation officer ten days prior to any change in residence or employ- ment; the defendant shall refrain from excessive use of alcohol; the defendant shall not frequent places where con- trolled substances are illegally sold, used, distrib- uted, or administered; the defendant shall not associate with any persons engaged in criminal activity, and shall not associate with any person convicted of a felony unless granted permission to do so by the probation officer; the defendant shall permit a probation officer to visit him or her at any time at home or elsewhere and shall permit confiscation of any contraband observed in plain view by the probation officer; the defendant shall notify the probation officer within seventy-two hours of being arrested or ques- tioned by a law enforcement officer; the defendant shall not enter into any agreement to act as an informer or a special agent of a law enforcement agency without the permission of the court; as directed by the probation officer, the defendant shall notify third parties of risks that may be occa- sioned by the defendant's criminal record or per- sonal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such noti- fication requirement. 44 SPECIAL CONDITIONS OF SUPERVISION The defendant shall participate in a program of testing and treatment for drug and alcohol abuse as directed by the probation officer, until such time as the defendant is released from the program by the probation officer. The defendant shall participate in a program ot 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 supervi- sion. 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. CRIMINAL MONETARY PENALTIES The defendant shall pay the following total criminal mon- etary penalties in accordance with the schedule of pay- ments set forth on Sheet 5, Part B. Assessment Fine Restitution Totals: $ $ aS 3,286.96 [ ] If applicable, restitution amount ordered pursuant to plea agreement vodccevtcovesesteue $ ee so oes Leek ie te ome _— = 45 FINE The above fine includes costs of incarceration and/or supervision in the amount of $ The defendant shall 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. § 3612(f). All of the payment options on Sheet 5, Part B may be subject to penalties for default and delin- quency 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 fol- lows: RESTITUTION | ] The determination of restitution is deferred . An Amended Judgment in a Criminal Case will be entered after such a determination. [X] The defendant shall make restitution to the follow- ing 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 per- centage payment column below. 46 Priority *Total Amount of Order or Name of Amount Restitution Percentage Payee of Loss Ordered of Payment Western Union $3,000.00 $3,000.00 Food Lion, Incorporated $286.96 $286.96 Totals: $ 3,286.96 $ 3,286.96 * Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994 but before April 23, 1996. 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 mone- tary penalties shall be due as follows: A [X] in full immediately; or B[i] $ immediately, balance due (in accor- dance 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 commence- ment of supervision, the U.S. probation officer shall pursue collection of the amount due, and 47 shall request the court to establish a payment schedule if appropriate; or Et] in (e.g. equal, weekly, monthly, quarterly) installments of $ over a period of __ year(s)tocommence _ 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 shall pay the cost of prosecution. { ] The defendant shall forfeit the defendant’s interest in the following property to the United States: Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of imprisonment payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal monetary penalty payments, except those payments made through the Bureau of Prisons’ Inmate Financial Responsibility Program are to be made as directed by the court, the probation officer, or the United States attorney. 48 No. 98-5664 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, Vv. ) ) ) ) CORNELL JOHNSON, Defendant-Appellant. Before: MARTIN, Chief Judge; BOGGS and COLE, Circuit Judges. Cornell Johnson, represented by counsel, appeals a district court judgment imposing a new term of super- vised release, following the revocation of his original term of supervised release. The parties have expressly waived oral argument, and this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a). In 1994, Johnson pleaded guilty to conspiring to defraud, produce, use, and traffic in one or more counter- feit access devices, in violation of 18 U.S.C. § 1029(b)(2). The district court sentenced him to twenty-five months of imprisonment, plus three years of supervised release. While on supervised release, Johnson committed various state law offenses in Virginia, and he left the judicial district without permission. During a revocation hearing, Johnson admitted that he had violated the terms of his original supervised release, and the district court sen- tenced him to eighteen months of imprisonment, plus 49 twelve months of supervised release. Johnson has filed a timely appeal, arguing that the new term of supervised release violates the Ex Post Facto Clause. 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, 511 U.S. 1043 and 1146 and 513 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 retroac- tively 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 Ex Post Facto Clause. See United States v. Abbington, 144 F.3d 1003, 1005 (6th Cir.), cert. denied, 119 S. Ct. 344 (1998); United States v. Page, 131 F.3d 1173, 1175 (6th Cir. 1997), cert. denied, 119 S. Ct. 77 (1998). Although several other circuits have concluded that the application of § 3583(h) does violate the Ex Post Facto Clause, see United States v. Lominac, 144 F.3d 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.3d 1394, 1397-99 (9th Cir. 1997); United States v. Meeks, 25 F.3d 1117, 1119 (2d Cir. 1994), these cases are not control- ling authority in this circuit. Accordingly, we affirm the district court’s judgment. ENTERED BY ORDER OF THE COURT /s/ Leonard Green Clerk United States ON PETITION FOR WRIT OF CERTIORARI to the United States Court of Appeals for the Sixth Circuit. ON CONSIDERATION of the motion for leave to proceed herein in forma pauperis and of the petition for writ of certiorari, it is ordered by this Court that the motion to proceed in forma pauperis be, and the same is hereby, granted; and that the petition for writ of certiorari be, and the same is hereby, granted. October 18, 1999 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0387%3A4. Public record. Not legal advice.