United States v. Henry D. Johnson

Court Case Details
  • Case Name: United States v. Henry D. Johnson
  • Court: Court of Appeals for the Seventh Circuit
  • Filed: October 21, 2014
  • Precedential Status: Unpublished
  • Docket #: 13-2913
  • Judges: PerCuriam
  • Nature: criminal
Court Case Opinion


To be cited only in accordance with

Fed. R. App. P. 32.1

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted October 21, 2014

Decided October 21, 2014


RICHARD A. POSNER, Circuit Judge

JOEL M. FLAUM, Circuit Judge

DAVID F. HAMILTON, Circuit Judge

No. 13-2913


Appeal from the United States District
Court for the Central District of Illinois.


No. 04-30046-001


Sue E. Myerscough,




Henry Johnson was a high-ranking member in the Black P-Stones Nation gang,

responsible for a large-scale crack, cocaine, and marijuana distribution outfit in Quincy,
Illinois. He was convicted by a jury in 2005 of engaging in a continuing criminal
enterprise, 21 U.S.C. § 848, using a telephone to facilitate a drug offense, 21 U.S.C.
§ 843(b), conspiring to distribute narcotics, 21 U.S.C. § 841(a)(1) and § 841(b)(1)(A),
maintaining a drug-involved premises, 21 U.S.C. § 856(a)(2), distributing marijuana, 21
U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(D), and aiding and abetting the distribution

No. 13-2913

Page 2

of crack cocaine, 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(C). Johnson’s appointed
attorney asserts that the appeal, now Johnson’s fourth, is frivolous and seeks to
withdraw. See Anders v. California, 386 U.S. 738, 744 (1967). Counsel submitted a brief
that explains the nature of the case and addresses the issues that an appeal of this kind
might be expected to involve. We invited Johnson to respond, see C


R. 51(b), but he


did not. Because counsel’s analysis appears to be thorough, we limit our review to the
subjects he discusses. See United States v. Bey, 748 F.3d 774, 776 (7th Cir. 2014); United
States v. Wagner
, 103 F.3d 551, 553 (7th Cir. 1996).

Johnson was initially sentenced, in this protracted case, to life imprisonment. We

affirmed his convictions but remanded for resentencing in light of Kimbrough v. United
, 552 U.S. 85, 110 (2007). United States v. Johnson, 584 F.3d 731, 740 (7th Cir. 2009).
After the district court upheld the life sentence, we remanded again because the court
did not appropriately account for the factors set forth in 18 U.S.C. § 3553(a). United
States v. Johnson
, 635 F.3d 983, 990 (7th Cir. 2011). The court resentenced Johnson to 360
months. He appealed and we granted the parties’ joint motion for remand so that the
judge could address Johnson’s argument for a reduced sentence based on the disparity
in punishment between powder cocaine and crack. United States v. Johnson, No. 12-3254
(7th Cir. March 7, 2013). On remand again the judge sentenced Johnson to 293 months.

Counsel first considers challenging the accuracy of Johnson’s sentence, but

properly concludes that such a challenge would be frivolous. Counsel correctly points
out that none of Johnson’s sentences exceeded a statutory maximum penalty and that
Johnson waived any challenge to the calculation of his guideline range when he
confirmed at sentencing that he had the opportunity to read the presentence report,
knew of his right to object to its contents, and stated that he had no objections. United
States v. Jones
, 635 F.3d 909, 915 n.6 (7th Cir. 2011); United States v. Brodie, 507 F.3d 527,
531 (7th Cir. 2007).

Counsel also properly determined that it would be frivolous to challenge the

reasonableness of Johnson’s sentence. A below-guidelines sentence, as Johnson’s 293-
month sentence was, is presumptively reasonable. Rita v. United States, 551 U.S. 338, 347
(2007); United States v. Martinez, 650 F.3d 667, 671 (7th Cir. 2011). Counsel has not
identified a reason to disturb that presumption, nor can we. The district court
acknowledged “the improvement in [Johnson’s] life, . . . [his] attitude and [his] behavior
in prison,” but noted he was the leader of a long-lasting, extensive drug conspiracy and
had continued his gang association in prison. See 18 U.S.C. § 3553(a)(1).

No. 13-2913

Page 3

Counsel’s motion to withdraw is GRANTED, and the appeal is DISMISSED.