United States of America v. Andrew J. Johnston

NONPRECEDENTIAL DISPOSITION
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 November 22, 2023*
Decided November 27, 2023
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 23-2792
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW J. JOHNSTON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-cr-00517
Rebecca R. Pallmeyer, Chief Judge.
No. 23-3032
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW J. JOHNSTON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-cr-00517
Rebecca R. Pallmeyer, Chief Judge.
* These successive appeals have been submitted to the original panel under Operating Procedure 6(b). We
have unanimously agreed to decide these cases without argument because the briefs and record
adequately present the facts and legal arguments, and argument would not significantly aid the court.
See Fed. R. App. P. 34(a)(2)(C).

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Nos. 23-2792, 23-3032 and 23-3066 Page 2
No. 23-3066
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANDREW J. JOHNSTON,
Defendant-Appellant.
Appeal from the United States District
Court for the Northern District of Illinois,
Eastern Division.
No. 1:17-cr-00517
Rebecca R. Pallmeyer, Chief Judge.
O R D E R
Ever since his 2019 conviction for bank robbery, Andrew Johnston has been
peppering the district court with motions and appealing from adverse decisions. We
resolved two of his appeals earlier this year and three more in 2022. All were frivolous.
Today we take up three more of his appeals, which are likewise frivolous.
In No. 23-2792 Johnston contests two decisions of the district court, one denying
what Johnston styles as a Rule 33 motion for a new trial and the other asking the judge
to modify the conditions of his supervised release. The district court ruled that the
former motion is a disguised collateral attack, which requires appellate permission (as
Johnston already had filed and lost a motion under 28 U.S.C. §2255), and that the latter
request is premature.
The first of these rulings is unambiguously correct. A mis-captioned Rule 33
motion is properly dismissed when the prisoner seeks the sort of relief available only
under §2255. Genuine Rule 33 motions based on newly discovered evidence must be
filed within three years of the jury’s verdict. Rule 33 motions based on any other
reasons must be filed within 14 days of the verdict—and as Johnston did not submit any
newly discovered evidence bearing on his guilt, the 14-day time limit applies. (The
three-year limit also has expired.)
The second ruling was within the district court’s discretion. Although 18 U.S.C.
§3583(e)(2) allows a judge to modify the terms and conditions of supervised release “at
any time”, the statute does not compel a judge to act on the merits whenever a prisoner
asks. Judges may postpone decision until closer to release, when the appropriateness of
conditions is more readily gauged. See, e.g., United States v. Siegel, 753 F.3d 705, 717 (7th
Cir. 2014). Johnston wants to contest a condition that affects his possession of firearms
and is authorized by 18 U.S.C. §3563(b)(8). Whether and when such conditions may be
imposed after New York State Rifle and Pistol Association v. Bruen, 142 S. Ct. 2111 (2022), is
a question yet to be resolved by the Supreme Court. No post-Bruen appellate decision

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Nos. 23-2792, 23-3032 and 23-3066 Page 3
addresses the validity of §3563(b)(8). Nor does any decision, before or after Bruen, hold
that the Second Amendment prevents disarming convicted bank robbers.
In No. 23-3032 Johnston contends that the district court should have used Fed. R.
Crim. P. 35 to correct what he calls a “clerical error”: a restitution award that was not
announced in open court at the time of sentencing. The district judge patiently pointed
out to Johnston that she did not award restitution in this case but simply reiterated that
restitution awarded after his prior criminal convictions remains due. There is no error,
let alone one correctable under Rule 35.
In No. 23-3066 Johnston asks us to overrule multiple decisions limiting the sort of
arguments that may justify compassionate relief under 18 U.S.C. §3582(c)(1)(A). Here
Johnston’s problem is that none of the decisions he wants us to overrule affected the
district court’s disposition. After carefully analyzing Johnston’s arguments, the judge
wrote that even if he has established an “extraordinary and compelling” reason for
early release (and the judge thought that he has not), such a reason is not a sufficient
condition for release. It remains essential to analyze the considerations specified by
18 U.S.C. §3553(a). The judge did so and concluded that Johnston’s record of recidivism
would make early release imprudent. That decision does not reflect an abuse of
discretion. Johnston, who seems fixated on his argument for overruling, does not even
try to contest the district judge’s exercise of discretion, which makes his appeal
pointless and frivolous. An appellant who does not contest all of the reasons for an
adverse decision has no chance of prevailing on appeal.
With today’s decision, this court has resolved five of Johnston’s appeals in 2023
alone. All have been frivolous. This cavalcade of motions and appeals must cease. We
now warn Johnston that future frivolous appeals will cause the court to award financial
sanctions, which if unpaid will lead the court to treat his future appeals as
automatically dismissed, without the need for briefing or a judicial order. See Alexander
v. United States, 121 F.3d 312 (7th Cir. 1997).
AFFIRMED

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