USA v. Daniel Ira Johnson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-11576
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL IRA JOHNSON,
a.k.a. "Shotta",
a.k.a. "Lajon Black",
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Florida
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2 Opinion of the Court 23-11576
D.C. Docket No. 6:22-cr-00046-PGB-EJK-1
____________________
Before WILSON, J ILL PRYOR , and L UCK , Circuit Judges.
PER CURIAM:
Daniel Johnson appeals his 90-month sentence, which the
district court imposed after he pled guilty via a plea agreement to
three counts in an indictment. For the reasons that follow, we va-
cate his sentence and remand for resentencing.
Johnson pled guilty to transferring a firearm to a nonresi-
dent, in violation of 18 U.S.C. § 922(a)(5) (Count One), conspiracy
to commit wire fraud, in violation of 18 U.S.C. §§ 1343, 1349
(Count Three), and aggravated identity theft, in violation of 18
U.S.C. § 1028A(a)(1) (Count 5). Count One carried a 5-year statu-
tory maximum, Count Three carried a 20-year statutory maxi-
mum, and Count Five carried a 2-year mandatory minimum,
which was required to be imposed consecutively to any other
terms of imprisonment. In anticipation of sentencing, a probation
officer prepared a presentence investigation report in which the of-
ficer calculated a Sentencing Guidelines range of 78 to 97 months’
imprisonment on Counts One and Three and a sentence of 2 years
for Count Five. At sentencing, the district court adopted this calcu-
lation. The court imposed a sentence of 90 months of imprison-
ment, explaining that 66 months were for Counts One and Three
to be served concurrently and that the remaining 24 months were
for Count Five.
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23-11576 Opinion of the Court 3
Johnson has appealed. He argues that the district court
plainly erred in imposing a 66-month term of imprisonment for
Counts One and Three despite Count One having a statutory max-
imum of 60 months.1 See 18 U.S.C. §§ 922(a)(5), 924(a)(1)(D). The
government agrees, and we do too. “A general sentence is an undi-
vided sentence for more than one count that does not exceed the
maximum possible aggregate sentence for all the counts but does
exceed the maximum allowable sentence on one of the counts.”
United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir. 2005) (inter-
nal quotation marks omitted). “Such sentences are per se illegal in
this circuit, and require a remand.” Id.; see Benson v. United States,
332 F.2d 288, 291 (5th Cir. 1964) (“One thing sure about the so-
called ‘general sentence’ for a total term greater than the maximum
of one count but less than the aggregate of all maximums is that no
one—accused, reviewing Court, prison authorities, or sentencing
Court—knows what the real sentence is.”).2
1 We usually review de novo the legality of a sentence. United States v. Moriarty,
429 F.3d 1012, 1023 (11th Cir. 2005). But where, as here, a defendant fails to
object to the sentence’s legality before the district court, we review only for
plain error. Id. We find plain error only when: (1) an error has occurred; (2)
the error was plain; (3) the error affected the defendant’s substantial rights;
and (4) the error seriously affected the fairness of the judicial proceedings.
United States v. Malone, 51 F.4th 1311, 1319 (11th Cir. 2022). A defendant’s sub-
stantial rights are affected if the error “affected the outcome of the district
court proceedings.” Id. (internal quotation marks omitted).
2 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed
down prior to October 1, 1981.
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4 Opinion of the Court 23-11576
In light of this error, we remand for resentencing (and we
reject the government’s invitation for a more limited remand).
“[W]e have adopted a holistic approach to resentencing, treating a
criminal sentence as a package of sanctions that may be fully revis-
ited upon resentencing.” United States v. Martinez, 606 F.3d 1303,
1304 (11th Cir. 2010) (emphasis omitted) (internal citation and quo-
tation marks omitted). This approach, often called the sentencing
package doctrine, is grounded in the notion that, “especially in the
[Sentencing G]uidelines era, sentencing on multiple counts is an in-
herently interrelated, interconnected, and holistic process which
requires a court to craft an overall sentence—the ‘sentence pack-
age’—that reflects the guidelines and the relevant [18 U.S.C.]
§ 3553(a) factors.” United States v. Fowler, 749 F.3d 1010, 1015 (11th
Cir. 2014). So, when a conviction or sentence for one or more of
the component counts is vacated, the district court “should be free
to reconstruct the sentencing package . . . to ensure that the overall
sentence remains consistent with the guidelines, the § 3553(a) fac-
tors, and the court’s view concerning the proper sentence in light
of all the circumstances.” Id. (relating to vacatur of a conviction);
see United States v. Pearson, 940 F.3d 1210, 1215 n.10 (11th Cir. 2019)
(relating to vacatur of a sentence); United States v. Yost, 185 F.3d
1178, 1181 (11th Cir. 1999) (same).3
3 Johnson also argues that the district court erred in calculating the loss
amount that produced his Sentencing Guidelines range and in failing to orally
pronounce 13 standard conditions of supervised release, in violation of our
decision in United States v. Rodriguez, 75 F.4th 1231 (11th Cir. 2023). Johnson’s
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23-11576 Opinion of the Court 5
In sum, we vacate Johnson’s sentence. We remand for the
district court to resentence him.
VACATED AND REMANDED.
plea agreement contained an appeal waiver, and the government has argued
that these challenges are barred by that waiver. Because we remand for a de
novo resentencing, we need not decide whether the appeal waiver in Johnson’s
plea agreement bars his challenges, or, if not, whether the challenges have
merit. See Yost, 185 F.3d at 1181 (explaining that the effect of a decision vacat-
ing a sentence and remanding for resentencing is that “the sentence becomes
void in its entirety and the district court is free to revisit any rulings it made at
the initial sentencing”).
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