Appeal from the United States District Court for the Northern District of Indiana, Hammond Division. No. 95 CR 70 James T. Moody, Judge.
Before Cudahy, Ripple, and Kanne, Circuit Judges.
This case involves an appeal from a 25-month sentence given to the defendant-appellant, Ronnie Lee Johnson. Johnson bases his appeal on two sections of the U.S. Sentencing Guidelines. He argues 1) that the District Court erred when it increased his offense level under sec. 3B1.3 for an abuse of trust, and 2) that the District Court incorrectly applied sec. 5G1.3, which governs sentencing when a defendant is already subject to an ongoing term of imprisonment. On the sec. 5G1.3 issue, we find that the District Court properly applied the Sentencing Guidelines. We have no occasion to pass on the abuse of trust issue because we conclude, based on our review of the record as a whole, that any error on that issue would not have affected Johnson's sentence. We therefore affirm the District Court's judgment.
Ronnie Lee Johnson operated an employee leasing and payroll service business in Hammond, Indiana. Trucking companies throughout the United States would arrange for their employees to become the employees of Johnson's business, thereby taking advantage of Indiana's low workers' compensation rates. Johnson, however, never paid over $1 million in federal taxes that had been withheld from employee paychecks. The Government charged Johnson in the U.S. District Court for the Northern District of Indiana for willful failure to collect and pay over taxes in violation of 26 U.S.C. sec. 7202. Johnson pleaded guilty pursuant to a plea agreement that provided that Johnson was to receive the minimum sentence under the Sentencing Guidelines.
The District Court's calculations put Johnson at offense level 20 (which included a two-level enhancement for abuse of trust) and Criminal History Category (CHC) II, suggesting a sentencing range of 37-46 months. When Johnson was sentenced in Indiana, however, he had already served 16 months of a 37-month sentence arising from a conviction in the U.S. District Court for the Middle District of Florida. That sentence was for wire and mail fraud and was also related to Johnson's employee leasing and payroll service business. Because Johnson was subject to an undischarged term of imprisonment, the Indiana federal court had to apply sec. 5G1.3 of the Sentencing Guidelines. Based on those calculations, the District Court departed downward, sentencing Johnson to 25 months in prison to run concurrently with the 21 months remaining on his existing sentence. The District Court also ordered Johnson to pay $1,135,484.81 in restitution to the Internal Revenue Service (IRS).
Under 18 U.S.C. sec. 3742(a), we ordinarily do not have jurisdiction to review a sentence in which a district court departed downward from the applicable guideline range. See United States v. Burnett, 66 F.3d 137, 139 (7th Cir. 1995); Bischel v. United States, 32 F.3d 259, 265 n.6 (7th Cir. 1994). Unless the court violated the law or incorrectly applied the Sentencing Guidelines (as opposed to merely exercising the court's discretion), a defendant generally may not appeal from a downward departure. See Burnett, 66 F.3d at 139.
Johnson's first assertion of error, however, is that the District Court miscalculated his offense level--an application error that we certainly may review. Johnson argues that the District Court erred when it found that Johnson abused a position of trust and therefore enhanced Johnson's offense level from 18 to 20 under sec. 3B1.3 of the Sentencing Guidelines. As we explain below, however, we find that any such error was harmless because the District Court would have imposed the same sentence even under Johnson's proposed offense level. When the court went through the mechanics of applying sec. 5G1.3, the two-point enhancement for abuse of trust in effect dropped out of the court's sentencing calculations. Our inquiry, therefore, will focus on Johnson's second assertion of error, which involves the District Court's grouping of offenses when applying sec. 5G1.3.
Both Johnson and the Government agree that sec. 5G1.3(c) was the proper starting point for the District Court. In the 1995 version of the Sentencing Guidelines (which was the version that applied to Johnson), sec. 5G1.3(c) provides that "the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense." The commentary to the Sentencing Guidelines (which generally binds the federal courts like the Guidelines themselves, see Stinson v. United States, 113 S. Ct. 1913, 1919 (1993)) further provides that "[t]o achieve a reasonable punishment and avoid unwarranted disparity," courts applying sec. 5G1.3(c) should consider the standard sentencing criteria enumerated in 18 U.S.C. sec. 3553(a) as well as "be cognizant" of:
(a) the type . . . and length of the prior undischarged sentence;
(b) the time served on the undischarged sentence and the time likely to be ...