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United States v. Johnson

July 18, 2008

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
THOMAS JOHNSON, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 99 CR 785-David H. Coar, Judge.

The opinion of the court was delivered by: Bauer, Circuit Judge.

ARGUED FEBRUARY 22, 2008

Before EASTERBROOK, Chief Judge, and BAUER and POSNER, Circuit Judges.

For a third time, Thomas Johnson requests that we review his sentence. In 2000, a jury convicted Thomas Johnson of conspiracy to defraud the United States in violation of 18 U.S.C. § 371, and two counts of producing fraudulent Social Security cards in violation of 18 U.S.C. §§ 1028(a)(1) and (2). The district court sentenced Johnson to 60 months' imprisonment on Count 1 and 78 months' imprisonment on Counts 2 and 3, to run concurrently. On Johnson's first appeal, we remanded the case for resentencing, finding that the district court had used the incorrect definition of "relevant conduct" under U.S.S.G. § 1B1.3(a)(2)) in reaching John-son's sentence. See United States v. Johnson, 347 F.3d 635, 638-40 (7th Cir. 2003). After applying the correct definition of "relevant conduct" on remand, Judge Coar imposed the same sentence. On Johnson's second appeal, we ordered a limited remand so that Judge Coar could inform us whether he considered the sentence to be appropriate, given that the Sentencing Guidelines are no longer mandatory. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); United States v. Paladino, 401 F.3d 471, 483-85 (7th Cir. 2005). Judge Coar answered in the affirmative, and Johnson appeals.

I. BACKGROUND

Pursuant to our limited Paladino remand, on August 24, 2005, Judge Coar held an initial status hearing to set briefing deadlines and discuss representation issues.*fn1 Johnson's attorney from his second appeal and a federal public defender were present. The following colloquy took place:

The Court: So, Mr. Johnson, is it your wish that [your current attorney] not represent you?

Johnson: That's absolutely correct.

The Court: All right. And [the public defender] is appointed to represent you-

Johnson: No, I don't want Mr.-I don't need representation.

The Court: You don't have a choice.

Johnson: I do have a choice. I don't have to have him represent me.

The Court: You want to represent ...


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