Argued December 9, 2013
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Illinois. No. 12 CR 40004 -- J. Phil Gilbert, Judge.
For United States of America, Plaintiff - Appellee: George A. Norwood, Attorney, Office of The United States Attorney, Benton, IL.
For Montarico C. Johnson, Defendant - Appellant: Daniel T. Hansmeier, Attorney, Daniel J. Hillis, Attorney, Office of The Federal Public Defender, Springfield, IL; John C. Taylor, Attorney, Office of The Federal Public Defender, Urbana, IL.
Before WILLIAMS, SYKES, and HAMILTON, Circuit Judges.
Williams, Circuit Judge.
After a jury convicted him of distributing three grams of crack cocaine and being a felon in possession of a firearm, Montarico Johnson received a 210-month sentence. He appeals on several grounds. The government had exercised peremptory challenges against two female prospective jurors, but Johnson failed to show a prima facie case of discrimination in jury selection on the basis of gender so the court did not need to evaluate the reasons for the government's strikes. As for his sentence, which was largely driven by his career offender status, we find that the district court understood Johnson's request for a below-guidelines sentence but rejected it in light of Johnson's criminal history, and we affirm his prison term. The special condition of supervised release requiring that Johnson participate in a sex offender treatment program is another story, however. Johnson's only sex-related offense came fifteen years earlier when he received a misdemeanor conviction and a probation-only sentence because, at the age of seventeen, he had sex with a girl over thirteen and less than seventeen years old. Guided in part by decisions we made after the sentencing in this case took place, we conclude that the record does not support a connection between mandatory sex-offender treatment and the 18 U.S.C. § 3553(a) factors. We therefore vacate this condition of supervised release, as well as other conditions not mentioned in the oral pronouncement of sentence. In all other respects we affirm his conviction and sentence, as we discuss in more detail below.
Montarico Johnson was charged in a superseding indictment with one count of distributing crack cocaine, in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C), and one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The panel of prospective jurors consisted of thirty-three people. Sixteen members of the venire were male, and seventeen were female. The judge used a system to select the jury in which the jurors were chosen in panels of four. With the government proceeding first, one party tendered to the other party a group of four venirepersons. The other party could use peremptory challenges as it saw fit and then tender back four venirepersons. This process continued until both sides agreed on four jurors, and those four were placed on the jury. The process continued until twelve jurors were selected.
The government tendered two men and two women in the first round, the defense had no objection, and those four persons were seated on the jury. The defense then tendered the next four venirepersons. The government exercised a peremptory challenge on venireperson #7, who was male. The government then tendered back two males and two females, there were no objections, and those jurors were seated.
In the next round, the government exercised peremptory challenges on venirepersons #11 (male), #12 (female), #14 (female), and #15 (male). The defense asked the court to question the government as to its reasons for using peremptory challenges to ensure the government was not using its challenges on the basis of gender or race. The court responded that two of the persons struck were male and two were female, and all were of the same race, so there was no basis for the defense's request. The prosecutor offered to make a record of his reasons for exercising the peremptory challenges, and the judge stated he left that decision up to the government. The prosecutor then stated venireperson #11 had previously found a defendant
not guilty, #12 recounted that she testified for a defendant in a criminal case, #14 stated that she works with troubled children, including those involved with drugs, and #15 has a cousin who ...