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United States v. Johnson

United States Court of Appeals, Fifth Circuit

November 22, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee
v.
RODNEY ANDREW JOHNSON, Defendant-Appellant

          Appeals from the United States District Court for the Western District of Texas

          Before SOUTHWICK, GRAVES, and ENGELHARDT, Circuit Judges.

          KURT D. ENGELHARDT, CIRCUIT JUDGE

         Rodney Andrew Johnson pleaded guilty, pursuant to a plea agreement, to conspiracy to possess with intent to distribute fentanyl, methamphetamine, and cocaine, and possession of a firearm and ammunition by a felon. The district court imposed an upward variance from the Guidelines range and sentenced Johnson to concurrent terms of 100 months of imprisonment and three years of supervised release. Johnson appeals the procedural reasonableness of his above-Guidelines sentence, contending that the district court miscalculated his criminal history score and relied on erroneous facts related to his criminal history. We AFFIRM.

         I.

         By indictment filed on March 21, 2017, Johnson was charged with conspiracy to possess with intent to distribute a substance of fentanyl, methamphetamine, and cocaine, in violation of 21 U.S.C. § 841 & 846 (count one); possession of a firearm in furtherance of drug trafficking, in violation of 18 U.S.C. § 924(c) (count two); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (count four).[1] Johnson pleaded guilty, pursuant to a plea agreement, to counts one (conspiracy) and four (felon in possession).

         As calculated in the revised presentence report (PSR), Johnson's total offense level was 25, which, when combined with a criminal history category of IV, yielded a Guidelines range of 84 to 105 months of imprisonment. However, at sentencing, the district court sustained Johnson's objection to the PSR's drug-quantity calculation and determined that the correct total offense level was 19, resulting in a Guidelines range of 46 to 57 months of imprisonment. Although the district court sustained Johnson's objection, the court noted that the drug-quantity calculation was "immaterial to the sentence [it] anticipate[d]." The court then informed Johnson that it would impose an upward variance:

I'm clearly thinking of a sentence of 18, United States Code, 3553(a) in this case for that which I've already stated. This gentleman has been in the drug business for a long time. Every time he's caught - all three times he's been caught, he has the guns. And he hasn't improved.

         Reviewing Johnson's criminal history, the court referred to Johnson's 2005 cocaine-and-weapon arrest. The court continued, "In 2006, when you had dope and you were carrying a weapon, you - and there was an obliterated serial number, but for the instance of this particular case I don't think that's consequential. So that's what I'm worried about."

         The district court varied upward from the Guidelines range and sentenced Johnson to concurrent terms of 100 months of imprisonment and three years of supervised release. In explaining its reasons for the sentence imposed, the court noted the seriousness of Johnson's offense, his extensive criminal history, and his lack of respect for the law. The court also noted the "need to give a sentence that deters the criminal conduct of the defendant and to protect the public." Johnson objected to the sentence, arguing that "a guideline sentence is appropriate and a greater than guideline sentence is unreasonable." The court overruled the objection. Johnson timely filed a notice of appeal.

         On appeal, Johnson challenges the procedural reasonableness of his above-Guidelines sentence. First, Johnson contends that the district court plainly erred in assessing two criminal history points for his 2005 Texas conviction for unlawfully carrying a weapon because it resulted in less than one year and one month of imprisonment and occurred more than 10 years prior to the instant offense. Second, he asserts the district court plainly erred by imposing an above-Guidelines sentence based on erroneous facts related to his criminal history.

         II.

         A district court commits a significant procedural error at sentencing if, as relevant here, it improperly calculates the Guidelines range or "select[s] a sentence based on clearly erroneous facts." Gall v. United States, 552 U.S. 38, 51 (2007). As Johnson concedes, because he did not object to procedural errors he now raises on appeal, our review is for plain error. See United States v. Lopez-Velasquez, 526 F.3d 804, 806 (5th Cir. 2008) ("When a defendant fails to raise a procedural objection below, appellate review is for plain error only.").

         To prevail on plain error review, Johnson must show a forfeited error that is clear or obvious and that affects his substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If he makes such a showing, our court has the discretion to correct the error but should do so only if it "seriously affects the fairness, integrity or public reputation ...


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