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 ...