          Case: 15-11390   Date Filed: 01/12/2016   Page: 1 of 7


                                                       [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 15-11390
                       Non-Argument Calendar
                     ________________________

                 D.C. Docket No. 1:14-cr-20630-RLR-1



UNITED STATES OF AMERICA,

                                                             Plaintiff-Appellee,


                                 versus


DANA JOHNSON,

                                                        Defendant-Appellant.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                           (January 12, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.



PER CURIAM:



      Dana Johnson appeals his conviction and 120-month sentence for possession

of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). No

reversible error has been shown; we affirm.



                                         I.



      Johnson first challenges the district court’s denial of his motion for judgment

of acquittal. Johnson contends that the evidence presented at trial was insufficient

to establish that he possessed knowingly a firearm.

      We review de novo the denial of a motion for judgment of acquittal based on

sufficiency of the evidence, “considering the evidence in the light most favorable

to the Government, and drawing all reasonable inferences and credibility choices

in the Government’s favor.” United States v. Capers, 708 F.3d 1286, 1296 (11th

Cir. 2013). “We will not reverse unless no reasonable trier of fact could find guilt

beyond a reasonable doubt.” United States v. Farley, 607 F.3d 1294, 1333 (11th

Cir. 2010).


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      Viewing the evidence in the light most favorable to the government,

sufficient evidence exists from which a reasonable juror could conclude that

Johnson was guilty beyond a reasonable doubt. At trial, a police officer testified

that he saw Johnson holding a handgun with an extended magazine and saw

Johnson make a “tossing motion” with the hand that held the gun. The jury was

entitled to believe the officer’s testimony and, because the officer’s testimony was

not “incredible as a matter of law,” we are bound by the jury’s credibility

determination. See United States v. Calderon, 127 F.3d 1314, 1325 (11th Cir.

1997) (“[C]redibility determinations are the exclusive province of the jury.”).

      The officer’s testimony was sufficient by itself for a reasonable juror to

conclude that Johnson possessed knowingly a firearm. In addition, the officer’s

testimony was corroborated by other evidence presented at trial, including

evidence that (1) a handgun matching the officer’s description was found in the

area where Johnson was seen making a “tossing motion;” (2) a mixture of DNA,

including Johnson’s DNA type, was found on the handgun; and (3) Johnson’s cell

phone contained recent photographs of Johnson holding a firearm with an extended

magazine. On this record, sufficient evidence exists to sustain Johnson’s

conviction.




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                                           II.

      Johnson next contends that the district court erred in enhancing his base

offense level, pursuant to U.S.S.G. § 2K2.1(a)(1). Johnson argues -- on appeal

and for the first time -- that his earlier state convictions for resisting an officer with

violence and for possessing cannabis with intent to sell constituted no “crime of

violence” or “controlled substance offense” for purposes of section 2K2.1(a)(1).

      Johnson concedes that his argument is foreclosed by this Court’s decisions

in United States v. Romo-Villalobos, 674 F.3d 1246, 1249 (11th Cir. 2012)

(concluding that a Florida conviction for resisting an officer with violence

constitutes a “crime of violence” under the guidelines), and United States v. Smith,

775 F.3d 1262, 1268 (11th Cir. 2014) (concluding that a conviction under Fla. Stat.

§ 893.13(1) is a “controlled substance offense” under the guidelines). Thus,

Johnson cannot show that the district court plainly erred in applying a sentencing

enhancement under section 2K2.1(a)(1).



                                           III.



      Johnson also challenges both the procedural and substantive reasonableness

of his sentence. He contends that his sentence is unreasonable procedurally

because the district court calculated improperly his guidelines range. Johnson next


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argues that his sentence is unreasonable substantively because the district court

failed to consider adequately certain mitigating factors.

       We review the reasonableness of a final sentence under a deferential abuse-

of-discretion standard. Gall v. United States, 128 S.Ct. 586, 591 (2007). The party

challenging the reasonableness of the sentence bears the burden of establishing that

the sentence is unreasonable in the light of both the record and the 18 U.S.C. §

3553(a) factors. 1 United States v. Talley, 431 F.3d 784, 788 (11th Cir. 2005).

       In reviewing a sentence, we first examine whether the district court

committed a significant procedural error, such as calculating improperly the

guidelines range, failing to consider the section 3553(a) sentencing factors, basing

the sentence on clearly erroneous facts, or failing to explain adequately the chosen

sentence. Gall, 128 S.Ct. at 597. After we have determined that a sentence is

procedurally sound, we review the sentence’s substantive reasonableness under the

totality of the circumstances. Id. A sentence substantively is unreasonable if it

“fails to achieve the purposes of sentencing as stated in section 3553(a).” Talley,

431 F.3d at 788.

       About procedural reasonableness, Johnson argues that the district court

calculated improperly his guidelines range. We have already rejected -- as
1
 Under section 3553(a), a district court should consider the nature and circumstances of the
offense, the history and characteristics of the defendant, the need for the sentence to provide
adequate deterrence, respect for the law, and protection of the public, policy statements of the
Sentencing Commission, provision for the medical and educational needs of the defendant, and
the need to avoid unwarranted sentencing disparities. See 18 U.S.C. § 3553(a)(1)-(7).
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foreclosed by this Court’s decisions in Romo-Villalobos and in Smith -- Johnson’s

argument that the district court enhanced improperly Johnson’s base offense level.

Given Johnson’s total offense level of 28 and his criminal history category of III,

the district court calculated properly Johnson’s sentencing range as between 97 and

120 months’ imprisonment. 2 Johnson has failed to demonstrate that his sentence is

unreasonable procedurally.

       Johnson has also not shown that his 120-month sentence was substantively

unreasonable. First, Johnson’s sentence was within the applicable guidelines; we

ordinarily expect such a sentence to be reasonable. See Talley, 431 F.3d at 788.

       In determining Johnson’s sentence, the district court considered expressly

the section 3553(a) factors. Johnson has an extensive criminal history -- beginning

when Johnson was ten years’ old -- including convictions for drug offenses,

attempted murder, and for resisting officers with and without violence. The district

court expressed concern about Johnson’s “nonstop history” of violent criminal

activity. The district court also noted that, although Johnson had received

relatively lenient treatment for many of his past crimes (most of which were nolle

prossed, dismissed, or resulted in no action), Johnson had continued to “violate the

laws in a very troubling way.”


2
 Although Johnson’s guidelines range was calculated initially as between 97 and 121 months’
imprisonment, the upper end of the sentencing range was capped at 120 months: the statutory
maximum sentence for Johnson’s offense.
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       On appeal, Johnson argues that the district court failed to accord sufficient

weight to certain mitigating factors. The district court considered expressly

Johnson’s relationship with his then-five-year-old son and Johnson’s drug

addiction. The district court also reviewed and adopted the findings of fact in the

Presentence Investigation Report, which described Johnson’s attention deficit

hyperactivity disorder and which recognized that Johnson grew up without a

father. Having considered Johnson’s history and characteristics -- including this

mitigating evidence -- the district court was within its discretion to conclude that

the mitigating factors were outweighed by other factors, such as the need to protect

the public, promote respect for the law, and to deter future criminal conduct. See

United States v. Williams, 526 F.3d 1312, 1322 (11th Cir. 2008) (“[t]he weight to

be accorded any given § 3553(a) factor is a matter committed to the sound

discretion of the district court.”).

       Given the record, we cannot say that the 120-month sentence failed to reflect

the purposes of sentencing or that the district court committed “a clear error of

judgment in weighing the § 3553(a) factors by arriving at a sentence that lies

outside the range of reasonable sentences dictated by the facts of the case.” See

United States v. Pugh, 515 F.3d 1179, 1203 (11th Cir. 2008).

       AFFIRMED.




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