     Case: 18-50826   Document: 00515210658        Page: 1   Date Filed: 11/22/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                    No. 18-50826                       FILED
                                                               November 22, 2019
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             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.
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                                       No. 18-50826
                                              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



       Count three of the indictment charges Johnson’s co-defendant, John Hubert
       1

Townsend, with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).
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                                 No. 18-50826
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.
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                                  No. 18-50826
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 of judicial proceedings.” Id.
(internal quotation marks, brackets, and citation omitted).


                                       III.
A. Criminal History Points
      “Section 4A1.2(e) governs whether prior convictions count for criminal
history purposes.” United States v. Arviso-Mata, 442 F.3d 382, 385 (5th Cir.
2006); see U.S.S.G. § 4A1.2(e). A prior sentence is not counted unless (1) it was
a “sentence of imprisonment exceeding one year and one month that was
imposed within fifteen years of the defendant’s commencement of the instant
offense,” or (2) it was any other sentence “that was imposed within ten years
of the defendant’s commencement of the instant offense.” § 4A1.2(e)(1)–(3).
“The term ‘sentence of imprisonment’ means a sentence of incarceration and
refers to the maximum sentence imposed.” § 4A1.2(b)(1).
      Johnson was sentenced to 90 days of imprisonment for his Texas
unlawfully carrying a weapon conviction. In addition, Johnson’s sentence was
imposed in September 2005, more than 10 years prior to the commencement of
the instant offense in April 2016. Accordingly, the district court’s assessment
of two criminal history points for Johnson’s weapon conviction was clear or
obvious error, and Johnson has satisfied the first two prongs of the plain error
standard. See § 4A1.2(e)(1)–(3); Puckett, 556 U.S. at 135.


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                                 No. 18-50826
      To satisfy the third prong of the plain error standard, a defendant must
show a reasonable probability that, but for the error, he would have received a
lesser sentence. See United States v. Mudekunye, 646 F.3d 281, 289 (5th Cir.
2011). There is no requirement that he make a showing beyond the fact that
the erroneous, and higher, Guidelines range “set the wrong framework for the
sentencing proceedings.” Molina-Martinez v. United States, 136 S. Ct. 1338,
1345 (2016). The district court’s reliance on an incorrect Guidelines range
“itself can, and most often will,” establish a “reasonable probability of a
different outcome absent the error.”       Id. at 1345. However, if the record
supports that the district court believed the sentence imposed was proper
regardless of the correct Guidelines range or that the sentence was based “on
factors independent of the Guidelines,” a defendant may not be able to show
an effect on his substantial rights even if an incorrect Guidelines range was
used. Id. at 1347.
      If the district court had not assessed two criminal history points for the
2005 weapon conviction, Johnson’s criminal history category would have been
III, and his Guidelines range would have been 37 to 46 months of
imprisonment instead of 46 to 57 months of imprisonment. U.S.S.G, Ch. 5, Pt.
A. Johnson contends his substantial rights were affected because the district
court used the incorrect Guidelines range as a starting point for the 100-month
sentence. However, the record reflects that the district court, after considering
the 18 U.S.C. § 3553(a) factors, determined an upward variance was
appropriate. The district court, at the sentencing hearing and in its statement
of reasons, emphasized the serious nature of Johnson’s offense, noting that it
involved drugs, including fentanyl, and guns. The district court also expressed
concern with Johnson’s “[e]xtensive criminal history” and emphasized
Johnson’s lack of respect for the law, noting that he had engaged in “the same
criminal conduct as before.” Finally, the district court noted the “need to give
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                                       No. 18-50826
a sentence that deters the criminal conduct of the defendant and to protect the
public.” Contrary to Johnson’s argument that the incorrect Guidelines range
was used as a starting point for the 100-month sentence, the district court, in
stating that the drug-quantity calculation was “immaterial to the sentence [it]
anticipate[d],” indicated that the Guidelines range, too, was immaterial to the
sentence imposed. 2        Accordingly, although the district court erred in its
assessment of Johnson’s criminal history category, Johnson has failed to show
a reasonable probability that, but for the error, he would have received a lesser
sentence.      That being said, because the district court relied on facts
independent of the Guidelines in determining that an upward variance was
warranted, if those relied-upon facts were erroneous, Johnson’s substantial
rights could have been affected. See Molina-Martinez, 136 S. Ct. at 1345–47;
Puckett, 556 U.S. at 135. We now turn to that issue.


B. Erroneous Facts
       Johnson also asserts the district court plainly erred by imposing an
above-Guidelines sentence based on erroneous facts related to his criminal
history. He maintains that the district court mistakenly believed he had been
in the drug business a long time and had been caught three times with drugs
and guns. The basis for this assertion is limited to one misstatement by the
court regarding Johnson’s 2006 arrest. At the sentencing hearing, the court
stated, “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




       2  Although the 100-month sentence was within the guidelines range (84 to 105
months) in the PSR before the district court sustained Johnson’s objection to the PSR’s drug
quantity calculation, the district court provided “a detailed explanation of the reasons the
selected sentence [was] appropriate” and “[made] it clear that [it] based the sentence . . . on
factors independent of the Guidelines,” see Molina-Martinez, 136 S. Ct. at 1346–47.
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                                     No. 18-50826
particular case I don’t think that’s consequential.” 3            However, the record
reflects that in 2006, Johnson was arrested for unlawfully carrying a gun in a
weapon-free school zone with no apparent drug involvement.
       Aside from this misstatement, there is no clear or obvious evidence from
the record to suggest that the court erroneously believed Johnson’s three
convictions were all drug-related. Rather, the court stated, “You have three
convictions, guns and dope. This is another one. Guns and dope. You’ve got a
gun everywhere you had the dope that you were selling . . . .” Johnson contends
these statements further confirm his assertion that the court believed his three
convictions were all drug-related. Yet, a more precise reading of the court’s
statements indicates that the court noted there was always gun involvement,
but not necessarily always drug involvement: “Every time he’s caught – all
three times he’s been caught, he has the guns.”
       Furthermore, at the beginning of the sentencing hearing, the district
court actually correctly describes Johnson’s 2006 arrest: “You have a criminal
record that started in 2005, possession of cocaine, and then unlawful carrying
of a weapon. Actually it was two weapons. In ’06, conviction of unlawful
carrying of another weapon with an obliterated serial number.” (emphasis
added). Here, the district court made no mention of drug involvement in
Johnson’s 2006 arrest. Instead, the court accurately states that it was only a
gun arrest. This statement further confirms that the court did not mistakenly
believe all three of Johnson’s arrests were for guns and drugs. Additionally,
the court relied on and adopted the PSR, which correctly reflects that Johnson’s
2006 conviction was only gun-related.            See United States v. Mondragon-
Santiago, 564 F.3d 357, 365 (5th Cir. 2009) (noting that “to show substantial



      3 Notably, neither Johnson nor his counsel objected to or corrected this statement at
the hearing.
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                                 No. 18-50826
prejudice, the defendant must prove that the error affected the sentencing
outcome”).
      Thus, although the district court erroneously stated that Johnson “had
dope” in describing the 2006 arrest, there is no additional, obvious evidence
indicating that the court mistakenly believed Johnson had three drug
convictions or that the court’s decision to impose an upward variance was
affected by such a belief. Accordingly, the district court’s single misstatement,
when considered in the context of the record as a whole, did not affect Johnson’s
substantial rights. See United States v. Hernandez-Dominguez, 729 Fed. App’x
328, 329 (5th Cir. 2018) (unpublished) (explaining that the district court’s
single erroneous statement, to which there was no objection, “could not have
been so compelling such that it resulted in a procedurally unreasonable
sentence under plain error review”). Therefore, Johnson has failed to satisfy
the third prong of the plain error test, and we affirm his sentence.
      AFFIRMED.




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