                  Case: 12-11881         Date Filed: 12/10/2012   Page: 1 of 9




                                                                      [DO NOT PUBLISH]

                    IN THE UNITED STATES COURT OF APPEALS

                               FOR THE ELEVENTH CIRCUIT
                                 ________________________

                                        No. 12-11881
                                    Non-Argument Calendar
                                  ________________________

                        D.C. Docket No. 1:09-cr-00413-ODE-LTW-1



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllllPlaintiff - Appellee,

versus

JOHNNY RAY JOHNSON,

llllllllllllllllllllllllllllllllllllllllDefendant - Appellant.

                                  ________________________

                         Appeal from the United States District Court
                            for the Northern District of Georgia
                               ________________________

                                       (December 10, 2012)

Before CARNES, BARKETT and WILSON, Circuit Judges.

PER CURIAM:
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      Johnny Ray Johnson appeals the 48-month sentence imposed by the district

court for his scheme to obtain beneficiaries’ claim checks from Security Mutual

Life Insurance Company, in violation of 18 U.S.C. § 1341. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1). On appeal, Johnson

argues that his sentence is procedurally and substantively unreasonable. After a

thorough review of the record and briefs, we affirm.

I.    Background

      On December 9, 2011, Johnson entered a negotiated guilty plea to one count

of mail fraud and one count of aggravated identity theft. A United States Probation

Officer prepared Johnson’s presentence investigation report (PSR) and computed

Johnson’s offense level to be 13 with a criminal history category of III. The PSR

calculated Johnson’s advisory Guidelines range to be between 18 and 24 months

for the mail fraud count, which would run consecutively with a mandatory 24-

month sentence for an aggravated identity theft count. Based on his consideration

of the factors in 18 U.S.C. § 3553(a), the sentencing judge imposed an upward

variance of 24 months on the wire fraud count. In total, Johnson will serve 72

months in prison, 48 months for wire fraud and 24 months for aggravated identity

theft. Johnson, who is currently serving his sentence, now challenges the

procedural and substantive reasonableness of the district court’s upward variance.

II.   Analysis


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A.     Procedural Reasonability

       Johnson first argues that his sentence was procedurally unreasonable

because the district court did not adequately explain its reasons for the upward

variance. We normally review de novo the sufficiency of a district court’s

explanation under § 3553(c)(1). United States v. Ghertler, 605 F.3d 1256, 1262

(11th Cir. 2010) (citing United States v. Bonilla, 463 F.3d 1176, 1181 (11th Cir.

2006)). The Government, however, contends that Johnson’s procedural

reasonableness argument should be subject to plain-error review. 1 Yet we need not

address which standard of review applies, because Johnson does not prevail under

either a de novo or a plain error standard.

       To be procedurally reasonable, the district court must properly calculate the

Guidelines range, treat the Guidelines as advisory, consider the § 3553(a) factors,2

not consider clearly erroneous facts, and adequately explain the chosen sentence.


1
  The United States contends that this court should apply plain-error review because Johnson
failed to object to the alleged procedural flaws—namely that the district court failed to explain
its upward variance—at the sentencing hearing. While it is true that Johnson did not object, his
attorney did explicitly state that he would appeal the district court’s sentence. To date, this court
has not issued a published opinion establishing the appropriate standard of review for
reasonableness under these specific circumstances.
2
  The § 3553(a) factors are: (1) the nature and circumstances of the offense and history and
characteristics of the defendant; (2) the need for the sentence to reflect the seriousness of the
offense; (3) the need to promote respect for the law and afford adequate deterrence; (4) the need
to protect the public; (5) the need to provide the defendant with education and vocational training
and medical care; (6) the kinds of sentences available; (7) the Guidelines range; (8) the pertinent
policy statements of the Sentencing Commission; (9) the need to avoid unwarranted sentencing
disparities; and (10) the need to provide restitution to victims. 18 U.S.C. § 3553(a)(1)-(7).


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See Gall v. United States, 552 U.S. 38, 49–50, 128 S. Ct. 586, 596–97 (2007).

Gall’s explanation element derives from § 3553(c)(1), which requires a district

court to “state in open court the reasons for its imposition of the particular

sentence.” 18 U.S.C. § 3553(c). This includes an explanation for “any deviation

from the Guidelines range.” Gall, 552 U.S. at 51, 128 S. Ct. at 597.

      A “sentencing judge should set forth enough to satisfy the appellate court

that he has considered the parties’ arguments and has a reasoned basis for

exercising his own legal decisionmaking authority.” Rita v. United States, 551

U.S. 338, 356, 127 S. Ct. 2456, 2468 (2007). The district court need not discuss

every § 3553(a) factor or even explicitly state that it has considered each of the

§ 3553(a) factors. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).

Rather, its explanation will suffice if it is clear that the court considered a number

of the sentencing factors. See United States v. Dorman, 488 F.3d 936, 944 (11th

Cir. 2007). A district court making an upward variance must “have a justification

compelling enough to support the degree of the variance and complete enough to

allow meaningful appellate review.” United States v. Early, 686 F.3d 1219, 1221

(11th Cir. 2012). We will only vacate the sentence “if we are left with the definite

and firm conviction 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




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of reasonable sentences dictated by the facts of the case.” Id. (internal quotation

marks omitted).

      We are satisfied that the sentencing judge adequately explained that

Johnson’s criminal history and likelihood to recidivate justified an upward

variance:


      THE COURT:          So I’m not—you know, this may be a case where
                          an upward, whatever you call it these days,
                          variance or departure, it may be that the Guideline
                          range isn’t quite right in this case. In fact it may
                          be considerably off.
                          So I am very interested in hearing what both sides
                          have to say about that. I am very concerned about
                          the potential for recidivism.

      (D.E. 89: 9)

      THE COURT:          As far as 3553 factors go, uppermost in my mind is
                          deterrence of the Defendant from committing
                          further fraud crimes. I think particularly when you
                          look at his overall criminal record, it’s very clear
                          that the potential for recidivism is quite high.
                          I have taken into account the Defendant’s personal
                          characteristics. I do believe he is a competent
                          individual. He does have some physical
                          handicaps. He’s using a cane and has some
                          impairment to his vision. I’ve taken that into
                          account as well.
                          I think particularly given that he previously served
                          a ten year sentence for fraud and then got out of
                          prison and immediately committed another fraud
                          speaks volumes about his potential for recidivism.

      (D.E. 89: 21).


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         THE COURT:              I believe the sentence I imposed takes into account
                                 and is driven by the 3553 factors.

         (D.E. 89: 23).

         The record convincingly demonstrates that the district court not only took

into account § 3553(a)’s sentencing factors, but that it more than adequately

explained its reasons for an upward variance. Those reasons—Johnson’s criminal

history3 and the need for deterrence 4—were explicitly explained to Johnson.

Johnson’s sentence is therefore procedurally reasonable.

B.       Substantive Reasonability

         After an appellate court has determined that a sentence is procedurally

sound, it reviews the substantive reasonableness of a sentence under an abuse-of-

discretion standard. See United States v. Gonzalez, 550 F.3d 1319, 1323 (11th Cir.

2008) (per curiam). “The review for substantive unreasonableness involves

examining the totality of the circumstances, including an inquiry into whether the

statutory factors in § 3553(a) support the sentence in question.” Id. at 1324. Once

again, we will only reverse the sentence if we are “left with the definite and firm

conviction 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


3
    18 U.S.C. § 3553(a)(1).
4
    18 U.S.C. § 3553(a)(2)(B).


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reasonable sentences dictated by the facts of the case.” Early, 686 F.3d at 1221

(internal quotation marks omitted).

      Johnson argues that his sentence is greater than needed, particularly in light

of his family situation and the amount of time he has spent in a pretrial detention

facility. For several reasons, we are convinced that the district court imposed a

substantively reasonable sentence under § 3553(a).

      First, Johnson’s 48-month sentence for mail fraud, despite being 24 months

over the Guidelines range, is still far below the 240-month statutory maximum for

wire fraud. See 18 U.S.C. § 1341. This fact indicates that Johnson’s sentence is a

reasonable one. See Gonzalez, 550 F.3d at 1324 (holding that when a sentence

below the statutory maximum, there is an indication of reasonableness); United

States v. Valnor, 451 F.3d 744, 751–52 (11th Cir. 2006) (finding a sentence

reasonable, in part because “the 42-month sentence the district court reached after

considering the § 3553(a) factors and the ultimate sentence were appreciably below

the length of the statutory maximum”).

      Further, § 3553(a)’s factors militate in favor of an upward variance in this

case, especially Johnson’s criminal history and the probability of recidivism. See

Early, 686 F. 3d at 1223. The sentencing judge exhaustively recounted Johnson’s

criminal history, which began in 1968 and included eight federal-fraud

convictions, along with ten Georgia state convictions. Even while in state custody,


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Johnson forged several court orders in an attempt to modify his sentence and be

released from custody. Moreover, the PSR indicated that Johnson’s criminal

history might be understated because he had been either in custody or under

supervision for the last 35 to 40 years. The sentencing judge remarked that

Johnson’s criminal history was “one of the longest I’ve seen.” (D.E. 89: 11).

Similarly, in Early we affirmed an upward variance in part because the defendant’s

“criminal history [was] so extensive that he [had] been incarcerated virtually all of

his adult life.” Early, 686 F.3d at 1222. Johnson’s criminal history indicates a

strong disrespect for the law and a high probability of recidivism. We are certainly

not convinced that the sentencing judge committed a “clear error of judgment” by

imposing a 24-month upward variance to Johnson’s sentence, especially when the

judge’s concerns about criminal history and deterrence are both required by

§ 3553(a) and readily apparent from the record.

III.   Conclusion

       In sum, Johnson cannot show that the district court imposed an unreasonable

sentence, in either procedure or substance. Johnson’s sentence is well below the

maximum 240-month sentence available under 18 U.S.C. § 1341. Further the

court adequately explained its reasons for the upward variance, and its reasons

were supported by § 3553(a). For the foregoing reasons, the judgment of the

district court is affirmed.


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AFFIRMED.




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