     Case: 14-10117      Document: 00512967501         Page: 1    Date Filed: 03/12/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-10117
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                          March 12, 2015
UNITED STATES OF AMERICA,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Plaintiff-Appellee

v.

ANTHONY RAY JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:13-CR-30-4


Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
       Anthony Ray Johnson appeals his 188-month sentence for conspiracy to
possess with intent to distribute heroin. For the first time on appeal, he
contends that his guidelines sentence was unreasonable because the district
court failed to consider the need to avoid unwarranted sentencing disparities
among defendants with similar records and offense conduct. He notes that,
after he was sentenced, four of his co-defendants received the benefit of a


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 14-10117     Document: 00512967501     Page: 2   Date Filed: 03/12/2015


                                 No. 14-10117

proposed amendment to the Sentencing Guidelines that lowered the base
offense level for their offenses by two levels, while Johnson did not.
      We review this unpreserved procedural objection for plain error. See
United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009).
Johnson must show a forfeited error that is clear or obvious that affects his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). If
he makes such a showing, we have the discretion to correct the error but only
if it seriously affects the fairness, integrity, or public reputation of judicial
proceedings. See id.
      Johnson correctly concedes that this court will “infer that the judge has
considered all the factors for a fair sentence” when a guidelines sentence is
imposed. United States v. Smith, 440 F.3d 704, 706-07 (5th Cir. 2006) (internal
quotation marks and citation omitted). His argument concerning sentences
that were subsequently imposed in other cases does not show a clear or obvious
error by the district court in Johnson’s case. See Puckett, 556 U.S. at 135;
Smith, 440 F.3d at 706-07.
      Johnson similarly contends that his sentence was substantively
unreasonable because it failed to account for the (later) lesser sentences
imposed in in his co-defendants’ cases.             His forfeited substantive
reasonableness challenge is also reviewed for plain error. See United States v.
Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007). Even putting aside the logical
problem that the other sentences were pronounced after that of Johnson, the
cases of Johnson’s four co-defendants are distinguishable. Johnson indicated
at his sentencing that he would seek a postconviction sentencing reduction to
obtain the benefit of the amendment if and when it became retroactively
effective, while his co-defendants waived the right to seek a postconviction
reduction under 18 U.S.C. § 3582(c).        Defendants who are not similarly



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                                     No. 14-10117

situated “are not appropriate points for comparison in a reasonableness
analysis.” United States v. Cooks, 589 F.3d 173, 186 (5th Cir. 2009). We find
no error, plain or otherwise.
      Finally, Johnson contends that his sentence was unreasonable because
it did not account for the Sentencing Commission’s reasons for the proposed
amendment--its determination that the lower offense level would produce
sentences sufficient to afford adequate deterrence and protect the public.
Because Johnson preserved this objection, it is reviewed for abuse of discretion.
See Gall v. United States, 552 U.S. 38, 51 (2007).
      The district court determined that a 188-month sentence was necessary
to “reflect the seriousness of and provide just punishment for the offense,
promote respect for the law, afford adequate deterrence to criminal conduct,
and protect the public from further crimes of the defendant.”                   Johnson
transported nearly 14 kilograms of heroin between a supplier and distributors,
and his decades-long criminal history included several other controlled
substances offenses. We find no abuse of discretion in the denial of a downward
variance to account for the proposed guidelines amendment. See United States
v. Scott, 654 F.3d 552, 557-58 (5th Cir. 2011).
      The judgment of the district court is AFFIRMED. 1




      1   18 U.S.C. § 3582(c) provides a statutory mechanism for obtaining a sentencing
reduction in cases such as this where the defendant was “sentenced to a term of
imprisonment based on a sentencing range that has subsequently been lowered by the
Sentencing Commission” and “such a reduction is consistent with applicable policy
statements issued by the Sentencing Commission.” § 3582(c)(2). We note that Johnson filed
a motion under this section in December of 2014, and our ruling here does not preclude the
district court’s consideration of this motion; we take no position on its outcome.


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