     Case: 19-10517      Document: 00515321148         Page: 1    Date Filed: 02/26/2020




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


                                    No. 19-10517
                                                                              FILED
                                                                       February 26, 2020
                                  Summary Calendar
                                                                         Lyle W. Cayce
                                                                              Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

TRAVON NIKEITH JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-117-1


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
       Defendant-Appellant Travon Nikeith Johnson appeals his above-
guidelines sentence of 24 months of imprisonment and 30 months of supervised
release that he received on revocation of his initial term of supervised release.
In reaching its decision during the revocation and sentencing hearing, the
district court stated that it considered his criminal history, “his ongoing
activity in assaulting a family member,” and the sentencing factors under


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                   No. 19-10517

18 U.S.C. § 3553(a).      Although the district court initially announced its
sentence before permitting allocution, the court withdrew its sentence after
Johnson objected, heard allocution, then imposed the same sentence.
         Johnson raises two issues on appeal. He first contends that the district
court deprived him of a meaningful opportunity to allocute by making its
statements to him that tended to indicate that he had an “uphill battle” in
trying to change the court’s mind.
      Plain error review applies because Johnson did nothing to indicate that
he “took exception” to how the district court handled his initial allocution
objection. See United States v. Salinas, 480 F.3d 750, 755-56 (5th Cir. 2007).
There was no “clear or obvious” error. Puckett v. United States, 556 U.S. 129,
135 (2009). The district court was permitted to state its intentions to impose
a particular sentence before giving Johnson the opportunity to speak. United
States v. Pittsinger, 874 F.3d 446, 452 (5th Cir. 2017). It is not clear or obvious
that the district court’s language constituted “a definitive and conclusive
statement regarding the sentence to be imposed.” Id. at 453.
      Johnson next maintains that the district court failed to consider the
extent of the deviation from the applicable guidelines range in sentencing him
to an above-guidelines sentence of imprisonment after ascertaining the correct
range.    Although Johnson concedes that a court which initially chooses a
sentence above an 18-month maximum range probably would not sentence
beneath a 12-month maximum on the same facts, he argues that it does not
follow that the ultimate sentence should necessarily be the same.
      Assuming arguendo that the district court committed a clear or obvious
error, Johnson still fails to show that such an error affected his substantial
rights. The Supreme Court has said that “[i]n most cases a defendant who has
shown that the district court mistakenly deemed applicable an incorrect,



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                                  No. 19-10517

higher Guidelines range has demonstrated a reasonable probability of a
different outcome.” Molina-Martinez v. United States, 136 S. Ct. 1338, 1346
(2016). Here, however, the district court considered the correct guidelines
range before imposing Johnson’s sentence and had chosen its initial sentence
with reference to the statutory limits on the revocation sentence and not the
applicable guidelines range.      In sentencing Johnson, the district court
emphasized his criminal history and “his ongoing activity in assaulting a
family member” as opposed to the sentencing range. Johnson has not pointed
to anything in the record that tends to show that the outcome would have been
different had the district court explicitly considered the extent of the deviation.
As such, he has failed to show that the district court plainly erred.          His
sentence is AFFIRMED.




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