           Case: 13-11928   Date Filed: 03/07/2014   Page: 1 of 9


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 13-11928
                        Non-Argument Calendar
                      ________________________

                  D.C. Docket No. 0:12-cr-60216-RSR-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,

                                  versus

JAMES RICHARD JOHNSON,

                                                         Defendant-Appellant.

                      ________________________

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

                             (March 7, 2014)

Before HULL, WILSON and ANDERSON, Circuit Judges.

PER CURIAM:
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      After pleading guilty, James Johnson appeals his 120-month sentence for

conspiracy to manufacture methamphetamine, in violation of 21 U.S.C.

§§ 841(a)(1), 846. On appeal, Johnson argues that his sentence is procedurally and

substantively unreasonable. After review, we affirm.

      We review the reasonableness of a sentence for an abuse of discretion using

a two-step process. United States v. Pugh, 515 F.3d 1179, 1190 (11th Cir. 2008).

We look first at whether the district court committed any significant procedural

error, such as miscalculating the advisory guidelines range, treating the guidelines

as mandatory, failing to consider the 18 U.S.C. ' 3553(a) factors, selecting a

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

chosen sentence. Id.

      Then, we examine whether the sentence is substantively unreasonable under

the totality of the circumstances. Id. Although we do not automatically presume a

sentence within the guidelines range is reasonable, we ordinarily expect such a

sentence to be reasonable. United States v. Hunt, 526 F.3d 739, 746 (11th Cir.

2008). A sentence imposed well below the statutory maximum is another indicator

of a reasonable sentence. See United States v. Gonzalez, 550 F.3d 1319, 1324

(11th Cir. 2008). The defendant bears the burden to show his sentence is




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unreasonable in light of the record and the ' 3553(a) factors.1 United States v.

Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006).

       With respect to procedural reasonableness, Defendant Johnson raises two

guidelines calculation errors, neither of which has merit. 2 First, the district court

did not clearly err in attributing to Johnson pseudoephedrine purchases he made

before he met two of his coconspirators, codefendant Amanda Stern and another

individual identified as “SZ” in May 2012. By pleading guilty, Johnson admitted

that he conspired with Stern and “others known and unknown,” to manufacture

methamphetamine “from at least on or about January 9, 2012 until on or about July

11, 2012.” See United States v. Fairchild, 803 F.2d 1121, 1124 (11th Cir. 1986)

(stating that an unconditional guilty plea admits all the elements of a formal

criminal charge).

       Furthermore, contrary to Johnson’s claim, his charged conspiracy was not

limited to only Stern and SZ and did not begin when he met Stern and SZ at a

Target store and they agreed to buy pseudoephedrine for him. It is undisputed that,


       1
         The § 3553(a) factors include: (1) the nature and circumstances of the offense and the
history and characteristics of the defendant; (2) the need to reflect the seriousness of the offense,
to promote respect for the law, and to provide just punishment for the offense; (3) the need for
deterrence; (4) the need to protect the public; (5) the need to provide the defendant with needed
educational or vocational training or medical care; (6) the kinds of sentences available; (7) the
Sentencing Guidelines range; (8) 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).
       2
         We review the district court’s application of the guidelines de novo and its factual
finding for clear error. United States v. Almedina, 686 F.3d 1213, 1213 (11th Cir. 2011).


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after Johnson’s arrest, he admitted to manufacturing methamphetamine about twice

a month for four years for his personal use and that of his friends. Johnson further

admitted to using individuals other than Stern and SZ, such as his ex-girlfriend

Laura Markheim and homeless people, to buy the pseudoephedrine he needed to

make the methamphetamine. Under the circumstances, the district court did not

clearly err in finding that Johnson’s own pseudoephedrine purchases made during

the conspiracy period were part of the charged conspiracy. Given that relevant

conduct includes a defendant’s own acts in furtherance of a drug conspiracy, see

U.S.S.G. § 1B1.3(a)(1)(A), the district court properly included in its drug quantity

determination Johnson’s own pseudoephedrine purchases made during the charged

conspiracy period.3

       Second, the district court did not clearly err when it applied the two-level

enhancement under U.S.S.G. § 2D1.1(b)(12) for maintaining a premises for the

purposes of manufacturing methamphetamine. The undisputed facts show that

about twice a month Johnson made methamphetamine at a storage unit he rented.

The fact that Johnson also used the storage unit to store his personal belongings

       3
        Johnson’s reliance on United States v. Gomez, 164 F.3d 1354 (11th Cir. 1999) is
misplaced. Gomez involved a defendant held accountable for an uncharged drug transaction that
occurred away from the car wash where all the other transactions in the drug conspiracy took
place. 164 F.3d at 1355, 1357. The Court in Gomez explained that although a defendant “may
be held accountable at sentencing for illegal conduct not in furtherance of the offense of
conviction,” it must be part of the same course of conduct or common scheme or plan, which the
uncharged drug transaction was not. Id. at 1356 (emphasis added). Here, however, Johnson’s
pseudoephedrine purchases between January and May 2012 were part of the charged
methamphetamine conspiracy to which he pled guilty and were in furtherance of that offense.


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does not preclude application of the enhancement. See U.S.S.G. § 2D1.1, cmt.

n.17 (providing that the manufacturing of a controlled substance need not be the

only purpose for which the premises were used, but must be one of the primary or

principal uses and not an incidental or collateral use). Given the frequency over

time that Johnson used the storage facility to make methamphetamine, we cannot

say the district court clearly erred in finding that his methamphetamine

manufacturing was one of the primary purposes of the storage unit.

      Defendant Johnson also has not shown that his 120-month sentence, at the

low end of the advisory guidelines range of 120 to 151 months, was substantively

unreasonable. In the charged conspiracy, Johnson was the one who made the

methamphetamine, which, as the district court noted, is an inherently dangerous

process involving toxic and explosive chemicals. In addition to purchasing

pseudoephedrine, Johnson recruited others to do so for him, including paying

homeless individuals. While Johnson was not a large-scale methamphetamine

distributor, he nonetheless trafficked in methamphetamine by sharing it with his

co-conspirators and friends. Furthermore, as the district court pointed out, Johnson

introduced codefendant Stern to the drug. We reject Johnson’s characterization of

himself as merely a drug addict who was unfairly sentenced as a drug trafficker.

      Johnson also has an extensive, thirty-year criminal history, with many theft

and drug-related convictions and arrests. Although the district court acknowledged



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that many of Johnson’s offenses appear to stem from his long-term drug addiction,

the district court further observed that Johnson had not shown any positive

behavior during those thirty years and appears incapable of changing or of

following the law.

      Defendant Johnson argues that the district court failed to accord sufficient

weight to his mitigating factors, such as his chronic drug addiction, the fact that he

manufactured only small amounts of methamphetamine mainly for his personal

use, and the fact that his criminal history included many “minor” crimes

“indicative of his status as a chronic drug addict.” The district court explicitly

considered all of these mitigating factors at sentencing, and was within its

discretion in concluding that they were outweighed by other factors, such as the

need to protect the public, promote respect for the law, and deter future criminal

and thus did not justify a downward variance. 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.”

(quotation marks omitted)). To the extent Johnson asks this Court reweigh

individual § 3553(a) factors, this is not something we do when, as here, the

ultimate sentence imposed is reasonable. See United States v. Snipes, 611 F.3d

855, 872 (11th Cir. 2010).




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       Finally, Johnson argues that his sentence is unreasonable because the district

court “gave improper weight to prejudicial factual findings that were irrelevant

and/or unsupported.”4 Specifically, Johnson points to the district court’s

comments that: (1) Johnson introduced SZ to methamphetamine and drove “while

he apparently [was] using these drugs”; and (2) that Johnson’s criminal history

included a pending “domestic-type” charge and two other offenses in which

Johnson was found by law enforcement in possession of a knife.

       The district court’s statements do not require us to remand for resentencing.

First, the district court may properly consider a defendant’s history and

characteristics, including any undisputed criminal history described in the PSI.

Johnson did not object to the criminal history portion of his PSI. Thus, the PSI’s

descriptions of Johnson’s convictions, arrests, and pending charges—including his

possession of a knife during two arrests and his pending charge for domestic

battery—were deemed admitted. See United States v. Beckles, 565 F.3d 832, 844

(11th Cir. 2009) (explaining that the defendant’s failure to object to the PSI’s

factual statements renders those statements undisputed and allows the sentencing

       4
         Johnson characterizes the alleged error as the consideration of improper or irrelevant
factors and argues that his sentence is substantively unreasonable. See United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010) (en banc) (explaining that a sentence may be substantively
unreasonable if the district court gave “significant weight to an improper or irrelevant factor”).
However, the gravamen of Johnson’s argument is that the district court made assumptions that
were not supported by the record and thus were clearly erroneous. See Gall v. United States, 552
U.S. 38, 51, 128 S. Ct. 586, 597 (2007) (stating that a sentence is procedurally unreasonable if it
is based on clearly erroneous facts). Regardless of how the alleged error is characterized, for the
reasons discussed above, no reversible error has been shown.


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court to rely upon them). Notably, Johnson has never challenged the factual

accuracy of the PSI’s description of his criminal history. See United States v.

Williams, 989 F.2d 1137, 1142 (11th Cir. 1993) (concluding that the district court

may rely upon a PSI’s undisputed summary of the facts surrounding an offense or

arrest).

       Johnson is correct that he was not arrested for or charged with driving under

the influence. However, Johnson does not dispute that he has been a drug addict

his entire adult life and that he committed numerous driving offenses over that

same time period. Moreover, the district court properly considered Johnson’s

driving record as part of his entire criminal history over thirty years. Although the

district court was concerned that Johnson may have driven while under the

influence of drugs, the record does not suggest that district court selected the 120-

month sentence based on this particular concern. Rather, the district court

concluded that Johnson’s entire criminal history, considered as a whole,

demonstrated that he was unable to follow the law and therefore posed a danger to

the public. The fact that Johnson was not actually arrested for driving under the

influence does not make the court’s overarching concern any less valid.

       Johnson is also correct that the record is silent as to whether SZ had used

methamphetamine before meeting Johnson. However, the record is clear that

codefendant Stern did not use methamphetamine until Johnson gave it to her.



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Given that Johnson had in fact introduced another person to methamphetamine, the

district court’s misstatement (that he introduced the drug to both SZ and Stern) is

harmless. See United States v. Mathenia, 409 F.3d 1289, 1292 (11th Cir. 2005)

(stating that a harmless error is one that either did not affect the sentence or had

only a very slight effect).

      In sum, in light of the totality of the circumstances, we cannot say that the

district court abused its discretion when it imposed a 120-month sentence, at the

low end of the advisory guidelines range.

      AFFIRMED.




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