Case: 18-11602        Document: 00515514100             Page: 1      Date Filed: 08/04/2020




             United States Court of Appeals
                  for the Fifth Circuit                                United States Court of Appeals
                                                                                Fifth Circuit

                                                                              FILED
                                                                         August 4, 2020
                                     No. 18-11602                        Lyle W. Cayce
                                                                              Clerk

 United States of America,

                                                                   Plaintiff—Appellee,

                                          versus

 Derrick Adrian Johnson,

                                                               Defendant—Appellant.


                  Appeal from the United States District Court
                      Northern District of Texas, Dallas
                           USDC No. 3:16-CR-349-1


 Before STEWART, CLEMENT, and COSTA, Circuit Judges.
 Per Curiam:*
         Derrick Adrian Johnson appeals his jury trial conviction and sentence
 for bank robbery. For the following reasons, we affirm.




         *
          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 not be published and is not precedent except under the limited circumstances set forth in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: 18-11602        Document: 00515514100            Page: 2      Date Filed: 08/04/2020




                                      No. 18-11602


                          I. Facts & Procedural History
         In August 2016, Johnson was charged with bank robbery, in violation
 of 18 U.S.C. § 2113(a). Prior to trial, he filed an opposed motion seeking funds
 to retain a psychiatrist to evaluate whether he was insane at the time of the
 offense. He also filed a notice of intent to assert an insanity defense. While
 Johnson’s request for funding was pending, the Government moved for a
 pretrial psychiatric or psychological examination. The district court granted
 the Government’s motion and Johnson was transferred to a Bureau of
 Prisons (BOP) facility and examined by a BOP psychologist, Dr. Tennille
 Warren-Phillips. After examining Johnson, Dr. Warren-Phillips concluded
 “[i]t is my opinion Mr. Johnson was criminally responsible for his alleged
 actions during the time period in question. I do not believe that he, as a result
 of a severe mental disease or defect, was unable to appreciate the nature and
 quality or wrongfulness of his acts.”
         The magistrate judge (MJ) then denied Johnson’s pending requests
 for funds to retain two specific expert witnesses, Dr. Tim F. Branaman, a
 psychologist, and Jeff Fletcher, a licensed professional counselor.1 The MJ
 acknowledged that Johnson was indigent but determined that he had not
 established that the services of a psychologist were necessary for his defense.
         Johnson exercised his right to testify at trial and generally asserted that
 he could not remember what happened on the day of the bank robbery and
 that he was “not in [his] right mindset” that day. During his initial
 examination, defense counsel asked Johnson whether he had met with any
 mental health providers other than Dr. Warren-Phillips, and Johnson



         1
          Johnson withdrew his initial request for funds to retain a psychiatrist but did
 not withdraw his subsequent ex parte requests for funds to retain Dr. Branaman and
 Fletcher.




                                            2
Case: 18-11602      Document: 00515514100         Page: 3   Date Filed: 08/04/2020




                                  No. 18-11602


 responded that he met with Fletcher and Dr. Branaman for the purpose of
 evaluating his mental state at the time of the robbery. Counsel then
 questioned Johnson about the outcome of those meetings, and the
 Government objected that the questions called for hearsay and that the
 information divulged in those meetings had not been disclosed to the
 Government.
       Defense counsel then asked Johnson why the counselors were not
 testifying and Johnson stated that he could not afford them. Then, on cross-
 examination, the prosecutor asked Johnson, without referencing any
 particular individual, whether he had the power to “subpoena witnesses to
 come up here and testify [on his] behalf,” and Johnson replied, “[t]hat’s
 correct.” Defense counsel followed up on redirect, eliciting testimony that
 some witnesses cost money, that some witnesses may not show up in court
 even though they are subpoenaed, and that subpoenas were issued by the
 court in Johnson’s case. The following colloquy took place on re-cross
 examination:
                Q. Mr. Johnson, you keep saying that you don’t
                have money and that’s why you don’t have any
                witnesses here. You understand that if somebody
                violates a federal subpoena, the Marshals can go
                out and find them; the Court can issue a bench
                warrant. Correct?

                A. That’s my first time hearing that.

                Q. You don’t have any understanding of what the
                consequences are if you violate a federal
                subpoena?

                A. I’ve never been subpoenaed or issued a
                subpoena, so no, I don’t.




                                        3
Case: 18-11602     Document: 00515514100          Page: 4   Date Filed: 08/04/2020




                                   No. 18-11602


              Q. You understand that there is a process in place
              for you to actually petition the Court for money
              to pay witnesses that cost money. Correct?

              A. Yes.

              Q. And, in fact, you have petitioned the Court for
              money and you were denied that money.
              Correct?

              A. That’s correct.

              Q. The Court made the determination not to give
              you that money. Is that right?

              A. In contravention of the law, yes.

              Q. That’s what you say, but the Court has
              decided that you are not going to have money to
              pay whoever you wanted to pay. Is that correct?

              A. That’s correct.

              [Q]: No further questions.

       In closing, counsel for Johnson challenged only whether he had the
 mental state necessary to commit the bank robbery and argued that he could
 not present testimony from mental health experts because he could not afford
 them. In rebuttal, the Government emphasized that Johnson would have
 issued subpoenas for his mental health experts had there been any validity to
 his mental health defense. The district court then advised the jury that (1)
 the questions, statements, objections, and arguments of the attorneys were
 not evidence and (2) jurors should not assume that the court had any opinion




                                        4
Case: 18-11602      Document: 00515514100         Page: 5     Date Filed: 08/04/2020




                                   No. 18-11602


 on the issues based on the court’s actions and statements, and should
 disregard them. The jury found Johnson guilty as charged.
        The presentence report (PSR) assigned Johnson a two-level
 enhancement for obstruction of justice under U.S.S.G. § 3C1.1 on the
 grounds that he committed perjury during his trial testimony by falsely
 stating that he could not remember the circumstances of the instant bank
 robbery. Specifically, the PSR provided that:
               [T]he defendant testified he could not recall the
               events of the instant offense. The government
               noted the defendant confessed to the events of
               the instant offense to law enforcement officials
               immediately following his arrest on July 9, 2016.
               The defendant also recounted the events, in
               detail, when he met with Dr. Tennille Warren-
               Phillips during multiple sessions for a Criminal
               Responsibility Report. Dr. Warren-Phillips
               indicated the defendant never expressed any
               problems recalling the instant offense during
               those sessions.
 See PSR, Paragraph 16; ROA 675. Johnson objected, arguing that he never
 claimed not to remember the major facts of the instant offense and whether
 he testified truthfully regarding his recall should not be predicated on the
 report of Dr. Warren-Phillips because she did not testify at trial.
        Johnson proceeded pro se at the sentencing hearing and adopted the
 objections to the PSR filed by counsel and re-urged them orally. The district
 court overruled Johnson’s objections to the § 3C1.1 enhancement and
 adopted the PSR which provided for a guidelines range of 92-115 months.
 Because it found a guidelines sentence inadequate, the district court varied
 upward and imposed a sentence of 132 months, observing that the 115-month
 sentence imposed for a prior similar bank robbery that Johnson had




                                        5
Case: 18-11602      Document: 00515514100           Page: 6    Date Filed: 08/04/2020




                                    No. 18-11602


 committed in 2007 had not deterred him from committing a similar crime.
 Johnson filed this appeal.
                                   II. Discussion
        Johnson presents two issues for this court’s review on appeal. First,
 he argues that the prosecutor engaged in misconduct that prejudiced his
 defense by commenting on his failure to subpoena Fletcher and Dr.
 Branaman and on the district court’s pretrial denial of his motion for funds
 to hire a mental health expert. Second, he argues that the district court
 reversibly erred by applying the § 3C1.1 obstruction of justice enhancement.
 We address each issue in turn.
        Prosecutorial Misconduct
        “A prosecutor is prohibited from commenting directly or indirectly
 on a defendant’s failure to testify or produce evidence.” United States v.
 Waguespack, 935 F.3d 322, 334 (5th Cir. 2019) (quoting United States v.
 Romero-Medrano, 899 F.3d 356, 361 (5th Cir. 2018)). However, “[i]mproper
 prosecutorial comments constitute reversible error only where the
 defendant’s right to a fair trial is substantially affected.” Id. (quoting United
 States v. Stephens, 571 F.3d 401, 407-08 (5th Cir. 2009)). In reviewing a claim
 of prosecutorial misconduct, this court employs a two-step analysis. United
 States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010). We first determine
 whether the disputed remark was improper. Id. If so, we then decide
 whether the remark affected the defendant’s substantial rights. Id.
        When the defendant does not object to the disputed remark, as in this
 case, we review for plain error only, which requires him to show error that is
 clear and obvious and affects his substantial rights. United States v. Gracia,
 522 F.3d 597, 599-600 (5th Cir. 2008). If the defendant makes such a
 showing, we have the discretion to correct the error and should do so if it




                                         6
Case: 18-11602       Document: 00515514100           Page: 7     Date Filed: 08/04/2020




                                    No. 18-11602


 seriously affected the fairness, integrity, or public reputation of judicial
 proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009).
        We assume without deciding that Johnson can prove prongs one and
 two of plain error as to the prosecutor’s remarks regarding his failure to
 subpoena witnesses and the court’s pretrial denial of funds to hire a mental
 health expert. We also agree with the Government, however, that his claim
 falls short on prong three, substantial rights. More specifically, Johnson
 cannot demonstrate a reasonable probability that any purported error here
 influenced the outcome of his trial. See United States v. Huntsberry, 956 F.3d
 270, 283 (5th Cir. 2020) (“As a general rule, an error affects a defendant’s
 substantial rights only if the error was prejudicial . . . . Error is prejudicial if
 there is a reasonable probability that the result of the proceedings would have
 been different but for the error.” (citations omitted)). The record reflects
 that the Government presented adequate evidence at trial to support the
 jury’s verdict of guilt, including but not limited to: stills of the videotaped
 footage of Johnson committing the bank robbery, the robbery note, the fact
 that he still had cash he had stolen from the bank on him when he was
 arrested, that he admitted he robbed the bank to investigators and a mental
 health counselor, and that he committed the robbery one day after he finished
 serving a sentence for a prior bank robbery.
        Given the voluminous evidence of Johnson’s guilt as presented at
 trial, we agree with the Government that any purported error with respect to
 the prosecutor’s comments as to Johnson’s failure to subpoena witnesses or
 the district court’s pretrial denial of funds for a mental health expert could
 not have affected the outcome of his proceedings. See United States v. Smith-
 Bowman, 76 F.3d 634, 637 (5th Cir. 1996) (“[T]he evidence as a whole before
 the jury was sufficiently convincing of guilt as to overcome any error
 committed by the government during its cross-examination of this one
 defense witness.”).



                                          7
Case: 18-11602        Document: 00515514100             Page: 8      Date Filed: 08/04/2020




                                      No. 18-11602


         Sentencing Enhancement
         Section 3C1.1 of the Sentencing Guidelines provides for a two-level
 enhancement if “the defendant willfully obstructed or impeded, or
 attempted to obstruct or impede, the administration of justice with respect
 to the investigation, prosecution, or sentencing of the instant offense of
 conviction.” Perjury is one example of conduct to which this enhancement
 applies. U.S.S.G. § 3C1.1, cmt. n.4(B). “[A] defendant commits perjury if he
 provides ‘false testimony concerning a material matter with the willful intent
 to provide false testimony, rather than as a result of confusion, mistake, or
 faulty memory.’” United States v. Smith, 804 F.3d 724, 737 (5th Cir. 2015)
 (quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)); see § 3C1.1, cmt.
 n.2.
         Where error is preserved as it is here,2 we review the district court’s
 “application or interpretation of the Sentencing Guidelines de novo and its
 factual findings, such as a finding of obstruction of justice, for clear error.”
 Smith, 804 F.3d at 737. A factual finding is not clearly erroneous if it is
 “plausible in light of the record as a whole.” Id. (quoting United States v.
 Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008)).




         2
           The Government argues that review is for plain error only because Johnson
 did not challenge the district court’s failure to make specific, independent findings
 addressing each element of perjury in his objections before the district court. This
 court, however, has deemed an objection preserved despite the party’s failure to use
 “magic words.” United States v. Johnson, 267 F.3d 376, 380 (5th Cir. 2001). Although
 Johnson’s pro se objection to the obstruction enhancement may not have been as
 articulate as that of an attorney, he argued at sentencing that he did not know exactly
 how he provided false testimony and that he should not be punished for exercising his
 right to testify at trial. Accordingly, we consider his objection sufficiently preserved.
 See United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009).




                                            8
Case: 18-11602      Document: 00515514100          Page: 9     Date Filed: 08/04/2020




                                   No. 18-11602


        Johnson’s objection to the enhancement triggered a duty by the
 district court to “review the evidence and make independent findings
 necessary to establish a willful impediment to or obstruction of justice, or an
 attempt to do the same.” United States v. Perez-Solis, 709 F.3d 453, 469 (5th
 Cir. 2013) (quoting Dunnigan, 507 U.S. at 95). When such an objection is
 raised, the district court should address each element of perjury in a separate
 and clear finding. Dunnigan, 507 U.S. at 95. However, a district court is not
 required to make an explicit finding of willfulness, see United States v. Miller,
 607 F.3d 144, 152 (5th Cir. 2010), and “need not expressly find that the false
 testimony concerned a material matter” where “materiality is obvious.”
 Perez-Solis, 709 F.3d at 470 (internal quotation marks omitted). A finding of
 obstruction “that encompasses all of the factual predicates for a finding of
 perjury” is sufficient. Dunnigan, 507 U.S. at 95. Further, this court has held
 that in making findings in support of § 3C1.1’s application, “it is sufficient
 for the court to adopt adequate findings in a [PSR].” Perez-Solis, 709 F.3d at
 470; see also United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009)
 (holding that, because the defendant bears the burden of demonstrating that
 the PSR is inaccurate, in the absence of rebuttal evidence, the district court
 may properly rely on the PSR).
        Here, the district court adopted the adequate factual findings set forth
 in the PSR, as it was permitted to do. See Perez-Soliz, 709 F.3d at 470. The
 PSR in turn provided that Johnson committed perjury during his trial
 testimony by falsely stating that he could not remember the circumstances of
 the instant bank robbery. The PSR explained that Johnson’s testimony that
 he could not recall the events of the current offense were contradicted by his
 confession of the offense to law enforcement on July 9, 2016, as well as by his
 meetings with Dr. Warren-Phillips wherein he recounted the events of the
 offense in detail. Here, the “materiality is obvious” so the district court was
 not required to make express findings that Johnson’s false testimony




                                        9
Case: 18-11602      Document: 00515514100          Page: 10    Date Filed: 08/04/2020




                                   No. 18-11602


  concerned a material matter. Id. Likewise, its reliance on the factual findings
  set forth in the PSR in support of the enhancement was appropriate. The
  district court did not reversibly err by applying a two-level enhancement for
  obstruction of justice under U.S.S.G. § 3C1.1.
                                 III. Conclusion
         Johnson’s conviction and sentence are affirmed.




                                        10
