                                                            [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUITU.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  APR 9, 2010
                                No. 09-14509                      JOHN LEY
                            Non-Argument Calendar                   CLERK
                          ________________________

                     D. C. Docket No. 06-00102-CR-DHB-1

UNITED STATES OF AMERICA,


                                                                  Plaintiff-Appellee,

                                     versus

SABRA HARRISON JOHNSON,

                                                            Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                      for the Southern District of Georgia
                        _________________________

                                 (April 9, 2010)

Before TJOFLAT, BIRCH and ANDERSON, Circuit Judges.

PER CURIAM:

      Sabra Harrison Johnson appeals his 66-month’s prison sentence, imposed

above the Guidelines sentence range of 37 to 46 months’ imprisonment, after
pleading guilty to one count of wire fraud, in violation of 18 U.S.C. § 1343. On

appeal, he argues that the district court, in imposing sentence, erred by considering

his religion, in contravention of U.S.S.G. § 5H1.10 and the due process provisions

of the Fifth Amendment. Specifically, Johnson references the court’s statement

that his case presented yet another example of a “charlatan in religious disguise”

perpetrating a fraudulent scheme.

      As a question of law, we review “de novo . . . whether a factor considered by

the district court in sentencing a defendant is impermissible.” United States v.

Velasquez Velasquez, 524 F.3d 1248, 1252 (11th Cir. 2008) (citation omitted).

“[T]o succeed on a claim that an impermissible factor affected the sentence, the

party challenging the sentence has the initial burden of establishing that the district

court considered an impermissible factor in fashioning the sentence. If . . . the

district court considered an impermissible factor at sentencing, and if the error was

preserved, the burden shifts to the party defending the sentence to show, based on

the record as a whole, that the error was harmless.” United States v. Williams, 456

F.3d 1353, 1362 (11th Cir. 2006), abrogated on other grounds by Kimbrough v.

United States, 552 U.S. 85, 93, 128 S.Ct. 558, 566, 169 L.Ed.2d 481 (2007), as

recognized in United States v Vazquez, 558 F.3d 1224, 1228 n.2 (11th Cir. 2009).




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      The Fifth Amendment of the Constitution provides that “[n]o person shall

. . . be deprived of life, liberty, or property without due process of law.” U.S.

Const. amend. V. The sole interest being protected in a non-capital sentencing

procedure “is the right not to be sentenced on the basis of invalid premises or

inaccurate information.” United States v. Satterfield, 743 F.2d 827, 840 (11th Cir.

1984). The religion of a defendant is a constitutionally impermissible sentencing

factor. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235

(1983) (habeas case).

      “A sentence based on an improper factor fails to achieve the purposes of

§ 3553(a) and may be unreasonable, regardless of length.” Williams, 456 F.3d at

136 (citation omitted). Under U.S.S.G. § 5H1.10, race, sex, national origin, creed,

religion, and socio-economic status are identified as factors “not relevant in the

determination of a sentence.” In United States v. Clay, the government argued that

the district court, in varying downward and imposing a sentence less than one-third

of the low end of the Guidelines sentence range, improperly considered religion

when, after hearing eight witnesses testify about Clay’s post-offense religious

conversion and life changes, it stated: “I do believe that your change is real. And

with God’s help, you will continue on the same path that you are currently on.”

483 F.3d 739, 742-45 (11th Cir. 2007). We held that, although religion is an



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impermissible sentencing factor, the district court did not rely on religion in

sentencing Clay: “The district court did not consider Clay’s religious belief; the

court credited testimony at the sentencing hearing about changes in Clay’s life that

followed his religious conversion. These considerations of postoffense

rehabilitation are appropriate when a district court evaluates the history and

characteristics of the defendant and the need to protect the public from further

crimes of the defendant.” Id. at 745 (citation omitted).

      Here, we are satisfied that the district court did not rely on religion in

sentencing Johnson. Specifically, the court did not consider Johnson’s religious

belief, namely, Christianity, express disdain for his faith, or state or imply that it

was holding Johnson to a higher standard because he was a Christian, a Baptist, or

an ordained minister. To the contrary, the court acknowledged that, under the

Constitution, religious matters had no place in the courtroom before noting that

Johnson, like other “charlatans in religious disguise” before him, took advantage of

the trust people quite naturally place in ordained ministers and religious

organizations in order to perpetrate fraud. Similarly, the court’s statement that

Johnson’s case “necessarily brings into focus the distastefulness of a fraudulent

scheme and activity which is concealed, at least for a time, under some figurative

robes of religion” was an objective comment on the offense conduct, not an



                                            4
indication that religion would play a role in determining his sentence.

      Notably, when the court took notice of Johnson’s apparent contrition and of

his profession that he was on the road to recovery, it did not mention that Johnson

attributed his “reawakened character” to God. Finally, when the court enumerated

the aggravating circumstances justifying an upward variance, it did not include

Johnson’s religion or his religious upbringing or the fact that he was a minister or

his claim that God was redeveloping his character, facts and claims repeatedly

mentioned by Johnson and his counsel in pleadings and mitigation testimony.

Accordingly, Johnson failed to establish that the district court considered an

impermissible factor in fashioning his sentence.

      AFFIRMED.




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