     Case: 17-10502      Document: 00514481807         Page: 1    Date Filed: 05/22/2018




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

                                                                                FILED
                                    No. 17-10502                            May 22, 2018
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

KEVIN JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:16-CR-240-1


Before BENAVIDES, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM: *
       Kevin Johnson pleaded guilty to possession of cocaine with intent to
distribute and was sentenced to an above-guidelines sentence of 180 months
in prison to be followed by a three-year term of supervised release. He now
challenges the district court’s application of an enhancement for possession of
a dangerous weapon, U.S.S.G. § 2D1.1(b)(1), and an enhancement for
maintaining a premises for drug trafficking, U.S.S.G. § 2D1.1(b)(12).                            He


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-10502

further   asserts    that   his   above-guidelines   sentence   is   substantively
unreasonable.
      We review sentences for “any significant procedural error” and, if there
is no such error, substantive reasonableness under an abuse of discretion
standard. United States v. Johnson, 619 F.3d 469, 471-72 (5th Cir. 2010)
(citing Gall v. United States, 552 U.S. 38, 50-51 (2007)). The district court’s
application of the Guidelines is reviewed de novo, and its fact findings are
reviewed for clear error. United States v. Trujillo, 502 F.3d 353, 356 (5th Cir.
2007). The determination that application of either challenged enhancement
is warranted is a factual finding that will be upheld as long as it is plausible
in light of the record as a whole. United States v. Guzman-Reyes, 853 F.3d 260,
263 (5th Cir. 2017); United States v. Romans, 823 F.3d 299, 317, 321 (5th Cir.),
cert. denied, 137 S. Ct. 195 (2016).
      The district court did not clearly err in applying the dangerous weapons
enhancement. Three firearms were present at a residence where Johnson was
actively engaging in drug trafficking. Accordingly, there was a temporal and
spatial relationship of Johnson, the firearms, and the drug trafficking offense,
which suffices to establish possession. See Romans, 823 F.3d at 317. Because
the Government met its burden of proving possession, the burden shifted to
Johnson to show that it was clearly improbable that the firearms were
connected to his trafficking of cocaine. See United States v. Ruiz, 621 F.3d 390,
396 (5th Cir. 2010). He has not made the requisite showing, as his arguments
regarding ownership and operability are without merit. See United States v.
Mitchell, 31 F.3d 271, 277-78 (5th Cir. 1994); see also United States v.
Jacquinot, 258 F.3d 423, 431 (5th Cir. 2010).
      Johnson’s challenge to the drug premises enhancement also lacks merit.
The facts set forth in the presentence report, and the reasonable inferences



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                                  No. 17-10502

drawn therefrom, establish that Johnson regularly used the residence as a
base for his drug trafficking, coming and going as he pleased. Moreover, he
possessed a key to the residence and a key to a locked closet in a bedroom of
the residence that he occupied when he was present. That Johnson did not
rent or own the residence does not defeat application of the enhancement, and
the district court’s determination that Johnson maintained the residence for
the purpose of drug trafficking is plausible in light of the record as a whole.
See Guzman-Reyes, 853 F.3d at 265.
      In reviewing the substantive reasonableness of a sentence where error
has been preserved, this court considers “the totality of the circumstances,
including the extent of any variance from the Guidelines range” and “must give
due deference to the district court’s decision that the § 3553(a) factors, on a
whole, justify the extent of the variance.” Gall, 552 U.S. at 51. “A non-
Guideline sentence unreasonably fails to reflect the statutory sentencing
factors where it (1) does not account for a factor that should have received
significant weight, (2) gives significant weight to an irrelevant or improper
factor, or (3) represents a clear error of judgment in balancing the sentencing
factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). “The fact
that the appellate court might reasonably have concluded that a different
sentence was appropriate is insufficient to justify reversal of the district court.”
Gall, 552 U.S. at 51. Here, it is not clear that Johnson preserved his challenge
to the substantive reasonableness of his sentence. However, we need not
decide the issue because his challenge fails under the more lenient abuse-of-
discretion standard of review.
      The district court heard and considered Johnson’s argument in favor of
a sentence within the advisory guidelines range. The district court concluded
that, nonetheless, Johnson’s personal and criminal history, the nature of the



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                                 No. 17-10502

offense, and the likelihood that Johnson would reoffend warranted an upward
variance. The reasons given by the district court correspond to the § 3553(a)
factors, such as the need for deterrence and the need to protect the public from
further crimes of the defendant, and provide a sufficient justification for an
upward variance of 18 months. See United States v. McElwee, 646 F.3d 328,
344-45 (5th Cir. 2011).
      AFFIRMED.




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