                                                                               FILED
                                                                  United States Court of Appeals
                                                                          Tenth Circuit

                         UNITED STATES COURT OF APPEALS September 10, 2008
                                                                      Elisabeth A. Shumaker
                                    TENTH CIRCUIT                         Clerk of Court



 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                             No. 07-3112
                                                   (D.C. No. 06-CR-10217-MLB-01)
 v.
                                                               (D. Kan.)
 JUNIAN JOHNSON,

           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before KELLY, HOLLOWAY, and GORSUCH, Circuit Judges.



                                   I. INTRODUCTION

       Defendant–Appellant Junian Johnson was sentenced to eight years in prison after

pleading guilty to one count of possession of a firearm after commission of a felony in

violation of 18 U.S.C. § 922(g)(1). Mr. Johnson filed a timely notice of appeal. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(3), and we AFFIRM.

                                   II. BACKGROUND

       Mr. Johnson was indicted for the offense of being a felon in possession of a



       *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
firearm in violation of 18 U.S.C. § 922(g)(1), a Class C felony that carries a penalty of

not more than 10 years’ imprisonment, a fine, or both. See 18 U.S.C. § 924(a)(2). After

entering into a plea agreement with the United States Attorney, Mr. Johnson pled guilty to

that charge.

         According to the Presentence Investigation Report (PIR), the United States

Sentencing Guideline range for imprisonment under the facts of this case is 30 to 37

months. However, at the request of the district judge, a probation officer prepared a

memorandum in which she calculated a departure using the Guidelines. The probation

officer used an “extrapolation method” to calculate a new Guideline range of 51 to 63

months.

         The district judge then prepared a March 29, 2007, letter in which he notified the

parties that, upon review of the PIR, he had concluded that the 30 to 37 month Guideline

sentence might be inadequate. He therefore explained that he was notifying the parties,

pursuant to Fed. R. Crim. P. 32(h), that he was contemplating a greater sentence. After

noting that he believed a sentence greater than that called for under the advisory

Guidelines might be justified under either a “departure” or a “variance,” the district judge

wrote:

                Turning first to the departure, I believe that defendant’s criminal history
         category VI substantially under-represents the seriousness of his criminal
         history or the likelihood that he will commit other crimes. In that regard, I
         asked the probation office to calculate a departure according to the
         requirements of § 4A1.3(a)(4). [The probation officer] believes I could depart
         upward to an advisory guideline range of 51–63 months.
                Now turning to a variance, and in an effort to impose a sentence

                                                -2-
       sufficient, [but] not greater than necessary to comply with the statute, I have
       considered the following: the charge of which defendant stands guilty, felon
       in possession of a firearm, is serious, even when viewed in isolation. It is far
       more serious because the unchallenged record shows that since age 15
       (defendant is now 30), defendant has been convicted of five firearm-related
       offenses. In addition, since age 15, defendant has been arrested on at least five
       occasions on charges relating to firearms. Of course, defendant has
       convictions and arrests for other offenses, as well. It is abundantly clear that
       defendant has no respect for the law and that his numerous and serious past
       involvements with the criminal justice system have done nothing to deter his
       criminal conduct. A 37 month sentence called for the by advisory guidelines
       is not sufficient to protect the public from further crimes of the defendant. To
       the extent it is relevant, it is conceivable that defendant may benefit from
       extended incarceration which allow[s] him to obtain needed educational or
       vocational training, particularly in view of the fact that by his own admission,
       he has never held employment for any substantial period of time.
       Incarceration is the only kind of sentence available under the circumstances
       and I am not aware of any sentence disparity which would result from a
       sentence greater than that available under a guideline calculation.

       At the following sentencing hearing and in his sentencing order, the district judge

explained that he was varying from the Guideline range of 30 to 37 months for the

reasons set out in his March 29th letter, which he incorporated into his sentencing order.

The judge explained at the sentencing hearing that he “did not believe that a 30 month or

for that matter 37 month sentence is a responsible sentence.” The judge imposed an

eight year sentence, giving Mr. Johnson “some credit for acceptance of responsibility”

and stating that “Mr. Johnson needs to get off the street for his own benefit and the

benefit of society.”

                                    III. DISCUSSION

       Mr. Johnson argues on appeal that his sentence should be remanded because it is

unreasonable. In effect, he argues that his sentence is procedurally unreasonable because:

                                             -3-
(1) the probation officer’s extrapolation was flawed and should not have been considered

in determining the sentence; (2) he did not receive notice of the probation officer’s

extrapolation memorandum; and (3) the district judge did not adequately explain his

reasons for imposing the 8 year sentence. He further argues that an 8 year sentence in this

case is substantively unreasonable.1

                              1. Procedural Reasonableness

       We first address Mr. Johnson’s challenge to the procedural reasonableness of his

sentence. “In reviewing a sentence on appeal, this court must first determine whether the

sentence is procedurally reasonable.” United States v. Munoz-Nava, 524 F.3d 1137, 1146

(10th Cir. 2008). If a district court bases a sentence on a factor not within the categories

set forth in 18 U.S.C. § 3553(a), this is a form of procedural error because § 3553(a)

mandates consideration of its enumerated factors and implicitly forbids consideration of

factors outside its scope. United States v. Smart, 518 F.3d 800, 803–04 (10th Cir. 2008).

Further, to impose a procedurally reasonable sentence, the sentencing court must afford

defendants their rights under the Federal Rules of Criminal Procedure. United States v.

Geiner, 498 F.3d 1104, 1107 (10th Cir. 2007). The appellate court must ensure that the

district court did not fail to adequately explain the chosen sentence–including an



       1
          In his brief, which was submitted before the Supreme Court’s decision in Gall v.
United States, appellant argued that his sentence was so far outside the Guidelines range
that it should be presumptively unreasonable. However, Gall now makes clear that we
may not apply a presumption of unreasonableness for sentences outside the Guideline
range. Gall v. United States, 128 S. Ct. 586, 597 (2007).

                                             -4-
explanation for any deviation from the Guidelines range. Gall, 128 S. Ct. at 597; see also

18 U.S.C. § 3553(c) (requiring the sentencing court to state its reasons for imposing a

sentence outside of the Guidelines).

       As indicated above, Mr. Johnson argues that his sentence is procedurally

unreasonable because: (1) the probation officer’s extrapolation was flawed and should not

have been considered in determining the sentence; (2) he did not receive notice of the

probation officer’s extrapolation memorandum2; and (3) the district judge did not

adequately explain his reasons for imposing the 8 year sentence. However, it is

undisputed that Mr. Johnson never raised these arguments in the district court. Therefore,

we review them for plain error. See United States v. Romero, 491 F.3d 1173, 1176–77

(10th Cir. 2007) (holding that plain error review is used for unpreserved challenges to the

method by which the district court arrived at a sentence, including arguments that the

sentencing court failed to explain adequately the sentence imposed under the statutory

factors in § 3553(a)); United States v. Atencio, 476 F.3d 1099, 1104–05, 1105 n.6 (10th

Cir. 2007), overruled on other grounds by Irizarry v. United States, 128 S. Ct. 2198

(2008) (holding that claims of Rule 32(h) notice error are reviewed for plain error in the



       2
         Although it is not entirely clear from his brief, Mr. Johnson appears to be arguing
that this lack of notice violates Rule 32(h) of the Federal Rules of Criminal Procedure.
See Fed R. Crim. P. 32(h) (providing that “[b]efore the court may depart from the
applicable sentencing range on a ground not identified for departure either in the
presentence report or in a party’s prehearing submission, the court must give the parties
reasonable notice that it is contemplating such a departure,” and “[t]he notice must
specify any ground on which the court is contemplating a departure”).

                                             -5-
absence of an objection); see also Fed. R. Crim. P. 52(b) (“A plain error that affects

substantial rights may be considered even though it was not brought to the court’s

attention.”).

       The plain error standard presents a heavy burden for an appellant, and that burden

is not often satisfied. Romero, 491 F.3d at 1178. “‘Plain error occurs when there is (1)

error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects

the fairness, integrity, or public reputation of judicial proceedings.’” Munoz-Nava, 524

F.3d at 1147 (quoting United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc)). For an error to have affected substantial rights, the error must have

been prejudicial, i.e., it must have affected the outcome of the district court proceedings.

Romero, 491 F.3d at 1179. The burden to show that substantial rights have been

prejudiced is on the party that failed to raise the issue below. Id.

       Our decision in United States v. Romero is helpful to our analysis in this case. In

Romero, the appellant argued that his sentence was unreasonable under 18 U.S.C.

§ 3553(c) because the district court failed to explain its reason for rejecting his argument

for a below-Guidelines sentence. Romero, 491 F.3d at 1175. The appellant did not raise

the procedural objection he asserted on appeal after the district court imposed sentence.

Id. at 1176. We held that it was clear that under plain error review the appellant’s

procedural reasonableness argument under § 3553(c) could not succeed because the

appellant did not argue on appeal that the court’s failure to explain his sentence affected

his substantial rights. Id. at 1179. We emphasized that we would not supply such an

                                              -6-
argument for him. Id.

       Turning to the case before us, because Mr. Johnson did not raise any of the

procedural arguments he asserts on appeal in the district court, he has the burden of

demonstrating under plain error review that an error affected his substantial rights, i.e.,

that it affected the outcome of the district court proceedings. See id. (recognizing, under

plain error review, that the burden to show that substantial rights have been prejudiced is

on the party that failed to raise the issue below, and for an error to have affected

substantial rights, the error must have affected the outcome of the district court

proceedings ). We find that Mr. Johnson has not carried this burden with regard to any of

his asserted errors.

       First, even if the probation officer’s extrapolation was flawed, there is no

indication that it was considered in determining the sentence,3 and therefore there is no

indication that any error with regard to it affected the outcome of this case. The probation

officer’s memorandum relates to calculating a departure. However, the district judge’s

sentencing order makes clear that he chose to use a variance rather than a departure. See

Atencio, 476 F.3d at 1101 (explaining that when a court reaches a sentence above or

below the recommended Guidelines range through application of Chapters Four or Five

of the Sentencing Guidelines, the resulting increase or decrease is referred to as a

“departure,” while when a court enhances or detracts from the recommended range


       3
        The appellant candidly admitted as much at oral argument by acknowledging
that, while the extrapolation troubled him, he could not see where the judge relied on it.

                                             -7-
through application of § 3553(a) factors, the increase or decrease is called a “variance”).

The district judge explained: “For the reasons set forth in its March 29 letter, the court

varied from the advisory guideline sentence of 30 to 37 months and imposed a sentence

of eight years.” The district judge’s March 29th letter explicitly discusses the factors he

considered with regard to setting a sentence by using a variance, and the probation

officer’s extrapolation is not among those factors. Further, the extrapolation is only

alluded to in the district judge’s letter within his discussion of a possible departure–a

route he decided not to take.

       Second, even if Mr. Johnson did not receive notice of the probation officer’s

possibly flawed extrapolation memorandum, and this lack of notice was in violation of

Rule 32(h), Mr. Johnson has not demonstrated that such lack of notice prejudiced his

substantial rights, i.e., affected the outcome of the district court proceedings. The

protections of Rule 32(h) do not apply to variances, but to departures. Irizary, 128 S. Ct.

at 2201–03; Fed. R. Crim. P. 32(h). As explained above, the district judge chose to vary

rather than depart from the Guidelines, and there is no indication that the judge relied on

the memorandum. Therefore, even if notice of the departure memorandum had been

given, and Mr. Johnson had exposed any flaws in its analysis, it has not been shown that

this would have had any effect on the district judge’s decision to vary or on the extent of

the variance.

       Finally, assuming the district judge did not adequately explain his reasons for

imposing the eight year sentence in this case, Mr. Johnson has not demonstrated that this

                                             -8-
affected his substantial rights. In Romero, we held that it was clear that under plain error

review the appellant’s procedural reasonableness argument under § 3553(c) could not

succeed because the appellant did not argue on appeal that the court’s failure to explain

his sentence affected his substantial rights. Romero, 491 F.3d at 1179. We emphasized

that we would not supply such an argument for the appellant. Id. Likewise, here Mr.

Johnson’s argument that the district judge did not adequately explain his reasons for the

eight year sentence cannot succeed: Mr. Johnson has not argued on appeal that the district

judge’s failure to explain his sentence affected his substantial rights, and we will not

supply such an argument for him.

                              2. Substantive Reasonableness

       The final issue we must address is whether Mr. Johnson’s sentence is substantively

reasonable. Assuming that the district court’s sentencing decision is procedurally sound,

the appellate court should consider the substantive reasonableness of the sentence

imposed under an abuse-of-discretion standard. Gall, 128 S. Ct. at 597. A district court

abuses its discretion when it renders a judgment that is “‘arbitrary, capricious, whimsical,

or manifestly unreasonable.’” Munoz-Nava, 524 F.3d at 1146 (quoting United States v.

Byrne, 171 F.3d 1231, 1235–36 (10th Cir. 1999)).

       “[S]ubstantive reasonableness addresses ‘whether the length of the sentence is

reasonable given all the circumstances of the case in light of the factors set forth in 18

U.S.C. § 3553(a).’” United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008)

(quoting United States v. Verdin-Garcia, 516 F.3d 884, 895 (10th Cir. 2008)). However,

                                             -9-
our analysis does not change based on the degree of a variance. United States v. Wittig,

528 F.3d 1280, 1286 (10th Cir. 2008). We may consider the extent of the deviation, but

we 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, 128 S. Ct. at 597; see also Smart, 518 F.3d

at 807 (explaining that a district court need not necessarily provide “extraordinary” facts

to justify any statutorily permissible sentencing variance, even one as large as the 100%

variance in Gall v. United States). “‘It is not for the Court of Appeals to decide de novo

whether the justification for a variance is sufficient or the sentence reasonable, and we

must therefore defer not only to a district court’s factual findings but also to its

determinations of the weight to be afforded to such findings.’” Wittig, 528 F.3d at 1286

(quoting Smart, 518 F.3d at 808). This standard of review does not change even if the

facts of the case are less than extraordinary. Id. And 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, 128 S. Ct. at 597.

       We now turn to the substantive reasonableness of Mr. Johnson’s eight year

sentence. At the sentencing hearing and in his sentencing order, the district judge made it

clear that he was relying on the justifications contained in his March 29th letter (which he

incorporated into his sentencing order) in setting the variance. All of the justifications

given in his March 29th letter are relevant to a § 3553(a) sentencing determination, and

some of the justifications demonstrate that the advisory Guidelines sentencing range does

not fully account for the seriousness of Mr. Johnson’s offense.

                                              -10-
       In his March 29th letter, the district judge explained that, after reviewing the

presentence report, he had concluded that the advisory Guideline range might be

inadequate. See 18 U.S.C. § 3553(a)(4) (“The court . . . shall consider . . . (4) the kinds of

sentence and the sentencing range established [by the Guidelines].”). The district judge

concluded that the charge of which Mr. Johnson stood guilty, felon in possession of a

firearm, was serious, even when viewed in isolation. See id. § 3553(a)(1)–(2)(A) (“The

court . . . shall consider . . . (1) the nature . . . of the offense . . . ; [and] (2) the need for the

sentence imposed . . . (A) to reflect the seriousness of the offense . . . .”). He further

explained that the charge was far more serious because the unchallenged record showed

that since age fifteen Mr. Johnson had been convicted of five firearm-related offenses and

had been arrested on at least five occasions on charges relating to firearms. See id. (“The

court . . . shall consider . . . (1) . . . the history and characteristics of the defendant; [and]

(2) the need for the sentence imposed . . . (A) to reflect the seriousness of the offense . . .

.”). The district judge also noted that Mr. Johnson had convictions and arrests for other

offenses as well. See id.

       The district judge concluded that it was clear that Mr. Johnson had no respect for

the law, and that his numerous and serious past involvements with the criminal justice

system had done nothing to deter his criminal conduct. See id. § 3553(a)(2)(A)–(B)

(“The court . . . shall consider . . . (2) the need for the sentence imposed . . . (A) . . . to

promote respect for the law [and] (B) to afford adequate deterrence to criminal conduct . .

. .”). The district judge additionally determined that a 37 month sentence called for the by

                                                 -11-
advisory Guidelines was not sufficient to protect the public from further crimes of Mr.

Johnson. See id. § 3553(a)(2)(C) (“The court . . . shall consider . . . (2) the need for the

sentence imposed . . . (C) to protect the public from further crimes of the defendant . . .

.”).

       The district judge also observed that it was conceivable that defendant might

benefit from extended incarceration which would allow him to obtain needed educational

or vocational training, particularly in view of the fact that he had never held employment

for any substantial period of time. See id. § 3553(a)(2)(D) (“The court . . . shall consider .

. . (2) the need for the sentence imposed . . . (D) to provide the defendant with needed

educational or vocational training . . . .”). Finally, the judge acknowledged that he was

not aware of any sentence disparity which would result from a sentence greater than that

available under a Guideline calculation. See id. § 3553(a)(6) (“The court . . . shall

consider . . . (6) the need to avoid unwarranted sentence disparities among defendants

with similar records who have been found guilty of similar conduct . . . .”).

       At the sentencing hearing itself, the district judge explained that he had also taken

into account the fact that Mr. Johnson had accepted responsibility for his crime. See id.

§ 3553(a)(2)(A) (“The court . . . shall consider . . . (2) the need for the sentence

imposed . . . (A) . . . to provide just punishment for the offense . . . .”).

       We hold that the district judge did not abuse his discretion in this case. The

district judge relied upon a variety of factors relevant to a sentencing determination under

§ 3553(a), some of which indicated that the Guideline range underestimated the

                                               -12-
seriousness of Mr. Johnson’s crime. Further, we are unable to disagree with the district

judge’s determination that the § 3553(a) factors that he considered justified the variance

in this case. We “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, 128 S. Ct. at 597.

Although there may be other reasonable sentences that the district judge could have

chosen, we uphold the district judge’s sentence. See id. (holding that the fact that the

appellate court might reasonably have concluded that a different sentence was appropriate

is insufficient to justify reversal).

                                        IV. CONCLUSION

       We AFFIRM the sentence handed down by the district judge. Mr. Johnson has

not shown any procedural error that affected his substantial rights, and we cannot say the

sentence imposed is substantively unreasonable.
                                                         IT IS SO ORDERED.
                                                         Entered for the Court,

                                                         William J. Holloway, Jr.
                                                         Circuit Judge




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