     Case: 17-60852   Document: 00515389531       Page: 1   Date Filed: 04/21/2020




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

                                   No. 17-60852                        FILED
                                                                   April 21, 2020
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk

             Plaintiff–Appellee,

v.

JERRY ANTWAN JOHNSON, also known as Head,

             Defendant–Appellant.




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before OWEN, Chief Judge, and WIENER and DENNIS, Circuit Judges.
OWEN, Chief Judge:
      Jerry Antwan Johnson pleaded guilty to violating 18 U.S.C. §§ 922(g)
and 924(e) by knowingly possessing a firearm after he had been convicted of a
misdemeanor crime of domestic violence. The probation officer prepared a
presentence report (PSR) and a confidential sentencing recommendation
(Recommendation). In imposing an above-guidelines sentence of 72 months of
imprisonment, the district court relied on factual allegations in the
Recommendation that were not in the PSR and that were not disclosed to
Johnson. This violated Federal Rule of Criminal Procedure 32, and based on
the facts before us, the plain error standard of review has been met. We vacate
Johnson’s sentence and remand for further proceedings.
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                                         No. 17-60852
                                              I
      After Johnson pleaded guilty, a probation officer prepared a PSR. The
PSR calculated a total offense level of 21. The probation officer calculated 15
points of criminal history based on Johnson’s misdemeanor convictions,
however, the maximum points that could be applied for those convictions was
4. 1 Accordingly, the probation officer attributed only 4 points of criminal
history, placing Johnson in Category III. The resulting advisory sentencing
range was 46 to 57 months of imprisonment.
      The PSR also detailed previous charges that did not result in conviction.
While the instant offense was Johnson’s first felony conviction, it was not his
first felony charge.
      The PSR recommended an upward variance “to ensure the sentence
reflects the nature and circumstances of the offense and the history and
characteristics of the defendant.” One justification for the variance was that
Johnson had several misdemeanor convictions for which no criminal history
points were allocated. Johnson was provided the PSR and made no objections.
      The probation officer also prepared the Recommendation, which
included the following factual summary:
      As this investigation unfolded, it became increasingly clear the
      local police agencies in Clarksdale, Mississippi, had become
      desperate to get this defendant off the street, and were forced to
      ask for federal assistance. The defendant, as reflected by his
      criminal history, has been a public nuisance, and a danger to
      anyone in the community who stood in defiance of him. The
      defendant has likely intimidated numerous witnesses in the past
      to avoid felony prosecution. He has asserted his dominion over
      defenseless women he had relationships with, which is
      documented by his domestic violence convictions. The lead agent
      in this case described the defendant as a “known shooter,” and
      “public enemy number 3 in the Clarksdale area.” The defendant


      1   See U.S.S.G. § 4A1.1 (2016).
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                               No. 17-60852
     is a known gang member and is a documented participant in at
     least two shootings. The defendant is violent, and clearly has a
     complete lack of respect for the law. The sheer volume of his
     misdemeanor convictions paints a picture of a violent, disruptive,
     disrespectful, assertive, angry, and frankly, dangerous person.
     Communities burdened with individuals like the defendant often
     seek federal help to rid their community of systemic offenses
     caused by such individuals they have failed to control. This case
     is a perfect example of a community forced to plead for federal
     assistance to stop such an individual. Pursuant to 18 U.S.C.
     § 3553(a)(1), the Court may wish to consider an upward variance
     to ensure the sentence reflects the nature and circumstance of the
     offense and the history and characteristics of the defendant, who
     in this case has participated in criminal behavior since 2003. The
     defendant has several misdemeanor convictions for which no
     criminal history points were allocated. An upward variance may
     be necessary to ensure the sentence in this case adequately
     promotes respect for the law, provides just punishment for the
     offense, affords adequate deterrence to the defendant’s criminal
     conduct, and protects the public from further crimes of the
     defendant. Therefore, for the assurance of community safety, the
     undersigned respectfully recommends the defendant receive a
     sentence of 120 months, which is the statutory maximum penalty
     allowed, in order to ensure public safety and restore the public
     confidence in local law enforcement. Additionally, based on factors
     in U.S.S.G. § 4A1.3(a)(1), an upward departure may be warranted
     if reliable information indicates the defendant’s criminal history
     category substantially under-represents the seriousness of the
     defendant’s criminal history or the likelihood that the defendant
     will commit other crimes. The defendant has a record of
     continuous violations of the law. There is no evidence to suggest
     the defendant will cease his criminal activity unless removed from
     the area by incarceration. The variance and departure language
     in this case is specifically designed to help punish offenders like
     the defendant when there is a desperate desire by local
     communities to eliminate systemic criminal behavior.
     At sentencing, it became clear that the district court was relying on
information contained in the Recommendation. The court observed,
     [I]t’s interesting to the Court that in Clarksdale the witnesses
     seem to be afraid to come in and testify. It’s not that you haven’t
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                                 No. 17-60852
      been charged with things, such as armed robbery. And then the
      witnesses don’t show up for trial. And I’m not—this is just what I
      have been told by this report that I’ve gotten, that—it says that
      the local police agencies in Clarksdale have become desperate to
      get you off the street and were forced to ask for federal assistance.
Based on that exchange, Johnson’s counsel asked if the report referenced by
the district court had been disclosed to the defense, and the district court
indicated it was a report from the probation office that had not been disclosed.
The court continued,
      That the defendant has likely intimidated numerous witnesses to
      avoid felony prosecution. Otherwise, I see no reason that the
      federal officers would be in Clarksdale to make this case against
      you other than that they’ve been asked to come here because the
      local courts have not had any success in getting witnesses to come
      testify.
Johnson’s counsel identified two charges that were dropped for failure of the
witnesses to appear.
      The court summarized its concerns as it imposed its sentence: “The
Court[] [is] of the opinion that these pages of criminal charges and evidence of
intimidation of witnesses—that the criminal charges—history does not
adequately reflect the seriousness of your—of the record and of the defendant’s
conduct.” “Based on these considerations,” the court sentenced Johnson to 72
months of imprisonment.
      Johnson objected to “any sentence outside the guideline[s] as being
unreasonable.” Johnson requested that the Recommendation be made part of
the record on appeal, and the district court granted that motion. This appeal
followed.
                                       II
      Johnson argues that the presentation of “secret facts” to the district court
in a confidential sentencing recommendation (1) violated the disclosure
requirement in Rule 32 of the Federal Rules of Criminal Procedure, (2) violated
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                                       No. 17-60852
the Due Process clause of the Fifth Amendment, (3) violated the Confrontation
Clause of the Sixth Amendment, and (4) deprived him of his Sixth Amendment
right to counsel. Johnson did not object to the use of such facts in the district
court, so our review is for plain error. 2
       Johnson must show (1) an error or defect, (2) that is clear or obvious, (3)
that affected his substantial rights, and (4) that we should exercise our
discretion to remedy the error because it “seriously affect[s] the fairness,
integrity or public reputation of judicial proceedings.” 3 An error is clear or
obvious if it is not subject to reasonable dispute. 4 We first address Johnson’s
contentions regarding Rule 32 because “we are obliged to consider non-
constitutional issues that would be dispositive of the appeal before we reach a
constitutional question.” 5
       Rule 32 provides for preparation and disclosure of a PSR to assist the
district court in arriving at a fair and reasonable sentence. 6 Rule 32(e)(2)



       2  United States v. Potts, 644 F.3d 233, 236 (5th Cir. 2011) (citing United States v.
Salinas, 480 F.3d 750, 755 (5th Cir. 2007)).
        3 Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting

United States v. Olano, 507 U.S. 725, 736 (1993)).
        4 Id.
        5 United States v. Howell, 838 F.3d 489, 492-93 (5th Cir. 2016) (first citing Nw. Austin

Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (“[I]t is a well-established
principle governing the prudent exercise of this Court’s jurisdiction that normally the Court
will not decide a constitutional question if there is some other ground upon which to dispose
of the case.” (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam))); and
then citing Jean v. Nelson, 472 U.S. 846, 854 (1985) (“Prior to reaching any constitutional
questions, federal courts must consider nonconstitutional grounds for decision.” (quoting Gulf
Oil Co. v. Bernard, 452 U.S. 89, 99 (1981))); and then citing Clay v. Sun Ins. Office Ltd., 363
U.S. 207, 209 (1960) (“By the settled canons of constitutional adjudication the constitutional
issue should have been reached only if, after decision of two non-constitutional questions,
decision was compelled.”); and then citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288,
347 (1936) (BRANDEIS, J., concurring) (“The Court will not pass upon a constitutional
question although properly presented by the record, if there is also present some other ground
upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two
grounds, one involving a constitutional question, the other a question of statutory
construction or general law, the Court will decide only the latter.”)).
        6 FED. R. CRIM. P. 32(d), (e)(2).

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                                      No. 17-60852
requires that “[t]he probation officer must give the presentence report to the
defendant, the defendant’s attorney, and an attorney for the government at
least 35 days before sentencing unless the defendant waives this minimum
period.” 7 Johnson did not waive that minimum period, and the PSR that was
provided to him and his counsel did not contain the assertion in the
Recommendation that Johnson “has likely intimidated numerous witnesses in
the past to avoid felony prosecution.”
       “The touchstone of [R]ule 32 is reasonable notice” to allow counsel to
engage in adversarial testing at sentencing. 8 Rule 32(d)(2) requires the PSR
to contain “the defendant’s history and characteristics, including . . . any
circumstances affecting the defendant’s behavior that may be helpful in
imposing sentence,” as well as “any other information that the court requires,
including information relevant to the factors under 18 U.S.C. § 3553(a).” 9 Rule
32(i)(1)(C) requires a court to permit the “parties’ attorneys to comment on the
probation officer’s determinations and other matters relating to an appropriate
sentence.” 10 Further, a defendant has a due process right to review and object
to a PSR. 11 However, while Rule 32(e)(2) requires disclosure of the PSR, Rule
32(e)(3) permits a district court, by local rule or by order in a case, to “direct
the probation officer not to disclose to anyone other than the court the officer’s
recommendation on the sentence.” 12 The Northern District of Mississippi has
such a rule. 13


       7 FED. R. CRIM. P. 32(e)(2).
       8 United States v. Angeles-Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005) (quoting
United States v. Andrews, 390 F.3d 840, 845 (5th Cir. 2004)).
       9 FED. R. CRIM. P. 32(d).
       10 FED. R. CRIM. P. 32(i)(1)(C).
       11 United States v. Jackson, 453 F.3d 302, 305-06 (5th Cir. 2006).
       12 FED. R. CRIM. P. 32(e)(3).
       13 DISCLOSURE OF INITIAL SENTENCE RECOMMENDATION, Rule 32, Local Uniform

Criminal Rules of the U.S. District Court for the Northern District of Mississippi (April 30,
2013) (available here: https://bit.ly/2RdcZhm).
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                                 No. 17-60852
      Johnson maintains that although Rule 32(e)(3) contemplates that a
probation officer’s sentencing recommendation to the court will be confidential,
the Rule must be strictly limited to maintaining confidentiality of only “a
numeric range, or alternatively, a justification section that only includes facts
disclosed in the PSR.” We cannot agree with such a constraint on a Rule
32(e)(3) recommendation. A numeric range without justification or reasoning
does not aid the district court in determining a sentence that satisfies the
factors in 18 U.S.C. § 3553(a). However, Rule 32(e)(3) cannot be used to shield
undisclosed facts or factual allegations upon which a probation officer
substantially relies in recommending an upward departure or variance from
the Guidelines sentencing range or the selection of a particular sentence within
that range.   The questions we must resolve in the present case are whether
the Recommendation substantially relied on facts or factual allegations that
were not disclosed to Johnson and whether the district court relied upon those
undisclosed facts in selecting the sentence it imposed.
      The PSR detailed Johnson’s extensive criminal history in his home of
Clarksdale, Mississippi. For example, and of particular importance here, one
of Johnson’s convictions for misdemeanor domestic violence revealed that he
intimidated the victim. Police witnessed Johnson slapping the female victim
and detained Johnson in the police car. While Johnson was in the back of the
car, he began kicking the inside of the window and screamed at the woman not
to sign the domestic violence packet.       Officers subdued Johnson with a
chemical agent to prevent him from kicking the window out of the car.
However, the woman did not sign the packet.
      The PSR also described two armed robbery charges against Johnson that
were dismissed when the victims failed or refused to appear at trial. The first
occurred in 2004, when Johnson allegedly robbed two individuals at gunpoint
and shot one of them. Johnson’s trial was to commence four years later, and
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                                 No. 17-60852
the “two witnesses/victims in the case were subpoenaed to appear for trial;
however, their whereabouts were unknown to the court or counsel.” The trial
was reset, but the witnesses “again failed and/or refused to appear.” The state
court found no justifiable reason why the case had not been tried earlier and
“no plausible explanation as to why the witnesses/victims continued to refuse
to cooperate.” Accordingly, the state trial court dismissed the charges.
      In April 2016, Johnson allegedly robbed two individuals at gunpoint.
Both victims signed affidavits before police officers that indicated that Johnson
had robbed them.       Based on those affidavits, officers obtained an arrest
warrant from a Mississippi court and arrested Johnson. While Johnson was
in jail, the two witnesses approached officers with typed affidavits “advising
they did not wish or intend to prosecute” Johnson.         The affidavits were
notarized by an attorney in Mississippi.
      Though the Recommendation asserted that Johnson “likely intimidated
numerous witnesses in the past to avoid felony prosecutions,” the PSR is devoid
of such an allegation; nor is there evidence of witness intimidation other than
during the domestic violence incident. There is no information in the PSR that
supports the district court’s statements at sentencing that “it’s interesting to
the Court that in Clarksdale the witnesses seem to be afraid to come in and
testify. It’s not that you haven’t been charged with things, such as armed
robbery. And then the witnesses don’t show up for trial.” The district court
also concluded at sentencing that there was “evidence of intimidation of
witnesses,” while the PSR contained information that Johnson threatened one
victim of misdemeanor domestic violence while he was detained in the back of
a police car. That is not evidence of intimidation of more than one witness, nor
does it relate to the dismissal of an armed robbery charge due to the failure of
witnesses to appear.


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                                    No. 17-60852
      We conclude that the failure to disclose in the PSR information about
witness intimidation, if any, in connection with either or both of the dismissed
armed robbery charges, and the district court’s reliance on witness
intimidation in connection with a dismissed armed robbery charge was error.
The United States Probation Office acts as an arm of the court when it prepares
PSRs and sentencing recommendations. 14 The district court expressly relied,
in part, on the Recommendation as providing evidence of witness intimidation
to justify an above-guidelines sentence.        Witness intimidation would be a
“circumstance[] affecting the defendant’s behavior that may be helpful in
imposing [the] sentence or in correctional treatment,” 15 and the allegations and
any evidence of such intimidation should have been included in the PSR and
disclosed to Johnson and his counsel well in advance of the sentencing hearing.
      In some circumstances, an error is “evident from a plain reading of the
statute and thus, is obvious.” 16     The error is evident here.       Rule 32(d)(2)
mandates that the PSR “must also contain . . . any circumstances affecting the
defendant’s behavior that may be helpful in imposing [the] sentence or in
correctional treatment.” 17 While we recognize there is an element of judgment
in determining what information “may be helpful in imposing [the] sentence,”
in the present case, the likelihood of witness intimidation was an important
factor in the probation office’s sentencing recommendation. The information
and conclusions should have been disclosed in the PSR as required by Rule
32(d)(2), and that disclosure should have been made at least 35 days prior to
sentencing in compliance with Rule 32(e)(2).




      14 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018) (citing Molina-
Martinez v. United States, 136 S. Ct. 1338, 1342 (2016)).
      15 See FED. R. CRIM. P. 32(d)(2)(A).
      16 United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996).
      17 FED. R. CRIM. P. 32(d)(2).

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                                     No. 17-60852
       Johnson has also shown that the error affected his substantial rights. To
satisfy the third prong, the defendant ordinarily must show “a reasonable
probability that, but for the error, the outcome of the proceeding would have
been different.” 18 The district court expressly relied on the failure of witnesses
to appear and testify at a trial on an armed robbery charge and “evidence of
intimidation of witnesses” in imposing its above-guidelines sentence.
       To be sure, there are independent reasons to support the district court’s
sentence, wholly apart from any witness intimidation that might have occurred
in connection with the dismissed armed robbery charges.                   In its written
justification, the district court adopted the description in the Recommendation
that the defendant’s pattern of criminal behavior beginning in 2003 and
convictions for which no criminal history points were allocated justified an
upward variance to ensure the sentence “adequately promotes respect for the
law,   provides     just   punishment       for   the    offense,     affords   adequate
deterrence . . . and protects the public from the crimes of the defendant.” The
record supports the district court’s assessment in those respects. However,
based on the district court’s statements at the sentencing hearing, there is a
reasonable probability that its sentence would have been different had the
district court not relied on its assessment of witness intimidation with respect
to the dismissed armed robbery charges in choosing the sentence to be
imposed. 19
       Because Johnson has satisfied the first three prongs of plain error
review, we have discretion to correct the error if it “seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings.” 20               Like


       18Rosales-Mireles, 138 S. Ct. at 1904-05 (internal quotation marks omitted) (quoting
Molina-Martinez, 136 S. Ct. at 1338).
      19 See United States v. Davila, 569 U.S. 597, 612 (2013).
      20 United States v. Olano, 507 U.S. 725, 736 (1993) (alteration in original) (quoting

United States v. Atkinson, 297 U.S. 157, 160 (1936)).
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                                       No. 17-60852
guidelines miscalculations, the undisclosed facts “ultimately result from
judicial error.” 21     The “public legitimacy of our justice system relies on
procedures that are neutral, accurate, consistent, trustworthy, and fair.” 22 The
public reputation of judicial proceedings would be rightly diminished if we
allowed such errors to go uncorrected.
       We are cognizant that Johnson has not argued to this court that the
allegations of witness intimidation are untrue. He has had sufficient notice
since sentencing and has not contended that, given the opportunity, he would
present evidence that there was no witness intimidation. Nevertheless, the
district court’s justification for an upward variance from the guidelines
requires a sufficient evidentiary basis, and in the present record, there is no
evidence of intimidation of witnesses in connection with the dismissed armed
robbery charges. 23 There is only evidence that Johnson intimidated a witness
after he was detained for a domestic violence offense.
       The district court committed significant procedural error in assessing its
sentence. The use of undisclosed facts to justify an above-guidelines sentence
seriously affects the fairness, integrity, and public reputation of judicial
proceedings. 24 Because we determine that Johnson’s sentencing violated
Criminal Rule 32, we do not reach Johnson’s constitutional claims.
                                  *            *           *
       Johnson’s sentence is VACATED, and we REMAND to the district court
for resentencing.




       21 See Rosales-Mireles, 138 S. Ct. at 1908.
       22 Id. (internal quotation marks and citation omitted).
       23 See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (citing United States

v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)).
       24 See Puckett v. United States, 556 U.S. 129, 135 (2009).

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