     Case: 18-31053      Document: 00515067901         Page: 1    Date Filed: 08/07/2019




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

                                                                                FILED
                                    No. 18-31053                           August 7, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

GEORGE JOHNSON,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CR-168-3


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       George Johnson challenges the concurrent 18-month and 12-month
sentences imposed following the revocation of supervised release for his 2016
convictions for conspiracy to distribute and possess with intent to distribute
heroin and for using a communication facility to facilitate a drug offense,
respectively. Johnson contends that his sentences, which exceed the range
provided in the policy statements of the Sentencing Guidelines, are
procedurally unreasonable because the district court did not adequately

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-31053      Document: 00515067901       Page: 2    Date Filed: 08/07/2019


                                    No. 18-31053

explain its reasons for the upward variance and because the court did not take
into account his need for medical care, as required by 18 U.S.C. § 3553(a)(2)(D).
He also challenges the sentences’ substantive reasonableness, asserting that
the court failed to take into account his need for drug rehabilitation, the need
to avoid unwarranted sentencing disparities, and the rehabilitative goals of
supervised release.
      Revocation sentences are generally reviewed under 18 U.S.C. § 3742(a)’s
“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843
(5th Cir. 2011). To the extent Johnson did not object on the aforementioned
grounds in the district court, however, review is for plain error. See United
States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Whitelaw,
580 F.3d 256, 259-60 (5th Cir. 2009). Under the plain error standard, Johnson
must show a forfeited error that is clear or obvious and that affected his
substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We
have discretion to correct such an error but will do so only if it seriously affects
the fairness, integrity, or public reputation of judicial proceedings. Id.
      With respect to the reasons for the sentences, Johnson has not shown the
requisite clear or obvious error. In imposing the sentences, the district court
cited the nature and circumstances of Johnson’s supervised release violations,
his history and personal characteristics, the need for deterrence and protection
of the public, the types of sentences available, and the advisory range set forth
in the policy statements of the Guidelines. See 18 U.S.C. § 3553(a)(1), (2)(B)-
(C), (3), (4)(B). The district court’s listing of the § 3553(a) factors, as well as its
statements at sentencing, are sufficient to “satisfy the appellate court that [it]
has considered the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338,
356 (2007).



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                                 No. 18-31053

      As for Johnson’s contention that the district court failed to consider his
need for medical care, a failure to consider the appropriate § 3553(a) factors
may constitute a procedural sentencing error. See Gall v. United States, 552
U.S. 38, 51 (2007). Although the district court did not list this factor, Johnson
has not shown that the omission constitutes error, plain or otherwise. There
was no evidence presented indicating that the length of Johnson’s prison
sentence would have any effect on the possibility that he would seek substance
abuse treatment on his own. Under the circumstances, Johnson is unable to
show that any failure by the district court to consider this factor rendered his
sentences plainly unreasonable. See Miller, 634 F.3d at 843.
      As for Johnson’s substantive-unreasonableness challenge, although the
18-month and 12-month sentences are above the maximum policy statement
sentence of 11 months, they are within the statutory maximums of 24 and 12
months.   “We have routinely affirmed revocation sentences exceeding the
advisory range, even where the sentence equals the statutory maximum.”
Warren, 720 F.3d at 332 (internal quotation marks and citation omitted). This
matter does not warrant a different result. See id. at 333. Johnson has not
shown that the district court failed to account for a factor that should have
received significant weight, gave significant weight to any irrelevant or
improper factors, or committed a “clear error of judgment in balancing the
sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006).
Accordingly, he has not established error, plain or otherwise. See Warren, 720
F.3d at 332-33; Miller, 634 F.3d at 843. The judgment is AFFIRMED.




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