            Case: 16-16061   Date Filed: 07/25/2017   Page: 1 of 6


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-16061
                         Non-Argument Calendar
                       ________________________

                  D.C. Docket No. 9:13-cr-80033-DMM-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                versus

RUSSELL M. JOHNSON, JR.,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (July 25, 2017)

Before ED CARNES, Chief Judge, HULL and WILSON, Circuit Judges.

PER CURIAM:
              Case: 16-16061     Date Filed: 07/25/2017    Page: 2 of 6


      In 2013 Russell Johnson, Jr. was found guilty of possessing with the intent

to distribute a substance containing a detectable amount of cocaine, in violation of

21 U.S.C. § 841(a), and of being a felon in possession of a firearm, in violation of

18 U.S.C. § 922(g). At the sentence hearing the district court calculated an

advisory guidelines range of 262 to 327 months imprisonment and it found that

Johnson was subject to the Armed Career Criminal Act’s (ACCA) 15-year

mandatory minimum sentence under 18 U.S.C. § 924(e). The court sentenced

Johnson to 192 months imprisonment for each count, with both sentences to run

concurrently. Johnson appealed his conviction and sentences, and we affirmed.

See United States v. Johnson, 570 F. App’x 852 (11th Cir. 2014) (unpublished).

      After the Supreme Court held that the ACCA’s residual clause was

unconstitutionally vague, see Johnson v. United States, 576 U.S. ___, 135 S. Ct.

2551 (2015), Johnson filed a 28 U.S.C. § 2255 motion to vacate his sentence. The

district court found that he had been designated an armed career criminal based on

an offense that fell within the residual clause and that he was due to be

resentenced. Before the resentence hearing, Johnson filed an objection to the

presentence investigation report’s application of a four-level enhancement under

United States Sentencing Guidelines § 2K2.1(b)(6)(B) (2015) for his possession of

a firearm in connection with the drug offense. At the resentence hearing, the

district court overruled that objection and calculated an advisory guidelines range


                                          2
              Case: 16-16061     Date Filed: 07/25/2017    Page: 3 of 6


of 92 to 115 months imprisonment. It denied his request for a downward variance

and sentenced him to 96 months imprisonment for each count, with both sentences

to run concurrently. This is Johnson’s appeal of those sentences.

      Johnson first contends that the district court erred by applying the four-level

enhancement under § 2K2.1(b)(6)(B) for possession of a firearm in connection

with his drug offense. We review de novo the district court’s interpretation of the

guidelines, and we review only for clear error its factual findings. See United

States v. Bohannon, 476 F.3d 1246, 1248 (11th Cir. 2007). Section 2K2.1(b)(6)(B)

provides for a four-level enhancement if the defendant “used or possessed any

firearm or ammunition in connection with another felony offense.” The guidelines

commentary clarifies that for drug trafficking offenses, the enhancement applies

when “a firearm is found in close proximity to drugs, drug-manufacturing

materials, or drug paraphernalia.” Id. § 2K2.1(b)(6)(B) cmt. n.14(B).

      Law enforcement officers found a loaded handgun in Johnson’s dresser

drawer in his bedroom, and they found drugs located throughout his home,

including on the living room couch, on the kitchen counter, and in the kitchen

cupboards. Given those facts, the district court did not err in finding that the gun

was within close proximity of the drugs and that the four-level enhancement under

§ 2K2.1(b)(6)(B) applied.




                                          3
               Case: 16-16061     Date Filed: 07/25/2017    Page: 4 of 6


      Johnson also contends that his sentences are substantively unreasonable. We

review for an abuse of discretion the substantive reasonableness of a sentence.

United States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). “A district court

abuses its discretion when it (1) fails to afford consideration to relevant factors that

were due significant weight, (2) gives significant weight to an improper or

irrelevant factor, or (3) commits a clear error of judgment in considering the proper

factors.” United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc)

(quotation marks omitted). In other words, a sentence is substantively

unreasonable “if, but only if, we are left with the definite and firm conviction that

the district court committed a clear error of judgment in weighing the [18 U.S.C.]

§ 3553(a) factors by arriving at a sentence that lies outside the range of reasonable

sentences dictated by the facts of the case.” Id. at 1190 (quotation marks omitted).

      Johnson contends that the district court failed to consider the fact that the

ACCA’s 15-year mandatory minimum was the reason he declined the

government’s pretrial plea offer and went to trial for his charged crimes. He

asserts that the district court should have varied downward to restore him to the

position he would have been in had he never been subject to the ACCA

enhancement and had he pleaded guilty.

      At Johnson’s resentence hearing the district court noted that while it

understood his argument that the ACCA’s 15-year minimum was “a reason to go to


                                           4
               Case: 16-16061     Date Filed: 07/25/2017    Page: 5 of 6


trial,” it did not find that reason to be a basis for varying downward in light of

Johnson’s “lengthy and extensive criminal history” and the fact that he had

committed perjury at trial, both of which implicated the need to promote respect

for the law and to deter future criminal conduct. See 18 U.S.C. § 3553(a)

(providing that when imposing a sentence the district court must consider “the

nature and circumstances of the offense and the history and characteristics of the

defendant,” as well as the need to “promote respect for the law” and “afford

adequate deterrence to criminal conduct”). Given that “[t]he weight to be accorded

any § 3553(a) factor is a matter committed to the sound discretion of the district

court,” United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007), the district court

did not abuse its discretion in declining to vary downward based on Johnson’s

criminal history and commission of perjury at trial.

      Johnson also contends that his sentences are substantively unreasonable

because the district court failed to consider evidence of his rehabilitation during his

incarceration. But at the resentence hearing Johnson downplayed the gravity of his

crimes, telling the district court that he “didn’t do anything serious” and “didn’t

really do anything wrong.” Those statements undercut Johnson’s argument that he

has been rehabilitated while in prison. The district court did not abuse its

discretion in rejecting Johnson’s rehabilitation argument and deciding that a

downward variance was not warranted. We also note that Johnson’s sentences are


                                           5
              Case: 16-16061     Date Filed: 07/25/2017   Page: 6 of 6


at the low end of the advisory guidelines range, and we “ordinarily . . . expect a

sentence within the Guidelines range to be reasonable.” United States v. Hunt, 526

F.3d 739, 746 (11th Cir. 2008) (alteration in original). For those reasons,

Johnson’s sentences are not substantively unreasonable.

      AFFIRMED.




                                          6
