Case: 18-11327 Date Filed: 12/17/2018 Page: 1 of 13
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11327
Non-Argument Calendar
________________________
D.C. Docket No. 3:17-cr-00156-MMH-MCR-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS DEMOND JOHNSON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(December 17, 2018)
Before TJOFLAT, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Travis Johnson appeals his sentence of 105 months in prison after pleading
guilty to distribution of cocaine base and possession of a firearm after a felony
Case: 18-11327 Date Filed: 12/17/2018 Page: 2 of 13
conviction. At sentencing, the district court applied an upward departure under
U.S.S.G. § 4A1.3 after finding that Johnson’s criminal-history category of III
under-represented the seriousness of his criminal history and the likelihood he
would reoffend. The court then imposed a sentence at the high end of the adjusted
guideline range. On appeal, Johnson argues that the court erred in failing to
provide notice before departing upward, that it abused its discretion in applying
§ 4A1.3, and that the sentence is substantively unreasonable. After careful review,
we affirm.
I.
Johnson pled guilty in November 2017 to one count of possession of a
firearm after a felony conviction, in violation of
18 U.S.C. § 922(g)(1), and two
counts of distribution of cocaine base, in violation of
21 U.S.C. § 841(a)(1). At the
plea hearing, he admitted to selling a firearm and crack cocaine to a confidential
informant working with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives.
In January 2018, a probation officer prepared Johnson’s presentence
investigation report (“PSR”), which was revised twice before sentencing. The
initial PSR recommended a total offense level of 21 and a criminal-history
category of III, which established an advisory guideline range of 46–57 months.
After the government objected to the offense-level calculation, the probation
2
Case: 18-11327 Date Filed: 12/17/2018 Page: 3 of 13
officer issued a revised PSR in February 2018 recommending a guideline range of
70–87 months based on a total offense level of 25 and a criminal-history category
of III. The final PSR, issued in March 2018, kept these same calculations.
Each of the PSRs discussed Johnson’s criminal history and noted that a
departure may be warranted under U.S.S.G. § 4A1.3 based on the “adequacy” of
his criminal-history category of III. Johnson’s criminal-history category of III was
based on a total of four criminal-history points: (a) three points for convictions of
attempted second-degree murder and shooting into an occupied vehicle in 2004;
and (b) one point for a cocaine-possession conviction in 2014.
According to the PSRs, Johnson was convicted of attempted murder after he
fired multiple bullets into a car occupied by his ex-girlfriend and another man,
striking him twice. He was sentenced to ten years in prison. While in prison,
Johnson was disciplined nine times for prison violations, including fighting. Then,
after his release to probation in 2013, Johnson violated the terms of his probation
multiple times, including by committing new violations of the law. The 2014
cocaine-possession conviction occurred while he was on probation. His probation
was revoked in 2016, and he was sentenced to 330 days in jail. He was arrested for
drug possession in early August 2017, and one week later, while out on bond for
that offense, he sold cocaine base to the confidential informant in this case.
3
Case: 18-11327 Date Filed: 12/17/2018 Page: 4 of 13
Johnson also had a substantial juvenile record and a number of prior adult
convictions from 1998 to 2003. No criminal-history points were assigned for these
convictions. For the adult convictions, the offenses were varied and included
felony battery on a law enforcement officer, resisting and fleeing an officer, retail
theft, and drug possession.
Sentencing was originally set for February 12, 2018, but the district court
continued the hearing to allow the parties to meet with the probation officer to
resolve outstanding disagreements about the PSR. After the meeting, the
government submitted a “status update” stating, in relevant part, that it “supports
the probation office’s finding that there are potential grounds for an upward
departure” under § 4A1.3. As grounds for that departure, the government cited
Johnson’s conviction for attempted murder, the associated prison and probation
violations, and his commission of offense conduct shortly after being arrested for
drug possession. For his part, Johnson sought a downward departure under
§ 4A1.3.
When sentencing resumed on March 20, 2018, Johnson moved for a
downward departure under § 4A1.3 on the ground that his criminal-history
category overrepresented his criminal history because his attempted-murder
conviction was old and he had been conviction-free from 2003 to 2014. The
government responded that the conduct of conviction was serious and that the
4
Case: 18-11327 Date Filed: 12/17/2018 Page: 5 of 13
conviction-free period from 2003 to 2014 could not be viewed in Johnson’s favor
since he was incarcerated during that time. The government also noted that
Johnson was not assessed any criminal-history points for the probation violations.
The district court denied Johnson’s § 4A1.3 downward-departure request
and then concluded that an upward departure was warranted under the same
provision. Citing the multiple convictions that were not assessed criminal-history
points, the varied nature of those convictions, and the fact that there was almost no
break in Johnson’s criminal activity except when he was in custody, the court
determined that his criminal-history category underrepresented his criminal history
and his likelihood of reoffending. So the court departed upward to criminal-history
category IV. Combined with a total offense level of 25, this established an
advisory guideline range of 84 to 105 months.
The district court then heard argument on the
18 U.S.C. § 3553(a) factors
and allocution from Johnson. The government argued for a sentence at the top of
the new range, emphasizing Johnson’s prior violent history and the facts of this
case showing Johnson’s access to multiple firearms. Johnson requested a sentence
below the guideline range to account for his mental health and substance-abuse
issues and the abuse and neglect he experienced growing up. Johnson personally
addressed the court, expressing remorse for his conduct and a desire to reform.
5
Case: 18-11327 Date Filed: 12/17/2018 Page: 6 of 13
Ultimately, the district court sentenced Johnson to 105 months of
imprisonment, at the high end of the post-departure guideline range. The court
explained that a substantial sentence was necessary to reflect the seriousness of the
offense, promote respect for the law, provide just punishment, and promote the
goals of deterrence and protection of the public. It cited Johnson’s “personal
history of intentional gun violence,” his current involvement in guns and drugs,
and the fact that he had quickly reverted to criminal activity upon being released to
probation after serving a ten-year prison sentence. Along with these aggravating
factors, the court also considered his “challenging” and “disturbing” childhood,
which the court recognized had likely contributed to his criminal activity, and it
credited Johnson’s recognition that he “cannot return to this type of conduct.”
When asked for objections at the end of the hearing, Johnson argued that the
district court erred by failing to provide notice of the § 4A1.3 departure and by
failing to adequately explain the basis for the departure. Overruling the objections,
the court noted that both the probation officer and the government had given notice
of the departure before sentencing. Johnson now appeals his sentence.
II.
In reviewing a sentence, we make sure that it is both free from significant
procedural error and substantively reasonable. Gall v. United States,
552 U.S. 38,
51 (2007). Significant procedural errors include improperly calculating the
6
Case: 18-11327 Date Filed: 12/17/2018 Page: 7 of 13
guideline range and failing to consider the sentencing factors under
18 U.S.C.
§ 3553(a).
Id. If the sentence is procedurally sound, we then consider whether it is
substantively reasonable under the totality of the circumstances, giving due
deference to the district court’s assessment of the § 3553(a) factors. Id.
III.
We first address Johnson’s challenge to the district court’s decision to depart
upward under U.S.S.G. § 4A1.3.
A.
Johnson argues that the district court procedurally erred by failing to provide
notice of its intent to depart upward. As a general rule, district courts must give
notice before departing under the guidelines. 1 See Fed. R. Crim. P. 32(h).
Specifically, Rule 32(h) states,
Before 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. The notice
must specify any ground on which the court is contemplating a
departure.
We review de novo the interpretation of rules of federal procedure. United States
v. Lopez,
562 F.3d 1309, 1311 (11th Cir. 2009).
1
In contrast, no advance notice is required for variances from the advisory guideline
range based on the
18 U.S.C. § 3553(a) sentencing factors. Irizarry v. United States,
553 U.S.
708, 714–16 (2008).
7
Case: 18-11327 Date Filed: 12/17/2018 Page: 8 of 13
Here, the district court did not err by failing to give notice before departing
under § 4A1.3. As Rule 32(h) indicates, a court need not independently provide
notice if the specific ground for departure was identified in the PSR or a prehearing
submission. Johnson received notice in each of the PSRs and in the government’s
prehearing submission. The PSRs noted the probation officer’s view that a
departure under § 4A1.3 may be warranted based on the “adequacy” of Johnson’s
criminal-history category. And the government’s presentencing “status update”
identified the specific grounds on which it contended that an upward departure
under § 4A1.3 was warranted. Together these two sources were enough to put
Johnson on notice and to defeat any claim of unfair surprise. Accordingly, the
district court did not improperly depart upward without notice under Rule 32(h).
B.
Johnson next contends that the § 4A1.3 upward departure was unwarranted.
We review a decision to depart upward for an abuse of discretion. United States v.
Magluta,
418 F.3d 1166, 1184 (11th Cir. 2005).
Under § 4A1.3, a district court may impose an upward departure where
“reliable information indicates that the defendant’s criminal history category
substantially under-represented the seriousness of the defendant’s criminal history
or the likelihood that the defendant will commit other crimes.” U.S.S.G.
§ 4A1.3(a)(1); see id. § 4A.1.3(a)(2) (identifying the types of information that may
8
Case: 18-11327 Date Filed: 12/17/2018 Page: 9 of 13
support an upward departure, including “[p]rior sentence(s) not used in computing
the criminal history category”). In determining the extent of a departure under
§ 4A1.3, the court should use, “as a reference, the criminal history category
applicable to defendants whose criminal history or likelihood to recidivate most
closely resembles that of the defendant’s.” Id. § 4A1.3(a)(4).
Here, the district court reasonably concluded that Johnson’s criminal-history
category of III (four to six criminal-history points) substantially under-represented
the seriousness of his criminal history and the likelihood that he will commit other
crimes. Johnson received four criminal-history points for convictions of attempted
second-degree murder, shooting into an occupied vehicle, and possession of
cocaine. But undisputed information in the PSR also reflects a number of unscored
adult convictions from 1998 to 2003, before his arrest for attempted murder, and a
continuation of criminal conduct upon his release to probation after serving a ten-
year prison sentence. See United States v. Aguilar-Ibarra,
740 F.3d 587, 592 (11th
Cir. 2014) (district courts may rely on undisputed statements in the PSR). Faced
with these undisputed facts, the district court did not abuse its discretion by
concluding that the next criminal-history category of IV (seven to nine criminal-
history points) more accurately represented Johnson’s criminal history and
likelihood of reoffending.
IV.
9
Case: 18-11327 Date Filed: 12/17/2018 Page: 10 of 13
Finally, Johnson argues that his sentence is substantively unreasonable. We
review the reasonableness of a district court’s choice of sentence for an abuse of
discretion. United States v. Irey,
612 F.3d 1160, 1188 (11th Cir. 2010) (en banc).
In general, the district court must impose a sentence that is sufficient, but not
greater than necessary, to comply with the purposes of sentencing.
18 U.S.C.
§ 3553(a). These purposes include the need for the sentence to reflect the
seriousness of the offense, to promote respect for the law, to provide just
punishment, to afford adequate deterrence, and to protect the public.
Id.
§ 3553(a)(2)(A)–(C). The court must also consider, among other factors, the
nature and circumstances of the offense, the history and characteristics of the
defendant, and any relevant policy statements issued by the Sentencing
Commission. Id. § 3553(a)(1), (5). The weight to be given each § 3553(a) factor
is within the court’s sound discretion. United States v. Kuhlman,
711 F.3d 1321,
1327 (11th Cir. 2013).
“The party challenging a sentence has the burden of showing that the
sentence is unreasonable in light of the entire record, the § 3553(a) factors, and the
substantial deference afforded sentencing courts.” United States v. Rosales-Bruno,
789 F.3d 1249, 1256 (11th Cir. 2015). Ordinarily, “we will reverse a sentence as
substantively unreasonable only if we are left with the definite and firm conviction
that the [d]istrict [c]ourt committed a clear error of judgment in weighing the
10
Case: 18-11327 Date Filed: 12/17/2018 Page: 11 of 13
factors by arriving at a sentence outside the range of reasonable sentences dictated
by the facts of the case.” United States v. Alberts,
859 F.3d 979, 985 (11th Cir.
2017) (quotation marks omitted).
Here, Johnson’s sentence is substantively reasonable. The district court
persuasively explained its reasons for concluding that the 105-month sentence was
necessary to reflect the seriousness of the offense, promote respect for the law,
provide just punishment, and promote the goals of deterrence and protection of the
public. As the court stated, Johnson had a “personal history of intentional gun
violence,” having been convicted of attempted murder; his offense conduct showed
that he was still involved with guns and drugs; and he had quickly reverted to
criminal activity upon being released to probation after serving a ten-year prison
sentence. Based on these factors, the court reasonably concluded that a sentence at
the top of the post-departure guideline range was sufficient but not greater than
necessary to comply with § 3553.
While Johnson contends that the district court failed to consider some
mitigating factors and should have weighed others more heavily, he has not shown
an abuse of discretion. 2 The court expressly considered Johnson’s “challenging”
and “disturbing” childhood, which it found likely contributed to his criminal
2
We lack jurisdiction to review Johnson’s contention that the district court should have
departed downward under U.S.S.G. §§ 5H1.6 and 5K2.0(a)(4), United States v. Webb,
139 F.3d
1390, 1394 (11th Cir. 1998), though we consider his arguments in this regard under § 3553(a).
11
Case: 18-11327 Date Filed: 12/17/2018 Page: 12 of 13
activity, and it credited his acceptance of responsibility both in the offense-level
calculation and in its explanation for the sentence. As for other factors not
mentioned, our precedent makes clear that although a court must consider the §
3553(a) factors prior to sentencing, “it need not discuss each of them.” United
States v. Talley,
431 F.3d 784, 786 (11th Cir. 2005). The record shows that the
court considered and weighed the relevant § 3553(a) factors and arrived at a
sentence within “the range of reasonable sentences dictated by the facts of the
case.” Alberts, 859 F.3d at 985.
Johnson’s remaining arguments are off the mark. He repeatedly asserts that
the district court failed to explain or justify its upward “variance,” but no variance
was imposed in this case. Johnson does not dispute that his pre-departure
guideline range was properly calculated to be 70–87 months. And after the
departure, the court imposed a sentence within the adjusted guideline range. In
addition, contrary to Johnson’s suggestion, the court properly considered the
particular facts of Johnson’s criminal history when weighing the § 3553(a) factors,
despite some overlap with the court’s reasons for imposing the upward departure
under § 4A1.3. See Rosales-Bruno, 789 F.3d at 1259–60 (“In assigning weight to
the § 3553(a) factors as part of the weighing process, a court may (and should)
consider individualized, particularized, specific facts and not merely the guidelines
label that can be put on the facts.”).
12
Case: 18-11327 Date Filed: 12/17/2018 Page: 13 of 13
For these reasons, we affirm Johnson’s 105-month prison sentence.
AFFIRMED.
13
