United States v. Tommy Johnson, Jr. ( 2013 )

Case: 12-50905 Document: 00512214293 Page: 1 Date Filed: 04/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 19, 2013
No. 12-50905
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
TOMMY RAY JOHNSON, JR., also known as Baby Tommy,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:11-CR-236-5
Before HIGGINBOTHAM, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Tommy Ray Johnson, Jr. appeals the 18-month sentence imposed upon
revocation of his probation. Johnson argues that his above-guidelines sentence
is procedurally unreasonable because the district court failed to adequately
discuss the 18 U.S.C. § 3553(a) factors and that his sentence is substantively
unreasonable in light of his minimal criminal history. Because Johnson did not
raise these issues in the district court, our review is limited to plain error. See
United States v. Whitelaw, 580 F.3d 256, 259 (5th Cir. 2009).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-50905 Document: 00512214293 Page: 2 Date Filed: 04/19/2013
No. 12-50905
To show plain error, the appellant must show a forfeited error that is clear
or obvious and that affects his substantial rights. Puckett v. United States, 556
U.S. 129, 135 (2009). If the appellant makes such a showing, this court has the
discretion to correct the error, but only if it “seriously affect[s] the fairness,
integrity, or public reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
Johnson has not established plain error in connection with the district
court’s reasons for his sentence. Although the district court did not expressly
address each § 3553(a) factor, it was aware of Johnson’s history and
characteristics and the nature and circumstances of the offense because it
presided over his original conviction and because the probation officer and
Johnson informed the court of Johnson’s personal circumstances underlying the
the probation violations. The court noted that within six months of being placed
on probation, Johnson had committed three violations of his probation, including
intentionally removing an electronic ankle monitor. The court further observed
that by absconding, Johnson had created a dangerous situation for himself, his
family, and law enforcement. The district court’s comments reveal that it
considered the nature and circumstances of the offense and Johnson’s history
and characteristics, determining that a guidelines sentence would not
adequately deter Johnson’s propensity for failing to follow the rules and would
not sufficiently protect the public. See § 3553(a)(1), (a)(2)(B)-(C). The district
court’s explanation of Johnson’s sentence was therefore adequate. See Whitelaw,
580 F.3d at 261; see also Rita v. United States, 551 U.S. 338, 356-57 (2007).
In addition, Johnson has not shown that he would have received a lesser
sentence but for the error. He has neither alleged nor established that a more
extensive explanation for the sentencing decision would have affected the
sentence imposed, i.e., Johnson has failed to identify anything in the record that
suggests that a more detailed reasoning regarding the district court’s selection
of sentence would have resulted in a different sentence. See United States
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No. 12-50905
Mondragon-Santiago, 564 F.3d 357, 364-65 (5th Cir. 2009). Johnson therefore
has not established plain error in connection with the district court’s statement
of reasons for his sentence. See Whitelaw, 580 F.3d at 264-65.
Likewise, Johnson has not established plain error in connection with the
substantive reasonableness of his sentence. Although his 18-month sentence
exceeds the guidelines range, it was within the 20-year statutory maximum for
his original offense of conviction, which the district court was authorized to
impose. See 18 U.S.C. § 472; United States v. Pena, 125 F.3d 285, 287 (5th Cir.
1997); see also United States v. Trinidad, 380 F. App’x 449, 450 (5th Cir. 2010)
(per curiam) (upholding 24-month sentence where guidelines range was 3 to 9
months); United States v. Morgan, 294 F. App’x 76, 77 (5th Cir. 2008) (per
curiam) (upholding 120-month sentence where guidelines range was 8 to 14
months). Johnson’s sentence does not constitute error, much less plain error.
See Puckett, 556 U.S. at 135; see also Pena, 125 F.3d at 288.
The judgment of the district court is AFFIRMED.
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