United States v. Don Johnson ( 2013 )

Case: 12-60976 Document: 00512300301 Page: 1 Date Filed: 07/09/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 9, 2013
No. 12-60976
Summary Calendar Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
DON EARL JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:12-CR-39-1
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Don Earl Johnson appeals the 72-month sentence imposed following his
guilty plea to failing to register as a sex offender. He argues that the imposition
of an upward variance, and the extent of that variance, is substantively
unreasonable. We review the substantive reasonableness of the district court’s
above-guidelines sentence for an abuse of discretion. United States v. Brantley,
537 F.3d 347, 349 (5th Cir. 2008).
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60976 Document: 00512300301 Page: 2 Date Filed: 07/09/2013
No. 12-60976
A sentencing court may consider a defendant’s criminal history in
imposing a non-guidelines sentence, and it is permissible for the sentencing
court to evaluate the history and characteristics of the defendant and the nature
and circumstances of the offense to determine whether it would deviate from the
advisory range to afford adequate deterrence to criminal conduct. United States
v. Fraga, 704 F.3d 432, 440-41 (5th Cir. 2013). Johnson’s criminal history
category underrepresented both the seriousness of his criminal history and the
likelihood that he would reoffend where several of his assaults were not
prosecuted and 14 of his prior convictions received no criminal history points.
The district court thus did not abuse its discretion in imposing an upward
variance from the advisory guidelines range. See id. at 441.
Regarding the extent of the upward variance, Johnson’s criminal conduct
was “significantly beyond that which had already been taken into account in
calculating the applicable Guidelines range.” Cf. United States v. Rajwani, 476
F.3d 243, 251 (5th Cir.), modified by, 479 F.3d 904 (5th Cir. 2007). Given the
comparatively little amount of time he spent incarcerated, the extent of the
variance also was not an abuse of discretion.
AFFIRMED.
2