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United States v. Johnson ( 2023 )


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  • Case: 22-30386        Document: 00516599408             Page: 1      Date Filed: 01/05/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 22-30386
Summary Calendar                                 FILED
____________                               January 5, 2023
Lyle W. Cayce
United States of America,                                                         Clerk
Plaintiff—Appellee,
versus
Darrien D. Johnson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:21-CR-233-1
______________________________
Before Barksdale, Elrod, and Haynes, Circuit Judges.
Per Curiam: *
Darrien D. Johnson pleaded guilty to possession of a firearm and
ammunition by a convicted felon, in violation of
    18 U.S.C. § 922
    (g). He was
sentenced to, inter alia, an above-Sentencing Guidelines, statutory
maximum, 120-months’ imprisonment.
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 22-30386      Document: 00516599408           Page: 2    Date Filed: 01/05/2023
No. 22-30386
Johnson contends, for the first time on appeal, that the district court
failed to clarify whether the sentence imposed was a Guidelines-authorized
upward-departure, pursuant to U.S.S.G. § 4A1.3, or an upward variance
under
    18 U.S.C. § 3553
    (a). Even assuming this issue was not waived, the
record establishes the sentence was the result of an upward variance under
§ 3553(a). Therefore, our court will not address Johnson’s assertion the
court procedurally erred in failing to articulate reasons for rejecting
intermediate sentences pursuant to § 4A1.3.
Additionally, Johnson maintains his sentence is substantively
unreasonable. He asserts: a within-Guidelines sentence was sufficient to
achieve the sentencing goals of § 3553(a); and the court failed to give
appropriate weight to the Guidelines before varying upwardly to the statutory
maximum.       According to Johnson, the Guidelines range adequately
accounted for his criminal history, and nothing in the record supports the
imposition of the statutory-maximum term.
Although post-Booker, the Guidelines are advisory only, the district
court must avoid significant procedural error, such as improperly calculating
the Guidelines sentencing range. Gall v. United States,
    552 U.S. 38
    , 46, 51
(2007). If no such procedural error exists, a properly preserved objection to
an ultimate sentence is reviewed for substantive reasonableness under an
abuse-of-discretion standard.
    Id. at 51
    ; United States v. Delgado-Martinez,
    564 F.3d 750
    , 751–53 (5th Cir. 2009). In that respect, for issues preserved in
district court, its application of the Guidelines is reviewed de novo; its factual
findings, only for clear error. E.g., United States v. Cisneros-Gutierrez,
    517 F.3d 751
    , 764 (5th Cir. 2008).
The record shows the court considered the advisory Guidelines
sentencing range of 57 to 71 months, but found it to be inadequate, concluding
a variance was warranted under the § 3553(a) sentencing factors to address
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Case: 22-30386      Document: 00516599408           Page: 3     Date Filed: 01/05/2023
No. 22-30386
the severity of Johnson’s criminal past.          The court emphasized the
extensiveness of his criminal history, the serious, repetitive, and often violent
nature of his offenses, and his inability to refrain from criminal conduct while
under court-ordered supervision. E.g., United States v. Brantley,
    537 F.3d 347
    , 350 (5th Cir. 2008) (explaining court may consider factors incorporated
by Guidelines, including criminal history, in concluding upward variance
appropriate); United States v. Williams,
    517 F.3d 801
    , 809 (5th Cir. 2008)
(“The Supreme Court's decision in Booker implicitly rejected the position
that no additional weight could be given to factors included in calculating the
applicable advisory Guidelines range, since to do otherwise would essentially
render the Guidelines mandatory.”); see also § 3553(a)(1), (a)(2).
The district court provided a reasoned basis for imposing the
maximum sentence, and our court will defer to that determination. E.g., Gall,
    552 U.S. at 51
    ; see also United States v. Diehl,
    775 F.3d 714
    , 724 (5th Cir. 2015)
(“Even a significant variance from the Guidelines does not constitute an
abuse of discretion if it is commensurate with the individualized, case-
specific reasons provided by the district court.” (citation omitted)).
Moreover, our court has routinely upheld similarly extensive variances. E.g.,
United States v. Smith,
    440 F.3d 704
    , 705–06 (5th Cir. 2006) (upholding as
substantively reasonable 60-months’ sentence where maximum sentence
under Guidelines was 27 months); United States v. Jones,
    444 F.3d 430
    , 433,
440–42 (5th Cir. 2006) (same for 120-months’ sentence where maximum
sentence under Guidelines was 57 months).
Inasmuch as Johnson seeks to have our court reweigh the § 3553(a)
sentencing factors, we will not do so. United States v. Heard,
    709 F.3d 413
    ,
435 (5th Cir. 2013) (declining to reweigh § 3553(a) sentencing factors on
substantive-reasonableness review).
AFFIRMED.
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