United States v. Johnson ( 2023 )

Case: 23-30172 Document: 00516956362 Page: 1 Date Filed: 11/03/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-30172
Summary Calendar FILED
____________ November 3, 2023
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Anthony E. Johnson,
Defendant—Appellant.
______________________________
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:18-CR-232-3
______________________________
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Per Curiam: *
Anthony Johnson appeals his 30-month sentence for conspiracy to
commit bank and wire fraud with forfeiture allegations and bank fraud with
forfeiture allegations (two counts). Finding no error, we affirm.
Johnson claims that the district court erred by failing to grant him a
mitigating-role adjustment for purposes of U.S.S.G. § 3B1.2. He contends
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-30172 Document: 00516956362 Page: 2 Date Filed: 11/03/2023
No. 23-30172
that, because of his poor eyesight, limited education, receipt of disability ben-
efits, nominal payments for the offense conduct, and lack of discretion and
planning as compared to his codefendants, he is entitled to a role reduction.
Whether an appellant is a minor or minimal participant is a factual
determination reviewed for clear error. United States v. Gomez-Valle,
828 F.3d 324, 327 (5th Cir. 2016). “A factual finding is not clearly erroneous
if it is plausible in light of the record read as a whole.” Id.The record shows that after stating the totality-of-the-circumstances
test, the district court employed a fact-specific, well-reasoned approach
before denying Johnson a mitigating-role adjustment. In particular, the court
found that Johnson was an average participant in the conspiracy because he
personally negotiated 33 counterfeit checks at different locations, amounting
to a $110,733 loss. Though the court acknowledged that Johnson had no dis-
cretionary authority, it concluded that his criminal conduct made him an
essential cog in the conspiracy. The court further found that Johnson’s con-
duct demonstrated that he understood the scope and structure of the conspir-
acy whereby counterfeit checks were being passed at various locations to the
benefit of all conspirators.
Johnson has failed to show how his conduct was peripheral to the
advancement of the illicit activity. See United States v. Castro, 843 F.3d 608,
613–14 (5th Cir. 2016). Considering the record as a whole, the refusal to grant
a mitigating-role adjustment was not clearly erroneous. See Gomez-Valle,
828 F.3d at 327.
AFFIRMED.
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