United States v. Mark Johnson ( 2021 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-3394
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United States of America
Plaintiff - Appellee
v.
Mark A. Johnson, doing business as Atlantic Power & Equipment, LLC
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Northern
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Submitted: October 18, 2021
Filed: December 10, 2021
[Unpublished]
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Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
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PER CURIAM.
Mark A. Johnson pled guilty to wire fraud, in violation of 18 U.S.C. § 1343.
The district court1 sentenced him to 41 months in prison and 3 years of supervised
release. He appeals. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
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The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
I.
Johnson maintains the district court procedurally erred by failing to
adequately explain its two-level upward departure from criminal history category IV
to VI (guidelines range of 24-30 months to guidelines range of 33-41 months). This
court reviews for abuse of discretion. United States v. Feemster, 572 F.3d 455, 461
(8th Cir. 2009) (en banc). To impose an upward departure, a district court is not
required to “mechanically discuss each criminal history category it rejects en route
to the category that it selects,” but it must “adequately explain why it concludes the
intermediary categories fail to meet the purposes of § 4A1.3.” United States v.
Azure, 536 F.3d 922, 931 (8th Cir. 2008) (cleaned up). Additionally, “any
procedural error in granting an upward departure is harmless” when—like here—
“the district court makes it clear that the sentence is also based on an upward variance
under the section 3553(a) factors.” United States v. Timberlake, 679 F.3d 1008,
1011 (8th Cir. 2012).
The district court departed upward pursuant to United States Sentencing
Guidelines § 4A1.3, which allows for an upward departure if “reliable information
indicates that the defendant’s criminal history category substantially under-
represents 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). The district court
gave written notice that it was considering “an upward departure at sentencing, based
largely on an inadequate criminal history category.” At sentencing, the court
discussed Johnson’s lengthy criminal history of dishonesty, spanning three decades
of mostly financial crimes. And it found it likely that Johnson would commit further
crimes of dishonesty.
The district court adequately explained why criminal history categories of IV
and V were inappropriate. See Azure, 536 F.3d at 931. See also United States v.
Herr, 202 F.3d 1014, 1016-17 (8th Cir. 2000) (“In deciding the likelihood that a
defendant may commit other crimes, a court may take into account any evidence of
obvious incorrigibility and conclude that leniency has not been effective.” (cleaned
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up)). Regardless, the district court stated that it would have imposed the same
sentence using a variance under the 18 U.S.C. § 3553(a) factors, so any potential
error was harmless. See Timberlake, 679 F.3d at 1011.
II.
Johnson believes the court procedurally erred by basing its sentence on a
“speculative hunch” about his long-time friend Anthony Bertino, a defendant in
another case, “that was unsupported by the record.” He asserts that at sentencing the
court “attempted to inject a nefarious nature between the two cases by concluding
there was some kind of ‘sweetheart deal’ the two had reached to defraud.” The
government contends Johnson failed to object to the alleged error at sentencing, and
this court should review for plain error. See United States v. Robinson, 662 F.3d
1028, 1032-33 (8th Cir. 2011). Johnson disagrees, asserting the standard of review
is abuse of discretion. This court need not decide the issue because Johnson’s claim
fails under either standard.
In a written memorandum before sentencing, the district court mentioned
Bertino had a separate criminal case pending. But the court did not state it would
consider Bertino’s actions in sentencing Johnson. At sentencing, Johnson admitted
that Bertino’s alleged criminal activity involving the same tribal entity in a different
case “smells,” but argued the court should not consider it. The district court noted
it was “certainly very suspicious,” and although there may not be evidence of a
connection, it doesn’t mean “a sweetheart deal here wasn’t worked out.” Despite
these comments, there is no indication the district court relied on unproven
suspicions in setting Johnson’s sentence. To the contrary, the record shows the
district court departed upward based on its finding that Johnson’s criminal history
category was insufficient based on his long history of committing crimes of
dishonesty.
The district court did not err in mentioning its suspicions about Bertino. See
United States v. Eagle Pipe, 911 F.3d 1245, 1248 (8th Cir. 2019) (holding “there
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was no error, much less plain error,” in the district court’s comments that the
defendant may have committed other acts of domestic violence because there was
no evidence that these remarks were a “principal basis” for the sentence).
III.
Johnson argues the 41-month sentence was substantively unreasonable
because it “failed to give proper weight to the mitigating factors, while
simultaneously allocating too much weight to mischaracterized and unsupported
considerations.” This court reviews for abuse of discretion. Feemster, 572 F.3d at
461. It will be an “unusual case” where this court reverses a sentence as
substantively unreasonable. Id. at 464.
The district court thoroughly considered the §3553(a) factors, particularly
Johnson’s lengthy history of committing crimes of dishonesty. It also considered
mitigating factors, including Johnson’s compliance on pretrial release and his health
conditions. The court did not err in imposing the 41-month sentence. See United
States v. Meadows, 866 F.3d 913, 920 (8th Cir. 2017) (“Sentences within the
guideline range are presumed to be substantively reasonable.”).
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The judgment is affirmed.
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