United States v. Johnny Johnson

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10875
Non-Argument Calendar
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D.C. Docket No. 2:96-cr-14040-KLR-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOHNNY JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 11, 2017)
Before JULIE CARNES, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
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Johnny L. Johnson appeals the revocation of his supervised release and the
district court’s imposition of a 51-month sentence. On appeal, Johnson argues that
the district court erred by failing to compel the government to reveal and produce a
confidential informant for examination. Johnson further argues that his sentence
was procedurally unreasonable because the district court miscalculated his
guideline range by determining the class of his original offense based on the law at
the time of his original sentencing rather than at the time of the revocation of his
supervised release. Johnson also argues that his sentence was substantively
unreasonable because the district court failed to account for the changes in the law
over time since his original sentencing.
I.
We review a district court’s ruling that the government need not disclose the
identity of a confidential informant for abuse of discretion. United States v.
Flores, 572 F.3d 1254, 1265 (11th Cir. 2009).
The government’s privilege to withhold the identity of a confidential
informant is limited. Id. Where the disclosure of an informer’s identity, or of the
contents of his communication, is relevant and helpful to the defense of an
accused, or is essential to a fair determination of a cause, the privilege must give
way. Id. We have held that this inquiry principally involves consideration of three
factors: (1) the extent of the informant’s participation in the criminal activity;
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(2) the directness of the relationship between the defendant’s asserted defense and
the probable testimony of the informant; and (3) the government’s interest in
nondisclosure. Id. The government’s interest may be proven by showing that
disclosure might endanger the informant or other investigations. Id. The burden is
on the appellant to show that the informant’s testimony would significantly aid in
establishing an asserted defense. United States v. Gutierrez, 931 F.2d 1482, 1491
(11th Cir. 1991). Mere conjecture about the possible relevance of the testimony is
insufficient to compel disclosure. Id.
In Roviaro, the Supreme Court explained that “once the identity of an
informer has been disclosed to those who would have cause to resent the
communication, the privilege is no longer applicable.” Roviaro v. United States,
353 U.S. 53, 60 (1957). We clarified that the statement must not be read out of
context, and that the scope of the privilege was governed by its underlying purpose
of recognizing the obligation of citizens to communicate their knowledge of the
commission of crimes to law enforcement, and preserving their anonymity
encourages them to perform that obligation. See United States v. Tenorio-Angel,
756 F.2d 1505, 1510 (11th Cir. 1985). We concluded that the privilege was still
applicable where the confidential informant told the defendant his name. Id. We
further noted that the “Roviaro Court did not intend for the existence of the
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government’s privilege to depend upon the fortuity of whether or not the
confidential informant introduced himself or herself to the defendant.” Id.
The district court did not abuse its discretion by declining to require the
government produce the confidential informant. Johnson failed to demonstrate that
the confidential informant’s testimony would significantly aid in establishing an
asserted defense. Johnson’s assertions that the initial search may have been
insufficient and the confidential informant may have produced the cocaine are
speculative, and speculation is insufficient to compel disclosure. Gutierrez, 931
F.2d at 1491. Lastly, the brief visibility of the informant in a produced video did
not waive the government’s privilege.
II.
We review for reasonableness the sentence imposed by the district court
upon the revocation of supervised release. United States v. Vandergrift, 754 F.3d
1303, 1307 (11th Cir. 2014). When reviewing reasonableness, we apply a
deferential abuse of discretion standard. Gall v. United States, 552 U.S. 38, 41
(2007).
The guideline range for a sentence imposed after a violation of supervised
release is based on the grade of the violation, the defendant’s criminal history at
the time of his original sentencing, and the class of his original offense. U.S.S.G.
§ 7B1.4(a). Violation of a federal, state, or local offense punishable by a term of
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imprisonment exceeding one year that is a controlled substance offense constitutes
a grade A violation. Id. § 7B1.1(a)(1). A felony for which the authorized term of
imprisonment is life is a class A felony. 18 U.S.C. § 3559(a)(1). A felony for
which the authorized term of imprisonment is 25 years or more is a class B felony.
Id. § 3559(a)(2). A grade A violation of supervised release imposed pursuant to a
class A felony with a criminal history category of VI results in a guideline range of
51 to 63 months’ imprisonment. U.S.S.G. § 7B1.4(a). A grade A violation of
supervised release imposed pursuant to a class B felony with a criminal history
category of VI results in a guideline range of 33 to 41 months’ imprisonment. Id.
The Fair Sentencing Act of 2010 raised the amount of cocaine base required
to qualify for a maximum sentence of life imprisonment from 50 grams to 280
grams. See Fair Sentencing Act of 2010, PL 111-220, August 3, 2010. Prior to the
Fair Sentencing Act, possession with intent to distribute 50 grams of cocaine base
was punishable by a term of imprisonment not less than 10 years and not more than
life. 21 U.S.C. § 841(b)(1)(A)(iii) (1997). After the passage of the Fair
Sentencing Act, possession with intent to distribute 280 grams or more of cocaine
base is punishable by a term of imprisonment not less than 10 years and not more
than life. 21 U.S.C. § 841(b)(1)(A)(iii). Possession with intent to distribute 28
grams or more of cocaine base is punishable by a term of imprisonment not less
than 5 years and no more than 40 years. 21 U.S.C. § 841(b)(1)(B)(iii).
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Post-supervised release revocation penalties relate back to the original
offense. See Johnson v. United States, 529 U.S. 694, 701 (2000). We have
concluded that the Fair Sentencing Act does not apply to defendants who had been
sentenced prior to the enactment of the Act. United States v. Berry, 701 F.3d 374,
377 (11th Cir. 2012).
Pursuant to § 3583(e), upon finding that the defendant violated a condition
of supervised release, a district court may revoke the term of supervised release
and impose a term of imprisonment after considering the specific factors set forth
in 18 U.S.C. § 3553(a). 18 U.S.C. § 3583(e)(3). A district court “must adequately
explain the chosen sentence to allow for meaningful appellate review and to
promote the perception of fair sentencing.” Gall, 552 U.S. at 597. A lengthy
explanation is not necessarily required when a judge simply applies the Guidelines.
Rita v. United States, 551 U.S. 338, 356 (2007). The district court does not need to
explicitly mention that it considered § 3553(a) factors, as long as the record shows
that it did consider the factors. See United States v. Dorman, 488 F.3d 936, 944
(11th Cir. 2007). Thus, so long as the district court “listen[s] to the evidence and
arguments and [is] aware of the various factors [a] defendant put forward for a
lesser sentence,” it does not commit procedural error by failing to give a detailed
explanation of the sentence. United States v. Irey, 612 F.3d 1160, 1194-95 (11th
Cir. 2010) (en banc).
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The party who challenges the sentence bears the burden to show that the
sentence is unreasonable in light of the record and the § 3553(a) factors. United
States v. Tome, 611 F.3d 1371, 1378 (11th Cir. 2010). The weight given to any
specific § 3553(a) factor is committed to the sound discretion of the district court.
United States v. Clay, 483 F.3d 739, 743 (11th Cir. 2007). A court can abuse its
discretion when it: (1) fails to consider relevant factors that were due significant
weight; (2) gives an improper or irrelevant factor significant weight; or
(3) commits a clear error of judgment by balancing the proper factors
unreasonably. Irey, 612 F.3d at 1189. Absent clear error, we will not reweigh the
§ 3553(a) factors. United States v. Langston, 590 F.3d 1226, 1237 (11th Cir.
2009).
Here, the district court committed no procedural error and properly
calculated Johnson’s guideline range. Penalties for supervised-release revocation
relate back to the original offense, and the Fair Sentencing Act does not apply
retroactively. Additionally, Johnson’s sentence was not substantively
unreasonable. Johnson was originally convicted for possessing cocaine base with
intent to distribute, and his revocation stemmed from again distributing controlled
substances. Johnson’s arguments are aimed at having us reweigh the § 3553(a)
factors, which is something we will not do absent clear error. Langston, 590 F.3d
at 1237.
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Upon review of the entire record on appeal, and after consideration of the
parties’ briefs, we affirm.
AFFIRMED.
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