United States v. Johnson

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 1, 2006
Charles R. Fulbruge III
Clerk
No. 04-30071
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VERONA L. JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:02-CR-50050
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ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
Before HIGGINBOTHAM and DAVIS, Circuit Judges.*
PER CURIAM:**
Citing two enhancements, the district court sentenced Verona
Johnson to 41 months, the top of the 33 to 41-month Guidelines
range. Johnson appealed one of the enhancements, and we remanded
for further findings. The district court made those findings and
adhered to its previous determination of the Guidelines range,
but sentenced Johnson to 33 months, citing her good behavior in
*
This appeal is being decided by a quorum due to the
retirement of Judge Pickering. 28 U.S.C. § 46(d).
**
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this opinion should not be published and is not precedent except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.
No. 04-30071
-2-
prison. Johnson appealed, for the first time raising a Sixth
Amendment/Blakely claim, we affirmed citing circuit precedent,
and the Supreme Court vacated and remanded for further
consideration in light of United States v. Booker, 125 S. Ct. 738
(2005).
As Johnson concedes, we review for plain error because she
did not object to her sentence in district court on Sixth
Amendment grounds. United States v. Mares, 402 F.3d 511, 520
(5th Cir. 2005). Hence she must show an obvious error that
“affect[s] [her] substantial rights” and “seriously affect[s] the
fairness, integrity, or public reputation of judicial
proceedings.” United States v. Olano, 507 U.S. 725 (1993). A
Booker error affects a defendant’s substantial rights if the
sentencing judge, sentencing under an advisory scheme, would have
reached a significantly different result. Mares, 402 F.3d at
521.
Although, as the Government concedes, there was clear Booker
error here, Johnson cannot show that the district judge would
have given a lower sentence under an advisory scheme. In support
of her contention otherwise, she points only to the sentencing
judge’s statement at sentencing on remand that
there are limits set out by the guidelines as to what I
can sentence you since I have found the enhancement for
obstruction of justice applicable. When you were here
before, I sentenced you to 41 months. In view of your
history [in prison].... Accordingly, I’m going to
reduce the sentence to the bottom of the guidelines and
order you committed to the custody of the Bureau of
Prisons for a term of 33 months.
No. 04-30071
-3-
This statement reveals no express desire to sentence Johnson
below the Guidelines range. Although it could be read to reflect
an implicit desire to do so, it is more easily read as a
statement of fact - the Guidelines provide “limits,” still true
post-Booker - explaining the choice of 33 months out of all
possibilities. Moreover, there is no indication that a downward
departure would have been justified under an advisory scheme
after consideration of 18 U.S.C. § 3553(a), given the record and
the district court’s reliance only on post-offense conduct to
explain its 33-month sentence, see United States v. Desselle, 450
F.3d 179, 182 (5th Cir. 2006); Mares, 402 F.3d at 519, and we
read the district court’s statement in light of that.
Consequently, the judgment of conviction and sentence are
REINSTATED.