Case: 14-30345 Document: 00512816209 Page: 1 Date Filed: 10/27/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-30345 FILED
Summary Calendar October 27, 2014
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
JAMES GUS JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:11-CR-298
Before KING, JOLLY, and HAYNES, Circuit Judges.
PER CURIAM: *
James Gus Johnson appeals the 36-month sentence imposed following
the revocation of a prior term of supervised release. He contends that the above
guidelines sentence is procedurally unreasonable and plainly erroneous
because the district court improperly considered his lack of respect for the law
under 18 U.S.C. § 3553(a)(2)(A). Because Johnson did not object to the alleged
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 14-30345
procedural error in the district court, our review is limited to plain error. See
United States v. Whitelaw, 580 F.3d 256, 259-60 (5th Cir. 2009).
Even if the district court relied on an improper factor, see United States
v. Miller, 634 F.3d 841, 844 (5th Cir. 2011), Johnson cannot show that his
substantial rights were affected, see Puckett v. United States, 556 U.S. 129, 135
(2009). The district court considered the recommended imprisonment range of
8 to 14 months, the 36-month statutory maximum term of imprisonment, the
nature and circumstances of Johnson’s supervised release violations, Johnson’s
“difficult” nature, and the probation officer’s prior efforts to help Johnson
during the supervised release term. Because the district court relied upon
permissible § 3553(a) factors, see § 3553(a)(1), (a)(4)(B); 18 U.S.C. § 3583(e),
the record does not unambiguously indicate that, but for the district court’s
possible consideration of the one improper factor, there is a reasonable
probability that the district court would have imposed a lower sentence, see
United States v. Davis, 602 F.3d 643, 647 (5th Cir. 2010). Accordingly, Johnson
cannot demonstrate reversible plain error. See Puckett, 556 U.S. at 135.
Johnson also contends that the sentence is procedurally unreasonable
and plainly erroneous because, aside from the recommended guidelines range,
the district court failed to consider any of the permissible § 3553(a) factors.
Because he did not object to the alleged procedural error in the district court,
our review is limited to plain error. See Whitelaw, 580 F.3d at 259-60.
The district court did not expressly state that it considered the § 3553(a)
factors in selecting Johnson’s revocation sentence. However, the record reflects
that the district court at least implicitly considered the permissible § 3553(a)
factors. See Whitelaw, 580 F.3d at 262-65 (recognizing that the district court’s
implicit consideration of the § 3553(a) factors is sufficient to satisfy § 3553(c)’s
requirement that it provide reasons for an above guidelines sentence).
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No. 14-30345
Specifically, the district court’s comments demonstrate that it considered the
applicable policy statements, the nature and circumstances of Johnson’s
supervised release violations, and Johnson’s history and characteristics. See
§ 3553(a)(1), (a)(4)(B); § 3583(e). Moreover, nothing in the record suggests that
a more thorough explanation would have resulted in a lesser sentence or that
the district court would impose a lesser sentence on remand. See Whitelaw,
580 F.3d at 262-65. Accordingly, Johnson cannot demonstrate reversible plain
error. See Puckett, 556 U.S. at 135.
AFFIRMED.
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