IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-10712
Summary Calendar
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
DAVID ANTOINE JOHNSON
Defendant - Appellant
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:01-CR-185-A-1
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March 12, 2003
Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit
Judges.
PER CURIAM:*
David Antoine Johnson appeals his sentence following his
guilty plea to two counts of brandishing a firearm during a bank
robbery. Johnson raises two issues on appeal: (1) the district
court erred in departing upward from the guidelines range of
sentences for his crimes; and (2) the stacking of his sentences
to run consecutively constitutes a violation of the Eighth
Amendment’s prohibition on cruel and unusual punishment.
*
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that this opinion should not be published and is not precedent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. 02-10712
-2-
Johnson first argues that the district court erred in
failing to comply with 18 U.S.C. § 3553(c) in explaining its
reasons for upwardly departing, abused its discretion in upwardly
departing, and improperly considered dismissed counts in
assessing the sentence. Because Johnson failed to object to the
upward departure below, review is limited to plain error. See
United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998)
(noting that this court can reverse under a plain error standard
of review only upon a finding that the district court committed a
plain error and that the error affected the defendant’s
substantial rights).
Johnson stipulated that he committed the counts that were
dismissed, and the district court found by a preponderance of the
evidence that Johnson did commit those offenses. The district
court concluded that the guidelines did not adequately take into
account either the total offense conduct or the carjacking
Johnson committed after one of the robberies. The district court
also found that the guidelines did not adequately take into
account the impact of the crimes on the victims or the ongoing
problems the victims suffered.
In sentencing Johnson, the district court explained the
mandatory sentences Johnson faced for the offenses to which he
pleaded guilty. The district court also explained what the
additional consecutive sentence would have been had he been
convicted of all of the counts charged. As Johnson concedes, the
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guidelines allow consideration of dismissed counts as relevant
conduct. See U.S.S.G. § 5K2.21. Johnson has not shown that the
decision to depart upwardly was plain error or that the district
court failed to explain its reasons for departing upwardly or
that the district court could not consider the dismissed counts
in sentencing him.
Johnson also argues that the district court’s stacking of
his sentences was an unconstitutionally excessive punishment
because it made no measurable contribution to acceptable goals of
punishment and was grossly out of proportion to the crime’s
severity. This court looks to Rummel v. Estelle, 445 U.S. 263
(1980), to determine whether a sentence is grossly
disproportionate. United States v. Gonzales, 121 F.3d 928, 943
(5th Cir. 1997) (noting that Rummel is a “litmus test” for
determining whether a sentence is grossly disproportionate). In
Rummel, the Court rejected an Eighth Amendment challenge to a
sentence of life imprisonment following a conviction under a
‘recidivist statute’ for obtaining $120 by false pretenses.
Rummel, 445 U.S. at 285.
Using Rummel as the benchmark, Johnson’s sentence is not
grossly disproportionate to his offense. Robbery of a bank while
brandishing a gun is a crime of violence. United States v.
Thames, 214 F.3d 608, 614-15 (5th Cir. 2000). As such, the crime
warrants severe penalties. See Gonzales, 121 F.3d at 944.
Johnson had a record indicating recidivist tendencies. Johnson
No. 02-10712
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faced a potential sentence of 711 months had the plea agreement
been rejected and had he been sentenced on all counts in which he
was named. Moreover, the district court found that even a
sentence for all of the conduct charged in the superceding
indictment would not account adequately for the harm to the
victims. Therefore, under the standard set by Rummel, Johnson’s
sentence does not offend the Eighth Amendment.
The district court’s judgment is AFFIRMED.