United States Court of Appeals
For the Eighth Circuit
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No. 20-1191
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Terrae J. Johnson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: November 16, 2020
Filed: December 11, 2020
[Unpublished]
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Before COLLOTON, ARNOLD, and KELLY, Circuit Judges.
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PER CURIAM.
After Kansas City police received a report of gunshots inside an apartment,
they responded and found Terrae Johnson, apparently under the influence of PCP,
lying naked on the apartment's kitchen floor. Johnson's cousin who lived at the
apartment told police that Johnson had been smoking PCP while visiting her. She
explained that, while she was cooking, she heard gunshots and so she dived to the
ground, crawled out of the apartment, and called for help. Officers found a gun with
an extended-capacity magazine on the kitchen floor as well as five shell casings in the
kitchen area and several bullet holes in the walls.
Johnson pleaded guilty to being a felon in possession of a firearm. See 18
U.S.C. §§ 922(g)(1), 924(a)(2). The parties agreed that the Sentencing Guidelines
recommended a sentence of 57–71 months' imprisonment, and they jointly
recommended that the district court1 sentence Johnson to a prison term at the bottom
of that range. The district court instead varied upward and imposed a 96-month
sentence. Johnson maintains on appeal that this sentence is substantively
unreasonable, but we disagree and affirm.
We review sentences both inside and outside the Guidelines range for an abuse
of discretion. United States v. Stone, 873 F.3d 648, 649 (8th Cir. 2017) (per curiam).
So even when a court varies outside the Guidelines range, we "give due deference to
the district court's decision that" the appropriate sentencing considerations found in
18 U.S.C. § 3553(a) justify the extent of the variance. See United States v. Whitlow,
815 F.3d 430, 436 (8th Cir. 2016). Our review is narrow and deferential, and only in
unusual cases will we reverse a district court sentence, even one above the Guidelines
range, for being substantively unreasonable. Id.
Johnson asserts that the district court "committed a clear error in judgment in
its weighing" of the § 3553(a) sentencing considerations. He first maintains that the
district court "overemphasized" the relevance of certain "municipal offenses" he had
been charged with or convicted of (namely, leaving the scene of an accident, resisting
arrest, and driving under the influence). The transcript of Johnson's sentencing
1
The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri.
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hearing, however, doesn't demonstrate that the district court focused on these offenses
in particular when setting Johnson's sentence. It is true that the court mentioned them
to support its conclusion that Johnson had not shown respect for the law. But as the
court explained, Johnson had already been sentenced to ninety months in federal
prison for two separate incidents where he was found with guns and drugs, the second
of which occurred while he was on supervised release for the first time he was caught
with drugs and a gun. This being the third such instance where Johnson mixed guns
and drugs, we cannot say that the district court's observations about Johnson's lack
of respect for the law were unfounded or measurably depended on Johnson's
"municipal offenses."
Johnson also points out that his Guidelines range already accounted for his
offense conduct, and so, his argument runs, the district court shouldn't have relied on
that conduct in varying upward. But it is familiar law that "factors that have already
been taken into account in calculating the advisory Guidelines range can nevertheless
form the basis of a variance." See United States v. Thorne, 896 F.3d 861, 865 (8th Cir.
2018) (per curiam). We note, too, that the Guidelines calculation did not take into
account that, when Johnson committed his offense, he was committing two other
felonies (possessing drugs and firing a weapon in an occupied dwelling), and only
one felony was required to trigger an enhancement. See USSG § 2K2.1(b)(6)(B).
Under the Guidelines, therefore, Johnson got a kind of pass for the second felony, and
so it's not completely accurate to say that the Guidelines calculation already
accounted for all the offense conduct.
Johnson further maintains that there's no evidence that an upward variance, as
compared to a sentence within the Guidelines range, would better deter him from
committing other crimes. But we think it within the district court's ample discretion
to decide, since prior sentences totaling ninety months had not dissuaded Johnson
from abandoning his criminal pursuits, that a (slightly) longer sentence this time
around was warranted.
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Johnson also says that the district court "failed to evaluate Mr. Johnson's
culpability in terms of his drug addiction and its clear influence on his offense
conduct and prior criminal conduct." Even assuming that drug addiction is a
mitigating circumstance, a matter that's debatable, see United States v. Henry, 770 F.
App'x 309, 311 (8th Cir. 2019) (unpublished per curiam), the district court did in fact
consider the possibility that addiction contributed to Johnson's disrespect for the law
in fixing the sentence. It's not even clear on this record, moreover, that Johnson has
a drug addiction; the unobjected-to paragraphs in his presentence report on the topic
of substance abuse, which recount statements Johnson gave on the subject, do not
give the impression that Johnson was addicted to drugs, as opposed to being an
occasional user. And nothing in the record suggests that addiction led Johnson to
come into possession of a gun anyway.
Finally, Johnson finds fault in the district court's "extraneous remark" during
the sentencing hearing "regarding Mr. Johnson's son." The court said that the "son
doesn't need to be around learning how you do drugs and deal drugs and get guns and
do PCP and shoot up things." Johnson says that the record does not show that he
exposed his son to drugs or guns, and that it would be speculative for the district
court to believe that Johnson would do so in the future if he were not imprisoned.
Even if Johnson has properly construed the court's statement, which is
doubtful, it is hardly unreasonable for the court to point out that one effect of its
sentence would be to deter Johnson from committing additional crimes during some
of his son's most formative years. The possibility that an offender will recidivate is
to some extent always speculative, but that does not mean a district court may not
fashion a sentence with that possibility in mind.
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In sum, we see no abuse of discretion here, whether we consider Johnson's
contentions individually or cumulatively.
Affirmed.
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