Case: 20-20497 Document: 00515901455 Page: 1 Date Filed: 06/15/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
No. 20-20497 June 15, 2021
Summary Calendar
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Nathan Antonio Johnson,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CR-420-1
Before Jolly, Elrod, and Graves, Circuit Judges.
Per Curiam:*
Nathan Antonio Johnson appeals the 100-month sentence imposed
following his guilty plea to one count of aiding and abetting interference with
commerce by robbery, pursuant to 18 U.S.C. §§ 1951(a) and 2. Johnson
raises two issues on appeal.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 20-20497
First, Johnson challenges the district court’s application of a six-level
firearm enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B). He contends
that the district court erroneously relied on speculation and the general
nature of the robbery offense to justify the enhancement where the facts set
forth in the presentence report (PSR) showed that he had no reason to
foresee his co-defendant’s use of a firearm in the robbery.
The district court must consider not only a defendant’s conduct but
also any “relevant conduct.” U.S.S.G. § 1B1.3. A defendant’s relevant
conduct includes “all acts and omissions committed, aided, abetted,
counseled, commanded, induced, procured, or willfully caused by the
defendant” and, “in the case of a jointly undertaken criminal activity . . . , all
acts and omissions of others that were,” inter alia, “reasonably foreseeable
in connection with that criminal activity[.]” § 1B1.3(a)(1). A district court’s
finding of reasonable foreseeability is reviewed for clear error. See United
States v. Jordan, 945 F.3d 245, 263-64 (5th Cir. 2019), cert. denied, 140 S. Ct.
2698 (2020), and cert. denied sub nom. Wise v. United States, 141 S. Ct. 606
(2020).
The district court considered and was unpersuaded by Johnson’s
argument that the facts contained in the PSR negated a reasonable
foreseeability finding. The district court observed that, according to reports
of the video surveillance footage of the robbery, Johnson did not appear
shocked when the firearm was displayed, nor did the record show that he left
or refused to commit the robbery when he saw the firearm. Instead, the
record established that Johnson and his co-defendant arrived at the hotel in
the same vehicle and, upon entering the hotel lobby together, his co-
defendant demanded money and pointed a semi-automatic pistol at the hotel
employee while Johnson took money from the cash register. Insofar as
Johnson argued that using a gun was not typical of other robberies he had
committed, the district court noted Johnson’s long and varied criminal
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No. 20-20497
history set forth in the PSR and concluded that it was hard to ascertain his
“typical” criminal conduct. Moreover, despite Johnson’s contentions, the
district court did not err when it considered the general nature of the robbery
offense to determine whether his co-defendant’s use of the firearm was
reasonably foreseeable to Johnson. See Jordan, 945 F.3d at 264; United States
v. Burton, 126 F.3d 666, 679 (5th Cir. 1997). Accordingly, the district court’s
finding of reasonable foreseeability was plausible in light of the record as a
whole, and the application of the § 2B3.1(b)(2)(B) enhancement was not
clearly erroneous. See Jordan, 945 F.3d at 263-64.
Next, as a condition of supervised release, the district court ordered
that Johnson “participate in an inpatient or outpatient substance abuse
treatment program and follow the rules and regulations of that program.”
Johnson challenges the district court’s use of the terms “inpatient or
outpatient” as an improper delegation of judicial authority to a probation
officer. Johnson concedes that plain error review applies because he did not
raise his objection at sentencing when he had an opportunity to do so. See
United States v. Diggles, 957 F.3d 551, 559-60 (5th Cir.) (en banc), cert. denied,
141 S. Ct. 825 (2020); cf. United States v. Martinez, 987 F.3d 432, 434-35 (5th
Cir. 2021).
Johnson challenges the same wording we addressed in Martinez, 987
F.3d at 434-36, and United States v. Medel-Guadalupe, 987 F.3d 424, 429-31
(5th Cir. 2021), cert. denied, 2021 WL 1520967 (U.S. Apr. 19, 2021) (No. 20-
7483). These companion decisions established two principles regarding the
delegation of authority to probation officers. See United States v. Huerta, 994
F.3d 711, 716 (5th Cir. 2021). “First, the district court will have the final say
on whether to impose a condition. Second, although a probation officer’s
authority extends to the modality, intensity, and duration of a treatment
condition, it ends when the condition involves a significant deprivation of
liberty.” Id. at 716-17 (internal quotation marks and citations omitted). In
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Medel-Guadalupe, we held that, because of the 120-month term of
incarceration and the district court’s final say over the treatment condition,
delegation of the decision to require inpatient treatment was permissible.
Medel-Guadalupe, 987 F.3d at 431. We correspondingly held in Martinez that,
because of the shorter, 10-month term of incarceration, delegation of the
inpatient treatment decision was not permissible. Martinez, 987 F.3d at 436.
Johnson suggests that this court should reconsider its precedents en
banc. At the same time, he concedes that plain-error review applies to his
challenge and that he cannot show that the district court plainly erred. See
Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Bishop, 603
F.3d 279, 281-82 (5th Cir. 2010). Johnson thus concedes that he is not
entitled to relief, and we agree.
The judgment of the district court is AFFIRMED.
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