United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 29, 2007
Charles R. Fulbruge III
Clerk
No. 05-61073
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JAMES EDWARD JOHNSON, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:05-CR-20-1
Before GARWOOD, CLEMENT and PRADO, Circuit Judges.
PER CURIAM:*
James Edward Johnson, Jr., appeals his guilty-plea conviction
and 240-month sentence for aggravated sexual abuse of a minor on an
Indian reservation, in violation of 18 U.S.C. § 2241. He contends
that the district court erred in denying his motion to withdraw his
guilty plea, made during the sentencing hearing, because the
district court wrongly believed that the request was untimely.
*
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opinion should not be published and is not precedent except under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.
Johnson has not established that the denial of his motion
constituted an abuse of discretion. See United States v. Powell,
354 F.3d 362, 370 (5th Cir. 2003); United States v. Carr, 740 F.2d
339, 343-44 (5th Cir. 1984).1
Johnson also contends that the district court committed
reversible error by failing to provide him notice of its intent to
impose an upward sentence from the Guidelines. “[S]entencing
courts are not required to give pre-sentencing notice of their sua
sponte intention to impose a non-Guidelines sentence.” United
States v. Mejia-Huerta, 480 F.3d 713, 722 (5th Cir. 2007), petition
for cert. filed (U.S. Apr. 18, 2007) (No. 06-1381). Indeed, at
sentencing the court offered the defense more time to prepare if
desired, but the defense did not respond. Johnson further asserts
that the district court failed to calculate the applicable
guidelines range before it imposed the upward variance.2 He also
1
Among other things, Johnson has not, since his plea, which
was entered months post-Booker, ever asserted his innocence or that
he at any time lacked adequate assistance of counsel, or that his
plea was other than knowing and voluntary; indeed no reason
whatever was ever stated in support of the motion to withdraw.
2
The district court had before it at sentencing, as did the
parties, the PSR, which calculated the guideline range at 135-168
months. Neither party then or thereafter objected to the PSR’s
calculation of the guideline range, and it is plain that that
calculation was and is accepted by all concerned. The defendant
objected to two unrelated portions of the PSR, one of which
objections was overruled (a ruling not complained of on appeal) and
the other of which was not ruled on because it concerned a possible
ground for departure and the court expressly stated its election to
impose a non-guideline sentence. The court at sentencing also
stated “[t]he court has considered the advisory guideline
2
contends that the district court failed to provide sufficient or
appropriate reasons for the variance. His contentions are without
merit. See United States v. Smith, 440 F.3d 704, 707 (5th Cir.
2006).3
Finally, Johnson maintains that the 120-month sentence
received was unreasonable because the Guidelines took into account
all the factors considered by the district court in imposing the
variance. He is incorrect in this assertion. Johnson has not
established that the sentence he received is unreasonable. See id.
at 706-10. The judgment of the district court is
AFFIRMED.
computation and the sentencing factors under . . . Section
3553(a)”, and its written statement of reasons likewise reflects
its determination of the guideline range as being 135 to 168
months.
3
At the sentencing hearing the court stated at length its
particular reasons for imposing a non-guideline sentence and for
the particular sentence which it pronounced. Similarly, the
court’s written statement of reasons specifically stated that it
“imposed a sentence outside the advisory sentencing guideline
system” and identified the several relevant provisions of 18 U.S.C.
§ 3553(a) relied on in selecting the sentence imposed.
3