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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10494
Non-Argument Calendar
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D.C. Docket No. 4:10-cr-00159-BAE-GRS-13
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DERRICK JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Georgia
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(May 30, 2013)
Before CARNES, BARKETT and ANDERSON, Circuit Judges.
PER CURIAM:
Derrick Johnson appeals his total 66-month upward variance sentence,
imposed after pleading guilty to one count of conspiracy to possess with intent to
distribute, and to distribute, more than 400 grams of cocaine, in violation of
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21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. § 2, and one count of distribution of a
mixture or substance containing a detectable amount of cocaine hydrochloride, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. On appeal, Johnson first
argues that the district court erred by departing upward from the guideline range.
Second, Johnson argues that the district court exhibited bias against him by
considering his family situation—his children born out of wedlock and his marital
status—at sentencing, and, therefore, should have recused itself under 28 U.S.C.
§ 455(a). After thorough review, we vacate Johnson’s sentence and remand for
resentencing.
I.
On appeal, Johnson first challenges the procedural reasonableness of the
district court’s upward variance. In reviewing the procedural reasonableness of a
sentence, this Court ensures that the district court has committed no significant
procedural error, such as failing to consider the 18 U.S.C. § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or inadequately explaining
the chosen sentence. Gall v. United States, 552 U.S. 38, 41, 128 S. Ct. 586, 591
(2007). A factual finding at sentencing is clearly erroneous when “although there
is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.” United States v.
Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011), cert. denied, 132 S. Ct. 1066
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(2012). The district court is not required at sentencing to state on the record that it
has explicitly considered each of the § 3553(a) factors or to discuss each of the
factors individually. United States v. Scott, 426 F.3d 1324, 1329 (11th Cir. 2005).
However, a district court does commit procedural error when it inadequately
explains how the facts of the case operate under enunciated § 3553(a) factors to
justify a variance from the guideline range. United States v. Livesay, 525 F.3d
1081, 1093-94 (11th Cir. 2008).
Here, we find that Johnson’s sentence was based, at least in part, on clearly
erroneous facts. The district court, at the very beginning of sentencing, stated that
it was considering an upward variance due to the fact that Johnson had been a
supplier and distributor of illegal drugs, that he had an extensive criminal history,
that Johnson had a number of revocations of probation by state authorities, and
that, had Johnson pled guilty or been convicted of all counts in the superseding
indictment, his required term of imprisonment would have been at least ten years.
The district court then permitted Johnson’s counsel, the government, and Johnson
himself to address the court.
After hearing from all parties, the district court upwardly varied from the
guideline range of 46-57 months and sentenced Johnson to a 66-month sentence.
After handing down the sentence, the district court continued:
The Court has given the reasons, but the conduct of the
defendant over a long course of time resulting in a continual, almost
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continual violation of law, many of the things that he is charged with
and has committed are not considered in the calculation of the
guidelines.
Beginning at age 18, and continuing as I have already noted, is
a person who has been out of control, smoking marijuana on a daily
basis. And it has led to, no doubt, a distraught and broken family, the
lives of so many people, both victims and the victims by virtue of their
dependency on him has been occurring a long period of time. Doc.
673 at 17 (emphasis added).
We hold that the district court relied on clearly erroneous facts when it
concluded that Johnson’s smoking of marijuana “led to, no doubt, a distraught and
broken family,” and that there were “victims by virtue of their dependency on
him.”
The district court questioned Johnson regarding his three children by three
different women whom he had never married. Johnson stated to both the probation
officer and the court that he had provided support for his children prior to his arrest
and that, at the time of the sentencing hearing, he was engaged to be married.
Additionally, Johnson’s attorney represented to the court that Johnson’s children
had visited him at prison at least seven times and that Johnson was “very
responsible for” his children and “very connected to them.” Johnson’s attorney
reiterated numerous times to the court that Johnson “has been taking care of his
children” and that she felt a sentence within the guideline range was appropriate.
The PSI does not include any facts that could support the district court’s
conclusion that Johnson’s actions had led to a “distraught and broken” family.
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Additionally, the government did not counter any of the statements Johnson or his
attorney made, and the government specifically stated that it felt that a sentence
within the guideline range was appropriate.
After a thorough review of the record, we are “left with the definite and firm
conviction that a mistake has been committed.” See Barrington, 648 F.3d at 1195.
Although we cannot be sure how much the district court relied on these factual
findings when sentencing Johnson, we must conclude that the district court failed
to adequately explain its reasons for Johnson’s sentence in a way that “allows for
meaningful appellate review and promotes the perception of fair sentencing.” See
Livesay, 525 F.3d at 1093. There is simply no evidence in the record to support the
district court’s factual findings regarding Johnson’s family or any victims resulting
from their dependency on him.
To the extent that the district court relied on these clearly erroneous facts in
varying upward, we hold that the district court erred. Because we cannot ascertain
what effect any such reliance had on the district court’s decision to vary upwardly,
and because the district court failed to explain that, Johnson’s sentence is
procedurally unreasonable. Accordingly, we vacate Johnson’s sentence and
remand for resentencing.1
1
We disagree with Johnson, however, that it was inappropriate for the district court to state
that Johnson had engaged in “consistent criminal conduct” resulting in “continual violation of
the law.” This factual finding was not clearly erroneous in light of Johnson’s admission that he
used marijuana on a daily basis between his arrests in September 1999 and June 2008.
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II.
Johnson also argues that the district court judge should have recused himself
from the case. Ordinarily, we review a judge’s decision not to recuse himself for
bias for an abuse of discretion. United States v. Berger, 375 F.3d 1223, 1227 (11th
Cir. 2004). Where a party fails to move for recusal in the proceedings below,
however, we review for plain error. Id. To satisfy the plain-error standard, we
must find that (1) the district court committed “error” in that “a legal rule was
violated,” (2) the error was plain or “obvious,” and (3) the error “affected
substantial rights” in that the error was prejudicial and not harmless. United States
v. Olano, 507 U.S. 725, 731-35, 113 S. Ct. 1770, 1776-78 (1993). If these criteria
are met, we may, in our discretion, correct the plain error if the error “seriously
affect[s] the fairness, integrity, or public reputation of judicial proceedings.” Id.
at 736, 113 S. Ct. at 1779 (citation omitted).
Under § 455(a) of Title 28 of the U.S. Code, a federal judge should recuse
himself where “his impartiality might reasonably be questioned.” 28 U.S.C.
§ 455(a). In reviewing whether a district court judge should have recused himself
under § 455(a), we ask whether “an objective, disinterested, lay observer fully
informed of the facts underlying the grounds on which recusal was sought would
entertain a significant doubt about the judge’s impartiality.” United States v. Patti,
337 F.3d 1317, 1321 (11th Cir. 2003). Further, the alleged bias “must stem from
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extrajudicial sources, unless the judge’s acts demonstrate such pervasive bias and
prejudice that it unfairly prejudices one of the parties.” United States v. Bailey,
175 F.3d 966, 968 (11th Cir. 1999) (quotation omitted). Where properly before the
district court, historical facts unrelated to a defendant’s offense are proper
considerations at sentencing when they relate to a § 3553(a) factor. See United
States v. Gray, 453 F.3d 1323, 1325 (11th Cir. 2006) (holding that the defendant’s
“age, his prior minimal criminal record, and his medical condition” were “all valid
considerations because they related to the ‘history and characteristics of the
defendant’”).
Here, the district court was not required to recuse itself. The court’s
consideration of the issue was not demonstrative of pervasive bias, and, therefore,
Johnson cannot show that the district court’s failure to recuse itself was “error,” let
alone plain error.
III.
Upon review of the entire record on appeal, and after consideration of the
parties’ appellate briefs, the district court was not required to recuse itself.
However, for the reasons discussed in Part I, we vacate Johnson’s sentence and
remand for resentencing.
VACATED AND REMANDED.
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