USA v. Klayvon Deon Johnson

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-12593
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KLAYVON DEON JOHNSON,
a.k.a.
Klayvon Johnson,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
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2 Opinion of the Court 21-12593
D.C. Docket No. 1:20-cr-20145-FAM-1
____________________
Before J ORDAN, LAGOA , and BRASHER , Circuit Judges.
PER CURIAM:
Klayvon Johnson appeals the 48-month sentence imposed
by the district court after he pled guilty to being a felon in posses-
sion of a firearm and ammunition. Mr. Johnson argues that the
district court’s 18-month upward variance above the top end of the
applicable Sentencing Guidelines range of 24 to 30 months was sub-
stantively unreasonable. After review of the parties’ briefs and the
record, we affirm.
I
A
On March 10, 2020, Mr. Johnson was indicted on one count
of possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). He faced a statutory maximum
sentence of 10 years.
Mr. Johnson pled guilty on May 12, 2021. As part of his
guilty plea, he agreed to the following facts.
On January 17, 2020, Miami Gardens Police Department de-
tectives stopped Mr. Johnson for operating a vehicle with illegally
tinted windows. During a lawful pat-down, a Miami Gardens de-
tective found a black Smith & Wesson firearm in Mr. Johnson’s
waistband. The firearm, which was previously stolen, contained
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21-12593 Opinion of the Court 3
12 live rounds of .9 millimeter caliber ammunition in the magazine
and one in the chamber.
A lawful search of Mr. Johnson’s vehicle yielded a plastic bag
with four grams of marijuana, a plastic bag containing nine grams
of Percocet pills, 21 unidentified prescription pills in a labeled pill
bottle, 47 prescription Ibuprofen pills in a labeled pill bottle, four
prescription Metronidazole pills in a labeled pill bottle, and $742 in
cash. None of the labeled prescription pills were issued to Mr.
Johnson.
Mr. Johnson previously had been convicted of a felony of-
fense. Specifically, Mr. Johnson was convicted for carrying a con-
cealed firearm in state court and for possession of a firearm by a
convicted felon in federal court. When Mr. Johnson possessed a
firearm and ammunition on January 17, 2020, he was on supervised
release in the federal case, and he knew that he was a convicted
felon.
B
A probation officer prepared a presentence investigation re-
port (“PSR”). The PSR recommended a guideline imprisonment
range of 37 to 46 months based on a total offense level of 17 and a
criminal-history category of IV. In calculating the offense level, the
PSR set the base offense level at 14. The PSR then added two levels
because the firearm was stolen, and four levels because Mr. John-
son was in possession of Percocet with intent to sell or deliver.
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Finally, the PSR applied a three-level reduction for acceptance of
responsibility.
The PSR also described Mr. Johnson’s criminal history,
which involved several gun-related offenses. According to the
PSR, Mr. Johnson’s criminal-history category of IV was based on
eight criminal history points resulting from two convictions.
Mr. Johnson’s first conviction, in state court, was for carry-
ing a concealed firearm and resisting an officer without violence
when he was 17 years old. As a result of this conviction, he was
sentenced to six months’ supervised release and had to pay a fine
and court costs. A couple of months after his sentence, however,
Mr. Johnson’s supervised release was revoked because he failed to
comply with the conditions of his supervised release by leaving Mi-
ami-Dade County without permission and getting arrested for
dealing in stolen property and carrying a concealed firearm. Mr.
Johnson’s state conviction earned him three criminal history
points.
Mr. Johnson’s second conviction, in federal court, was for
possession of a firearm and ammunition by a convicted felon when
he was 25 years old. Mr. Johnson was sentenced to 32 months’
imprisonment, three years of supervised release, and a special as-
sessment. This federal conviction also earned him three criminal
history points.
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21-12593 Opinion of the Court 5
The PSR further explained that Mr. Johnson earned two ad-
ditional points because he committed the instant offense while he
was on supervised release for his last conviction.
Finally, the PSR noted Mr. Johnson’s other possible criminal
conduct, which included arrests since he was 17 years old. Specifi-
cally, those prior arrests included (1) possession of cannabis on
April 21, 2008; (2) first degree murder and attempted felony murder
on December 28, 2008; (3) discharging of a firearm in public, felon
in possession of a firearm, and throwing a deadly missile on March
18, 2013; (4) dealing in stolen property and carrying a concealed
firearm on March 18, 2013; (5) solicitation of prostitution services
on March 26, 2015; and (6) felon in possession of a firearm, aggra-
vated assault with a firearm, and discharge of a firearm in public on
July 5, 2016.
Mr. Johnson objected to the PSR’s four-level enhancement
related to the possession of controlled substances at the time of the
offense. According to Mr. Johnson, he was merely the driver of the
vehicle, not its owner, and none of the pills—the Percocet pills
found in the center console, the Ibuprofen prescription bottle, or
the Metronidazole bottle—belonged to him. Therefore, Mr. John-
son asked the district court to reject the portion of the PSR calling
for a four-level enhancement and argued that his sentencing guide-
line range should be 24 to 30 months of imprisonment. The gov-
ernment did not file any objections to the PSR or respond to Mr.
Johnson’s objection.
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C
At the sentencing hearing, the government explained that it
was not seeking the four-level enhancement to Mr. Johnson’s base
offense level based on the possession of the controlled substances
at the time of the offense. Given this concession by the govern-
ment, the district court asked the probation officer to “delete the
four-level enhancement” in paragraph 13 of the PSR and noted that
Mr. Johnson’s new offense level was 13.
See D.E. 41 at 5. The
district court noted that the criminal history category remained the
same, but the sentencing guideline range decreased from 37 to 46
months to 24 to 30 months.
Mr. Johnson argued to the district court that he should re-
ceive the “bottom of the guidelines” because that was the stipula-
tion in his plea agreement, and because he would be given a con-
secutive sentence in his pending violation of supervised release.
See id. at 7. In addition, Mr. Johnson argued for the low end of the
advisory guidelines because he grew up in Miami-Gardens and that
was in the “best interest” of his wife, child, and mother.
See id. at
17. Mr. Johnson explained that while he was out of prison, he was
employed as a machine repairman, worked on getting his GED,
and was doing community service hours. Mr. Johnson also person-
ally addressed the district court and apologized to the court and to
his family. He said he just wanted “to move” and have a “new
start.”
Id. at 22. Mr. Johnson admitted that he “carried the fire-
arm,” acknowledged that it was “wrong,” and understood that
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there is “a punishment for it.”
Id. The government did not make
any argument at sentencing.
After hearing and considering the arguments presented, and
applying the factors set out in 18 U.S.C. § 3553(a), the district court
sentenced Mr. Johnson to 48 months of imprisonment, three years
of supervised release, and a $100 special assessment. The district
court explained that a “higher sentence” was necessary to “protect
the public.”
Id. The district court specifically observed that it was
“bothered” that Mr. Johnson had a firearms offense for which he
was placed on supervised release by a state court judge, and that he
also had another firearms offense in federal court for which he re-
ceived “32 months’ imprisonment.”
Id. The district court con-
cluded by stating that four years “may prevent [Mr. Johnson] from
[having guns] during that time.”
Id. at 23.
In arriving at Mr. Johnson’s sentence, the district court de-
clined to consider Mr. Johnson’s arrests for possession of mariju-
ana, first degree murder and attempted felony murder, and solici-
tation of prostitution.
See id. at 9, 18, 14. The district court ex-
plained that the “problem” it had in giving Mr. Johnson the bottom
of the advisory guidelines was “[a]ll these guns [sic] things,” refer-
ring to Mr. Johnson’s prior gun-related offenses.
See id. at 15. In-
deed, the district court said it was a “repeated crime.”
Id. at 19. At
the end of the hearing, the district court entered the judgment in
the case and completed a statement of reasons form marking the
applicable § 3553(a) factors and noting the reasons for the upward
variance.
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II
Mr. Johnson argues that the upward variance to 48 months
was “substantively unreasonable” because the district court “fo-
cused exclusively” on his criminal history, which had already been
taken into consideration by the Sentencing Guidelines.
See Appel-
lant’s Br. at 12. In response, the government contends that “there
is nothing wrong” with varying upward based on Mr. Johnson’s
criminal history even if the Sentencing Guidelines already address
that factor.
See Appellee’s Br. at 15.
III
A
We review the substantive reasonableness of a sentence for
abuse of discretion.
See Gall v. United States, 552 U.S. 38, 51,
(2007). In conducting that review, we examine the “totality of the
circumstances, including the extent of any variance from the
[g]uidelines range,” but we cannot presume that a sentence outside
of that range is unreasonable.
See id. We must give “due defer-
ence” to the district court’s “decision that the § 3553(a) factors, on
a whole, justify the extent of the [variance]. The fact that [we]
might have reasonably concluded that a different sentence was ap-
propriate is insufficient to justify reversal[.]”
Id. The party chal-
lenging the sentence bears the burden of establishing that it is un-
reasonable.
See United States v. Shabazz, 887 F.3d 1204, 1224 (11th
Cir. 2018).
When reviewing a sentence for substantive reasonableness,
we examine the totality of the circumstances, including “whether
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21-12593 Opinion of the Court 9
the statutory factors in § 3553(a) support the sentence in question.”
United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). We
have also explained that “[a] sentencing court is not required to in-
cant the specific language used in the guidelines or articulate its
consideration of each individual § 3553(a) factor, so long as the rec-
ord reflects the court’s consideration of many of those factors.”
United States v. Riley, 995 F.3d 1272, 1279 (11th Cir. 2021) (internal
quotation marks omitted) (quoting
United States v. Ghertler, 605
F.3d 1256, 1262 (11th Cir. 2010)).
Mr. Johnson’s sentence is not substantively unreasonable.
The record demonstrates that the district court considered the ev-
idence and arguments presented and properly weighed the §
3553(a) factors. The district court considered Mr. Johnson’s family
support, his employment history, his pursuit of a GED, and his vol-
untary community service hours. The district court gave Mr. John-
son an opportunity to personally address the court to express his
regret and his desire to relocate to a different city and start fresh.
The district court also acknowledged the presence of Mr. Johnson’s
family in the courtroom.
The district court specifically declined to consider Mr. John-
son’s arrests for possession of marijuana, first degree murder and
attempted felony murder, and solicitation of prostitution. The dis-
trict court, however, explained that it was “bothered” by Mr. John-
son’s history of unlawfully possessing firearms and the lack of de-
terrence from a prior 32-months’ imprisonment sentence for a fire-
arms-related offense, which according to the district court, was
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10 Opinion of the Court 21-12593
“actually higher than the guidelines [it] [had] found[.]” D.E. 41 at
22. Indeed, Mr. Johnson had committed the current firearms of-
fense while on supervised release for a similar firearms offense.
The district court, therefore, explained that “a higher sentence
[was] necessary to protect the public.”
Id.
Moreover, in its statement of reasons, the district court
noted various reasons for its 18-month variance from the top end
of the advisory guidelines. First, the 18-month variance was im-
posed “[t]o reflect the seriousness of the offense, to promote re-
spect for the law, and to provide punishment for the offense (18
U.S.C. § 3553(a)(2)(A)).”
See PSR 2d Attachment (Statement of
Reasons) at 3. Second, the variance was imposed “[t]o afford ade-
quate deterrence to criminal conduct (18 U.S.C. § 3553(a)(2)B)).”
Id. Third, the variance was imposed “[t]o protect the public from
further crimes of [Mr. Johnson] (18 U.S.C. § 3553(a)(2)(C)).”
Id.
Finally, the district court stated that the “basis for [the] variance”
was due to “recent repeated similar prison offense [and] being on
supervised release on the identical crime.”
Id.
We conclude that the 48-month sentence imposed by the
district court was reasonable in light of all the circumstances pre-
sented, considering that 48 months (4 years) was well below the 10-
year statutory maximum that Mr. Johnson faced, “which is a con-
sideration favoring its reasonableness.”
United States v. Rosales-
Bruno, 789 F.3d 1249, 1257 (11th Cir. 2015). As such, we hold that
the district court did not abuse its discretion in sentencing Mr.
Johnson.
See Riley, 995 F.3d at 1279 (affirming a sentence of 70
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months, which was 52 months above the top end of the advisory
guideline range of 12 to 18 months, as substantively reasonable in
a case where the defendant was convicted of being a felon in pos-
session of a firearm in violation of 18 U.S.C. § 922(g)(1)).
B
Mr. Johnson takes issue with the district court’s emphasis on
his criminal history and argues that the district court improperly
“focused only” on that history, “a factor already taken into consid-
eration by the sentencing guidelines.” Appellant’s Br. at 15. We
are unpersuaded by Mr. Johnson’s argument.
It is well established in this Circuit that “[t]he weight to be
accorded any given § 3553(a) factor is a matter committed to the
sound discretion of the district court, and we will not substitute our
judgment in weighing the relevant factors.”
United States v.
Amedeo, 487 F.3d 823, 832 (11th Cir. 2007). “And discretion in
weighing sentencing factors is particularly pronounced when it
comes to weighing criminal history.”
Riley, 995 F.3d at 1279. The
fact that the district court afforded more weight to some aggravat-
ing factors, including Mr. Johnson’s criminal history, does not
mean that it abused its discretion.
See Rosales-Bruno, 789 F.3d at
1254 (“[T]he sentencing court is permitted to attach ‘great weight’
to one factor over others.”) (quotation marks omitted).
In any event, and contrary to Mr. Johnson’s argument, the
district court did not focus only on one § 3553(a) factor—his crimi-
nal history. Mr. Johnson’s extensive criminal record, which con-
tained various gun-related offenses, was pertinent to the district
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12 Opinion of the Court 21-12593
court’s assessment of several § 3553(a) factors.
See Riley, 995 F.3d
at 1280 (“[W]hen a court chooses to give ‘substantial weight’ to a
defendant’s criminal record, that choice is ‘entirely consistent with
§ 3553(a)’ because five of that section’s factors are related to crimi-
nal history.”).
See also Rosales-Bruno, 789 F.3d at 1263 (placing
substantial weight on a defendant’s criminal record is entirely con-
sistent with § 3553(a) because five of the factors it requires a court
to consider are related to criminal history).
In sum, we reject Mr. Johnson’s argument that the district
court committed a clear error of judgment in focusing on his crim-
inal history.
IV
We affirm Mr. Johnson’s sentence.
AFFIRMED.
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