United States of America v. Tyre Antoine Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4155
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TYRE ANTOINE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Henry E. Hudson, District
Judge. (3:11−cr−00214−HEH−3)
Argued: March 20, 2013 Decided: June 20, 2013
Before TRAXLER, Chief Judge, WYNN, Circuit Judge, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Matthew W. Greene, GREENE LAW GROUP, PLLC, Fairfax,
Virginia, for Appellant. Olivia L. Norman, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Tyre Antoine Johnson (Johnson) appeals his sentence
following his conviction for conspiracy to commit bank robbery
and his conviction for using a firearm during and in relation to
a crime of violence. We affirm.
I
On November 22, 2011, Johnson pled guilty, without the
benefit of a plea agreement, to one count of conspiracy to
unlawfully obstruct, delay and affect, and attempt to unlawfully
obstruct, delay and affect commerce by robbery (Count 1), 18
U.S.C. § 1951(a), and one count of using a firearm during and in
relation to a crime of violence (Count 2), 18 U.S.C. § 924(c).
The overt acts underpinning Count 1 include, inter alia: (1)
bank robbery of the Virginia Commerce Bank, located at 5350 Lee
Highway, Arlington, Virginia on January 30, 2009; (2) bank
robbery of the Union Bank & Trust, located at 6050 Burke Commons
Road, Burke, Virginia on March 26, 2010; and (3) bank robbery of
the Union First Market Bank, located at 725 Kenmore Avenue,
Fredericksburg, Virginia on November 19, 2010. During the
entire time relevant to these counts, Johnson was on supervised
probation stemming from a conviction for robbery in Maryland
state court in March 2002.

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Notably, two months prior to Johnson entering his guilty
plea in the present case, on September 22, 2011, Johnson was
sentenced in Virginia state court to a total of twenty-four
years’ imprisonment for three separate crimes based upon his
conduct in robbing the Union First Market Bank in
Fredericksburg, Virginia on November 19, 2010 (Johnson’s
Undischarged State Sentence). Just one week after his state
court sentencing, Johnson found himself in the custody of the
United States Marshals Service on a Writ of Habeas Corpus ad
Prosequendum.
In calculating Johnson’s offense level under the United
States Sentencing Guidelines (the Guidelines or USSG) with
respect to Count 1, the Presentence Report (PSR), pursuant to
USSG § 1B1.2(d), treated each of the three bank robberies as a
separate conspiracy conviction, and, pursuant to USSG
§ 3D1.2(d), did not group them together. The parties agree that
as a result, Johnson’s hypothetical separate conspiracy
conviction for the November 19, 2010 bank robbery increased
Johnson’s total offense level by one level.
After making offense-level adjustments not at issue in the
present appeal, the PSR calculated Johnson’s total offense level

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at 32. The PSR calculated his criminal history category at III.1
This combination resulted in an advisory sentencing range under
the Guidelines of 151 to 188 months’ imprisonment. Without
counting Johnson’s hypothetical separate conspiracy conviction
for the November 19, 2010 bank robbery, Johnson’s advisory
sentencing range under the Guidelines would have been 135 to 168
months’ imprisonment. Compared to Johnson’s Guidelines range as
calculated in his PSR, this is a delta of sixteen months’
imprisonment at the low-end of the Guidelines range and a delta
of twenty months’ imprisonment at the high-end. The PSR also
stated that Johnson was subject to a mandatory minimum term of
84 months’ imprisonment with respect to Count 2, 18 U.S.C.
§ 924(c)(1)(A)(ii), and recommended that Johnson receive such
term of imprisonment on that count.
Of relevance to the sole issue on appeal, Step 8 of the
PSR’s Worksheet D, entitled “Undischarged Term of Imprisonment
(See § 5G1.3),” provides that “[i]f the defendant is subject to
an undischarged term of imprisonment, check this box and list
the undischarged term[s] below.” (J.A. 167). In Johnson’s
case, the referenced box is checked and the following
1 Notably, pursuant to USSG § 4A1.2(a)(1), the PSR does not
assess Johnson any criminal history points for the November 19,
2010 bank robbery because such robbery was considered in
determining his offense level.

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information is listed: “Defendant is serving 24 year prison
term for sentences imposed in Fredericksburg Circuit Court on
9/22/11. Pursuant to § 5G1.3(b), this conviction was not a
basis for an increase in the instant offense, therefore a
sentence pursuant to § 5G1.3(c) is warranted.” (J.A. 167).
In relevant part, USSG § 5G1.3(b) provides:
If . . . a term of imprisonment resulted from another
offense that is relevant conduct to the instant
offense of conviction under the provisions of
subsection[] (a)(1) . . . of § 1B1.3 (Relevant
Conduct) and that was the basis for an increase in the
offense level for the instant offense under Chapter
Two (Offense Conduct) or Chapter Three (Adjustments),
the sentence for the instant offense shall be imposed
as follows:
(1) the court shall adjust the sentence for any
period of imprisonment already served on the
undischarged term of imprisonment if the court
determines that such period of imprisonment will
not be credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of
the undischarged term of imprisonment.
Id. In contrast to USSG § 5G1.3(b), USSG § 5G1.3(c) provides:
“(Policy Statement) In any other case involving an undischarged
term of imprisonment, the sentence for the instant offense may
be imposed to run concurrently, partially concurrently, or
consecutively to the prior undischarged term of imprisonment to
achieve a reasonable punishment for the instant offense.” USSG
§ 5G1.3(c), p.s (emphasis added).

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The sole addendum to Johnson’s PSR stated that, on February
7, 2012, Johnson advised the probation officer who had prepared
the PSR that he had no objections to the PSR. Moreover, in
Johnson’s sentencing memorandum filed with the district court on
February 21, 2012, he expressly states that his sentencing range
under the Guidelines, as set forth in the PSR, “was properly
calculated to be 151-188 months for violation of Count I, and 84
months for violation of Count II, to be served consecutive to
any other sentence imposed.”2 (J.A. 53). Tracking the language
of USSG § 5G1.3(c), Johnson also stated in his sentencing
memorandum that
[u]nder the Guidelines, [USSG §] 5G1.3, this Court has
the discretion to impose a sentence that is
concurrent, partially concurrent, or consecutive[] to
Defendant’s related state court sentence. Considering
Defendant’s age, his role in the conspiracy and the
length of the minimum sentence available, Defendant
would urge this Court to run the non-mandatory
sentence concurrent with the undischarged portion of
his state sentence.
(J.A. 61) (emphasis added).
In response to questioning by the district court at
Johnson’s sentencing hearing on February 24, 2012, counsel for
2 Johnson does not dispute that, by statute, any sentence
that he received with respect to Count 2 had to run consecutive
to any other sentence imposed. See 18 U.S.C. § 924(c)(1)(D)(ii)
(“[N]o term of imprisonment imposed on a person under this
subsection shall run concurrently with any other term of
imprisonment imposed on the person . . . .”).

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Johnson affirmed that he had received a copy of the PSR and the
probation officer’s computation of the Guidelines, that he had
“had an ample opportunity to go over both of them with [his]
client,” and that he had no additions or corrections thereto
that he wanted to bring to the district court’s attention.
(J.A. 69). Similarly, the government affirmed during the
hearing that it had no additions or corrections to Johnson’s
PSR. Consistent with Johnson’s sentencing memorandum, Johnson’s
counsel expressed his “hope” during Johnson’s sentencing hearing
that the district court would consider running Count 1
concurrently with Johnson’s State Sentence, which Johnson’s
counsel contended “would result in a 31-year sentence, which is
a substantial period of time . . . .” (J.A. 75).
After hearing fully the arguments of opposing counsel and
after giving Johnson an opportunity to speak on his own behalf,
the district court sentenced Johnson to 151 months’ imprisonment
on Count 1 and to 84 months’ imprisonment on Count 2, to run
consecutive to each other and consecutive to Johnson’s
Undischarged State Sentence. With respect to Johnson’s request
that his 151-month sentence on Count 1 run concurrent to his
Undischarged State Sentence, the district court stated:
Well, Mr. Johnson, based upon the fact that you
were involved in three robberies, based upon the fact
that you were inside the bank, and whether or not you
were carrying a firearm, the level of intimidation was
such that a number of these bank employees have had

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lasting psychological problems as a result of the way
you threatened and basically abused them. And the
fact that you were on supervised release for robbery
at that time, all in my mind do not warrant a
concurrent sentence, so therefore the sentencing will
be imposed consecutively.
(J.A. 77-78).
The district court went on to state that it had reviewed
the Guidelines as advisory only and had reviewed all the factors
set forth in 18 U.S.C. § 3553(a). The district court further
stated that in fashioning Johnson’s sentence it had considered
the nature and circumstances of the offense, the methodology of
the robberies, the intimidation of the victims, the number of
robberies in which Johnson was involved, and his prior criminal
history. The court noted that Johnson had a prior robbery
conviction and that he was on supervised probation for that
robbery at that time of the instant offenses. The district
court then went on to state:
And then I look to what type of sentence is
adequate but not longer than necessary to achieve the
other objectives of 18, United States Code, Section
3553(a), and this Court believes that a sentence that
is adequate but not longer than necessary to promote
respect for the law, provide for deterrence, and
protect the community from people just like you, is
commitment to the U.S. Bureau of Prisons for a term of
235 months. That will consist of 151 months on Count
1, and 84 months on Count 2. Those sentences by law
run consecutively. They will also run consecutively
to the sentence that you’re currently . . . serving as
a result of a sentence imposed by the Fredericksburg
Circuit Court.

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(J.A. 78-79). The district court also imposed a term of three
years’ supervised release on each count, to run concurrently.
Johnson noted this timely appeal.
II
On appeal, Johnson’s sole assignment of error is his claim
that the district court abused its discretion by refusing to run
his 151-month sentence on Count 1 concurrently with his
Undischarged State Sentence as he contends is required by the
express terms of USSG § 5G1.3(b). According to Johnson, USSG
§ 5G1.3(b) applies in sentencing him on Count 1 because the
conduct underlying his Undischarged State Sentence was relevant
conduct to Count 1 under USSG § 1B1.3(a)(1).
In response, the government first contends that Johnson
failed to bring this claim of error to the attention of the
district court, and therefore, our review is limited to plain
error review under Federal Rule of Criminal Procedure 52(b)
(Rule 52(b)). Under plain error review, the government contends
that we should affirm Johnson’s sentence. Johnson opposes the
application of plain error review on the ground that he did
bring the USSG § 5G1.3(b) issue to the district court’s
attention by requesting the district court to exercise its
discretion to run his sentence on Count 1 concurrently with his
Undischarged State Sentence.

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A
Before addressing the merits of Johnson’s sentencing
challenge, we must resolve the threshold issue of error
preservation. Under the general rule, we “will not correct a
legal error made in criminal trial court proceedings unless the
defendant first brought the error to the trial court’s
attention.” Henderson v. United States, 133 S. Ct. 1121, 1124
(2013). Rule 52(b) operates as an exception to this general
rule by providing that “[a] plain error that affects substantial
rights may be considered even though it was not brought to the
court’s attention.” Fed. R. Crim. P. 52(b).
Our review of the record discloses that Johnson failed to
bring to the district court’s attention his claim that
USSG § 5G1.3(b) requires his 151-month sentence on Count 1 to
run concurrently with his Undischarged State Sentence, and
therefore, our review is limited to plain error review under
Rule 52(b). The record leaves no doubt that during the entire
sentencing process, the defendant, the government, and the
district court all operated under the belief that subsection (c)
as opposed to subsection (b) of USSG § 5G1.3 properly applied to
the issue of whether Johnson’s sentence on Count 1 should run
concurrent with or consecutive to his Undischarged State
Sentence.

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The first item of evidence of this collective belief is the
PSR. Step 8 on Worksheet D of the PSR, entitled “Undischarged
Term of Imprisonment (See § 5G1.3),” provided: “Defendant is
serving 24 year prison term for sentences imposed in
Fredericksburg Circuit Court on 9/22/11. Pursuant to
§ 5G1.3(b), this conviction was not a basis for an increase in
the instant offense, therefore a sentence pursuant to § 5G1.3(c)
is warranted.” (J.A. 167). Stating the obvious, this language
provides that subsection (c) with its discretionary authority on
the concurrent/consecutive issue not subsection (b) with its
run-the-sentences-concurrently mandate applies in sentencing
Johnson.
The second item of evidence of collective belief is
Johnson’s sentencing memorandum, giving a thumbs-up to the PSR
on this issue. In Johnson’s sentencing memorandum, he nowhere
claims the applicability of USSG § 5G1.3(b), but rather,
tracking the language of USSG § 5G1.3(c), contends that under
USSG § 5G1.3, the district court “has the discretion to impose a
sentence that is concurrent, partially concurrent, or
consecutive[] to Defendant’s related state court sentence.”
(J.A. 61). This language is completely inconsistent with the
position Johnson now takes on appeal that, under USSG
§ 5G1.3(b), the district court had no discretion to run Count 1
consecutive to Johnson’s Undischarged State Sentence. Moreover,

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to the extent Johnson would try to argue that his statement that
the district court had discretion on the issue served only as
his acknowledgement that post-Booker the Guidelines are advisory
rather than mandatory, see United States v. Booker, 543 U.S.
220, 245 (2005) (rendering Guidelines “effectively advisory”),
the argument fails. The statement in Johnson’s sentencing
memorandum clearly attributes the district court’s discretionary
authority on the issue to USSG § 5G1.3, which could only mean
USSG § 5G1.3(c).
The third item of evidence of the collective belief that
subsection (c) as opposed to subsection (b) of USSG § 5G1.3
applies is the transcript of Johnson’s sentencing hearing. Such
transcript shows Johnson’s counsel affirming that he had
received a copy of the PSR as well a copy of the probation
officer’s computation of the Guidelines, that he had had ample
opportunity to go over both with his client, and that he had no
additions or corrections to the PSR that he wanted to bring to
the district court’s attention. The same transcript shows the
government informing the district court that it had no additions
or corrections to the PSR. The district court immediately
thereafter stated: “The report will be ordered filed, made part
of the record in the case. This Court will adopt the officer’s
factual findings and conclusions.” (J.A. 70). Consistent with
the PSR’s conclusion that USSG § 5G1.3(c) and not USSG

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§ 5G1.3(b) applies in sentencing Johnson and the statement in
Johnson’s sentencing memorandum that, under USSG § 5G1.3, the
district court “has the discretion to impose a sentence that is
concurrent, partially concurrent, or consecutive[] to” his
Undischarged State Sentence, (J.A. 61), Johnson never asserted
the applicability of USSG § 5G1.3(b) and did not object when the
district court ordered his sentence on Count 1 to run
consecutive to his Undischarged State Sentence.
In sum, the record is wholly devoid of evidence showing
that Johnson brought to the district court’s attention the claim
he now makes on appeal that subsection (b) not subsection (c) of
USSG § 5G1.3 applies in sentencing him. In fact, the record is
uniform in showing that Johnson took the opposite position
below—i.e., that subsection (c) not subsection (b) of USSG
§ 5G1.3 applies in sentencing him. The crux of Johnson’s
assignment of error on appeal is that, in sentencing him, the
district court procedurally erred by misapplying the Guidelines.
Because Johnson failed to object to the application of USSG
§ 5G1.3(c) or, conversely, to the non-application of USSG
§ 5G1.3(b), our review is for plain error. See United States v.
Brack, 651 F.3d 388, 392 (4th Cir. 2011) (reviewing district
court’s application of the abuse-of-trust enhancement for plain
error under Rule 52(b) because defendant failed to object to
application of such enhancement at sentencing).

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B
In United States v. Olano, 507 U.S. 725 (1993), the Supreme
Court set forth four prongs that an appellant must meet in order
to obtain appellate relief under plain error review, id. at 732-
36, and in subsequent cases the Court has fine-tuned those
prongs. Under the first prong, the appellant must establish the
existence of legal error “that has not been intentionally
relinquished or abandoned, i.e., affirmatively waived, by the
appellant,” Puckett v. United States, 556 U.S. 129, 135 (2009).
Olano, 507 U.S. at 732-33. Under the second prong, the
appellant must establish that the legal error is plain, i.e.,
“‘clear’ or, equivalently, ‘obvious,’” id. at 734, at least by
the time of appellate consideration, Henderson, 133 S. Ct. at
1130-31. Under the third prong, the appellant must establish
that the legal error affected his substantial rights. Olano,
507 U.S. at 734. In the sentencing context, this means that the
appellant must show us a non-speculative basis in the record for
concluding the district court would have imposed a lower
sentence but for such error. United States v. Knight, 606 F.3d
171, 178 (4th Cir. 2010). Under the fourth prong, we “should
correct a plain forfeited error affecting substantial rights if
the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Olano, 507 U.S. at 736
(alteration marks and internal quotation marks omitted).

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As the Supreme Court has repeatedly made clear, “[m]eeting
all four prongs is difficult, ‘as it should be.’” Puckett, 556
U.S. at 135 (quoting United States v. Dominguez Benitez, 542
U.S. 74, 83 n.9 (2004)). See also United States v. Robinson,
627 F.3d 941, 956 (4th Cir. 2010) (“Plain error review exists to
correct only the most grievous of unnoticed errors.”). By
design, the strictures on appellate review of forfeited error
work to induce the timely raising of claims and objections
below, where the district court is ordinarily in the best
position to determine the relevant facts and adjudicate the
dispute. Puckett, 556 U.S. at 134.
The first prong of Olano’s plain error test asks whether
the district court erred as contended by Johnson. Stated
simply, Johnson contends the district court procedurally erred
by applying USSG § 5G1.3(c) instead of USSG § 5G1.3(b) in
determining whether to run his 151-month sentence on Count 1
consecutive to or concurrent with his Undischarged State
Sentence. Had the district court applied USSG § 5G1.3(b),
Johnson posits, the district court would have ordered his
151-month sentence on Count 1 to run concurrent with his
Undischarged State Sentence.
In addressing whether the district court erred as contended
by Johnson, we first note that although post-Booker the
Guidelines are no longer mandatory, Booker, 543 U.S. at 245,

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when sentencing a defendant, Supreme Court precedent mandates
that the district court correctly calculate the defendant’s
applicable sentencing range under the Guidelines. Gall v.
United States, 552 U.S. 38, 49, 51 (2007); Rita v. United
States, 551 U.S. 338, 351-54 (2007). Logic dictates that the
district court must also correctly determine the rules as set
forth in Chapter 5 Part G of the Guidelines for implementing the
total term of imprisonment.
USSG § 5G1.3 governs the imposition of a sentence when the
defendant is subject to an undischarged term of imprisonment.
Johnson contends subsection (b) of this Guideline section
applies to him with respect to his 151-month sentence on Count
1, which subsection provides in relevant part:
If . . . a term of imprisonment resulted from another
offense that is relevant conduct to the instant
offense of conviction under the provisions of
subsection[] (a)(1) . . . of § 1B1.3 (Relevant
Conduct) and that was the basis for an increase in the
offense level for the instant offense under Chapter
Two (Offense Conduct) or Chapter Three (Adjustments),
the sentence for the instant offense shall be imposed
as follows:
(1) the court shall adjust the sentence for any
period of imprisonment already served on the
undischarged term of imprisonment if the court
determines that such period of imprisonment will
not be credited to the federal sentence by the
Bureau of Prisons; and
(2) the sentence for the instant offense shall be
imposed to run concurrently to the remainder of
the undischarged term of imprisonment.
Id.

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As we have previously explained:
[USSG] § 5G1.3(b) prevents the double counting that
occurs when separate, non-offense conduct could,
absent operation of this subsection, otherwise be the
basis both (1) for sentencing defendant as if that
conduct had been part of the offense(s) of conviction,
and (2) for additional punishment of that same conduct
in another, and separate, criminal proceeding.
Section 5G1.3 thereby operates to mitigate the
possibility that the fortuity of two separate
prosecutions will grossly increase a defendant’s
sentence.
United States v. Rouse, 362 F.3d 256, 262 (4th Cir. 2004)
(internal quotation marks and citations omitted).
Here, the government does not dispute that the conduct
underlying Johnson’s Undischarged State Sentence constitutes
relevant conduct to Count 1 pursuant to USSG § 1B1.3(a)(1), and
does not dispute that such conduct served to increase Johnson’s
total offense level by one-level. Assuming arguendo that USSG
§ 5G1.3(b) applies to advise the district court that Johnson’s
sentence on Count 1 should run concurrent with his Undischarged
State Sentence, and therefore, the district court erred in
concluding that USSG § 5G1.3(c) applies instead of USSG
§ 5G1.3(b), the error is not plain. Given (1) the manner in
which the Guidelines direct the calculation of Johnson’s total
offense level (i.e., treating each of the three robberies
charged in Count 1 as separate conspiracy offenses), and (2)
given USSG § 5G1.3(b)’s purpose of avoiding double punishment
for the same criminal conduct, the conclusion that a proper

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application of USSG § 5G1.3(b) requires all 151 months of
Johnson’s sentence on Count 1 to run concurrent to his 288-month
Undischarged State Sentence, when the conduct underlying
Johnson’s Undischarged State Sentence accounts for only sixteen
of the 151 months’ imprisonment to which the district court
sentenced Johnson on Count 1, is not at all clear, or
equivalently, obvious. In fact, applying USSG § 5G1.3(b) as
Johnson posits results in Johnson receiving no time for his
other two bank robberies which are wholly unrelated to the
conduct underlying his Undischarged State Sentence. We are
extremely skeptical that the Guidelines intend such an enormous
windfall to Johnson.
Because Johnson was not charged in state court for
conspiracy to unlawfully obstruct, delay and affect commerce by
robbery, the far more likely scenario is that proper application
of USSG § 5G1.3(b) results in the Guidelines advising the
district court to run sixteen months of Johnson’s 151-month
sentence on Count 1 concurrent with sixteen months of his
Undischarged State Sentence. This scenario achieves USSG
§ 5G1.3(b)’s purpose of avoiding double punishment for the same
conduct, yet also avoids Johnson from receiving a sentencing
windfall.
Unfortunately for Johnson, even assuming arguendo that the
district court’s failure to conclude that USSG § 5G1.3(b)

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applies to advise the district court that sixteen months of
Johnson’s 151-month sentence on Count 1 should run concurrent
with his Undischarged State Sentence constitutes error that is
plain, thus satisfying the first two prongs of Olano’s plain
error test, Johnson cannot satisfy the third prong.
Specifically, Johnson fails to carry his burden of establishing
that the district court’s failure to so conclude affected his
substantial rights. See United States v. Marcus, 130 S. Ct.
2159, 2164 (2010) (As a general rule, an error affects a
defendant’s substantial rights if the error was prejudicial,
which “means that there must be a reasonable probability that
the error affected the outcome of the [proceeding].”). In other
words, on this record, Johnson cannot show a reasonable
probability that, but for the assumed error, the district court
would have run sixteen months of his sentence on Count 1
concurrent with his Undischarged State Sentence. See United
States v. John, 597 F.3d 263, 284-85 (5th Cir. 2010) (“A
sentencing error affects a defendant’s substantial rights if he
can show a reasonable probability that, but for the district
court’s misapplication of the Guidelines, he would have received
a lesser sentence.” (internal quotation marks and alteration
marks omitted)). In attempting to meet Olano’s third prong,
Johnson cannot rely on his own speculation of prejudice or the
mere possibility of prejudice. Robinson, 627 F.3d at 955.

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Rather, there must be record-based evidence of prejudice in
order for us to conclude in a non-speculative manner that he
satisfied the third prong. Here, there is no record-based
evidence that had the district court concluded that USSG
§ 5G1.3(b) as opposed to USSG § 5G1.3(c) applies in sentencing
Johnson with respect to Count 1, the district court would have
run even one day of Johnson’s sentence on Count 1 concurrent
with his Undischarged State Sentence. The district court’s
comments at sentencing responding to Johnson’s request for the
district court to exercise its discretion to run Count 1
concurrent with his Undischarged State Sentence point to only
one conclusion—that the district court would have imposed the
same exact sentence. In particular, the fact that Johnson had
made a career out of robbing banks, the fact that he was on
supervised release for a robbery conviction at the time he
committed the bank robberies at issue in the instant offenses,
the fact that Johnson had been an inside-man during such
robberies, and the fact that Johnson employed a high level of
threat and intimidation in carrying out such bank robberies all
combined to motivate the district court to order Count 1 to run
consecutive to Johnson’s Undischarged State Sentence. In the
absence of a non-speculative basis upon which to conclude the
assumed procedural sentencing error affects Johnson’s
substantial rights, Johnson has failed to carry his burden to

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obtain appellate relief from his sentence under plain error
review. Accordingly, we affirm Johnson’s sentence.
AFFIRMED

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