USA v. Anthony Johnson

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-11634
________________________

D.C. Docket No. 3:16-cr-00111-TJC-PDB-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ANTHONY JOHNSON,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 13, 2020)
Before WILSON and BRANCH, Circuit Judges, and RESTANI,
*
Judge.

PER CURIAM

*
The Honorable Jane A. Restani, United States Judge, U.S. Court of International Trade, sitting
by designation.
Case: 18-11634 Date Filed: 02/13/2020 Page: 1 of 9

Anthony Johnson appeals his total 456-month sentence as procedurally and
substantively unreasonable. Johnson, who represented himself at trial, was
convicted by a jury of nine counts of bank fraud, in violation of 18 U.S.C. § 1344;
nine counts of aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1);
three counts of mail fraud, in violation of 18 U.S.C. § 1341; and seven counts of
falsely representing a social security number, in violation of 42 U.S.C.
§ 408(a)(7)(B). The district court sentenced Johnson to 240 months’ imprisonment
on the underlying fraud and false representation counts, and 24 months on each of
the nine aggravated identity theft counts, to run consecutively to each other and to
the 240-month sentence for a total of 456 months’ imprisonment.
Johnson first argues that his sentences are procedurally unreasonable
because the court applied an obstruction-of-justice enhancement to his offense
level without supporting it with specific findings. Second, he contends that his
sentences are procedurally unreasonable because the district court failed to
properly consider the federal Sentencing Guidelines and corresponding
commentary when it imposed consecutive sentences on the nine aggravated
identity theft convictions. Finally, Johnson asserts that his sentences are
substantively unreasonable because the district court essentially gave no weight to
the guideline range of 50 to 71 months and failed to avoid unwarranted sentencing
2
Case: 18-11634 Date Filed: 02/13/2020 Page: 2 of 9

3

disparities with similarly situated defendants. After considering the briefs and
record, and with the benefit of a well-presented oral argument, we affirm
Johnson’s sentences.
I
We review the reasonableness of a district court’s sentence for an abuse of
discretion. United States v. Trailer, 827 F.3d 933, 935 (11th Cir. 2016) (per
curiam). First, we review whether a sentencing court procedurally erred, such as
by basing the sentence on clearly erroneous facts or failing to adequately explain
the sentence. Id. at 936. Then, we look to “whether the sentence is substantively
reasonable in light of the totality of the circumstances” and the 18 U.S.C. § 3553(a)
factors. Id. “The party challenging the sentence bears the burden of showing that
it is unreasonable.” Id.
A district court’s task is to impose a sentence that adequately reflects the
seriousness of the offense, promotes respect for the law, provides just punishment
for the offense, provides adequate deterrence, protects the public from further
crimes of the defendant, and provides the defendant with needed education or
treatment. 18 U.S.C. § 3553(a)(2). In doing so, the court must consider the nature
and circumstances of the offense, the history and characteristics of the defendant,
the kinds of sentences available, the guideline range, pertinent policy statements of
the Sentencing Commission, the need to avoid unwarranted sentencing disparities,
Case: 18-11634 Date Filed: 02/13/2020 Page: 3 of 9

4

and the need to provide restitution to victims. Id. § 3553(a). Additionally, the
sentence shall be “sufficient, but not greater than necessary, to comply with the
purposes” of § 3553(a)(2). Id.
II
Johnson argues that his total sentence is procedurally unreasonable because
the district court imposed the obstruction-of-justice enhancement without making
specific findings to support the enhancement, such as that he committed perjury or
provided materially false information.
1
The Sentencing Guidelines provide a two-
level increase to a defendant’s offense level if the defendant willfully obstructed or
attempted to obstruct “the administration of justice with respect to the
investigation, prosecution, or sentencing of the instant offense of conviction.”
U.S.S.G. § 3C1.1. The Guidelines give a non-exhaustive list of examples of
conduct that courts may consider obstructive, including suborning perjury or
providing materially false information to a judge. Id. § 3C1.1, comment. (n.4)(B),
(F).
Here, the district court expressly found that Johnson falsely asserted that his
fraudulent conduct was not criminal and was intended to expose weaknesses in the

1
We review a district court’s findings of fact supporting a sentencing enhancement for clear
error and review whether a particular guideline enhancement applies to a given set of facts de
novo. United States v. Alberts, 859 F.3d 979, 982 (11th Cir. 2017).

Case: 18-11634 Date Filed: 02/13/2020 Page: 4 of 9

5

U.S. financial system; that the case involved national security concerns and,
therefore, should be removed to the U.S. Foreign Intelligence Surveillance Court;
and that he was working with other law enforcement agencies. Thus, the district
court did make specific findings supporting the enhancement. Accordingly,
Johnson’s sentence was not procedurally unreasonable based on the imposition of
the obstruction-of-justice enhancement.
III
Next, Johnson challenges his consecutive aggravated identity theft
sentences. Johnson argues that the district court failed to consider the factors in
U.S.S.G. § 5G1.2, failed to properly explain its decision to run the sentences
consecutively, and failed to mention that the underlying offenses were groupable
and that such sentences should generally run concurrently.
The aggravated identity theft statute requires a two-year sentence for each
conviction, which must run consecutively to any other sentence imposed under a
different statute. 18 U.S.C § 1028A(a)(1), (b)(2). However, sentences for multiple
violations of § 1028A may, in the court’s discretion, run concurrently, “provided
that such discretion shall be exercised in accordance with any applicable guidelines
and policy statements issued by the Sentencing Commission[.]” Id. § 1028A(b)(4).
Case: 18-11634 Date Filed: 02/13/2020 Page: 5 of 9

6

The Application Notes to section 5G1.2 of the Guidelines
2
provide that, in
deciding whether aggravated identity theft sentences should run concurrently or
consecutively, the district court should consider the nature and seriousness of the
underlying offenses, the purposes of § 3553(a), and whether the underlying
offenses are groupable. U.S.S.G.§ 5G1.2, commen t. (n.2)(B). Application Note 2
states that, generally, multiple § 1028A counts should run concurrently when the
underlying offenses are groupable under U.S.S.G. § 3D1.2.
3
Id.
The district court did not err when it imposed consecutive sentences for
aggravated identity theft. The record reflects that the district court did consider the
factors listed in § 5G1.2. The court stated that it had discretion to run the
sentences consecutively or concurrently, and that it decided to run them

2
“Commentary and Application Notes to the Guidelines are binding on the courts unless they
contradict the plain meaning of the text of the Guidelines.” United States v. Wright, 862 F.3d
1265, 1274 n.3 (11th Cir. 2017).

3
Section 3D1.2 provides:

All counts involving substantially the same harm shall be grouped together into a single
Group. Counts involve substantially the same harm within the meaning of this rule:
(a) When counts involve the same victim and the same act or transaction.
(b) When counts involve the same victim and two or more acts or transactions connected
by a common criminal objective or constituting part of a common scheme or plan.
(c) When one of the counts embodies conduct that is treated as a specific offense
characteristic in, or other adjustment to, the guideline applicable to another of the counts.
(d) When the offense level is determined largely on the basis of the total amount of harm
or loss, the quantity of a substance involved, or some other measure of aggregate harm, or
if the offense behavior is ongoing or continuous in nature and the offense guideline is
written to cover such behavior.

U.S.S.G. § 3D1.2.

Case: 18-11634 Date Filed: 02/13/2020 Page: 6 of 9

7

consecutively in light of Johnson’s extensive history of similar crimes. Further,
the court addressed the § 3553(a) factors at length during the sentencing hearing.
Thus, while the court did not specifically state that multiple identity theft counts
generally warrant concurrent sentences when the underlying offenses are
groupable, the record reflects that the district court was thorough and aware of the
Guidelines and their commentary. Therefore, Johnson’s total sentence was not
procedurally unreasonable based on his consecutive aggravated identity theft
sentences.
IV
Last, Johnson argues that his total sentence is substantively unreasonable
because the district court essentially ignored the Guidelines. In support, he points
to the district court’s statements that the obstruction-of-justice enhancement had no
impact on the sentence it imposed, that the guideline range was inadequate, and
that it would still impose the same total sentence when his guideline range was
reduced from 70–87 months to 57–71 months. Johnson also argues that the district
court failed to avoid unwarranted sentencing disparities because his sentence far
exceeded sentences for similarly situated defendants in other cases.
A district court abuses its discretion and imposes a substantively
unreasonable sentence if it “(1) fails to afford consideration to relevant factors that
were due significant weight, (2) gives significant weight to an improper or
Case: 18-11634 Date Filed: 02/13/2020 Page: 7 of 9

8

irrelevant factor, or (3) commits a clear error of judgment in considering the proper
factors.” United States v. Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (en banc).
We will vacate a sentence as substantively unreasonable “if, but only if, we are left
with the definite and firm conviction that the district court committed a clear error
of judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” Id.
at 1190 (internal quotation mark omitted). We have repeatedly found that an
above-guideline sentence is substantively reasonable where the court considered
the § 3553(a) factors and the sentence was within the statutory maximum. See
United States v. Overstreet, 713 F.3d 627, 636–40 (11th Cir. 2013) (affirming a
420-month sentence where the guideline range was 180–210 months and the
statutory maximum was life); United States v. Early, 686 F.3d 1219, 1222 (11th
Cir. 2012) (affirming a 210-month sentence where the guideline range was 78–97
months and the statutory maximum was 900 months).
Here, the district court thoroughly discussed the relevant § 3553(a) factors,
the sentence was within the statutory maximum, and the court justified the above-
guideline sentence with Johnson’s significant criminal history and repeated
violations of supervised release. Moreover, given Johnson’s remarkably extensive
criminal history, he has not pointed to any similarly situated defendants.
Accordingly, we are not left with “the definite and firm conviction that the district
Case: 18-11634 Date Filed: 02/13/2020 Page: 8 of 9

9

court committed a clear error of judgment,” see Irey, 612 F.3d at 1190, and
conclude that Johnson’s total sentence is not substantively unreasonable.
AFFIRMED.
Case: 18-11634 Date Filed: 02/13/2020 Page: 9 of 9