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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-11578
Non-Argument Calendar
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D.C. Docket No. 8:17-cr-00345-WFJ-TGW-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LEWIS JEREMIAH JOHNSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(March 6, 2020)
Before WILSON, ANDERSON and HULL, Circuit Judges.
PER CURIAM:
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After a jury trial, Lewis Jeremiah Johnson appeals his total 144-month
sentence for two counts of being a felon in possession of firearms, in violation of
18 U.S.C. §§ 922(g)(1) and 924(a)(2), two counts of possession with intent to
distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(D), and one
count of possessing a firearm in furtherance of a drug trafficking crime, in
violation of 18 U.S.C. § 924(c). On appeal, Johnson argues the district court
clearly erred in assigning criminal history points under the U.S.S.G. § 4A1.1 to
three of his prior convictions based on unreliable online docket sheets. As
explained in more detail below, the district court said that even if the court did not
assign any criminal history points to these three convictions, Johnson still had a
criminal history category VI, resulting in the same advisory guidelines range.
Therefore, after careful review, we affirm Johnson’s sentence.
I. BACKGROUND
At Johnson’s sentencing, the district court calculated a total of 20 criminal
history points for Johnson’s prior sentences. Over Johnson’s objection, the district
court included in that criminal history score: (1) 2 points for 2007 convictions for
possession of marijuana and providing a false name to law enforcement that
resulted in 13 months and 14 days in custody, in paragraph 67 of the presentencing
investigation report (“PSI”); (2) 2 points for a 2010 conviction for driving while
his license was suspended/revoked that resulted in 270 days in custody, in
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paragraph 73 of the PSI; and (3) 2 points for a 2010 conviction for having no valid
driver’s license that resulted in 60 days in custody, in paragraph 74 of the PSI. In
so doing, the district court relied upon copies of electronic docket sheets from the
Pinellas County Clerk’s website, which the district court deemed reliable. 1
The district court determined that Johnson’s 20 criminal history points
placed him in criminal history category VI. The district court further stated that,
even if it had ruled in Johnson’s favor on each objection to the PSI, Johnson’s
criminal history category of VI would have remained the same. The district court
also denied Johnson’s request for a downward departure under U.S.S.G.
§ 4A1.3(b), rejecting Johnson’s argument that criminal history category VI
overrepresented the seriousness of his criminal history.
Johnson also requested a downward variance. After finding that Johnson’s
advisory guidelines range was 120 to 150 months, the district court did grant
Johnson’s request for a variance and imposed 84-month sentences on Johnson’s
two § 922(g) firearm offenses and 60-month sentences on his two § 841(a) drug
offenses, all of which ran concurrent to each other, followed by a mandatory
1
During the sentencing, Johnson presented copies of the electronic docket sheets to the
district court for review, but the copies were not formally proffered or introduced into the record.
This Court sua sponte supplemented the appellate record to include these electronic docket
sheets.
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consecutive 60-month sentence on his § 924(c) firearm offense, for a total sentence
of 144 months in prison.
On appeal, Johnson renews the criminal-history scoring argument he made
in the district court at sentencing. Specifically, Johnson contends he should not
have received any criminal history points for the prior sentences in paragraphs 67,
73, and 74 of the PSI because information about the length of these sentences was
based on the electronic docket sheets, which he contends were unreliable.
II. STANDARD OF REVIEW
In reviewing a district court’s calculations under the Sentencing Guidelines,
including the assessment of criminal history points, “we review purely legal
questions de novo, and the district court’s factual findings for clear error.” United
States v. Monzo,
852 F.3d 1343, 1351 (11th Cir. 2017). To be clearly erroneous,
the finding of the district court must leave us “with a definite and firm conviction
that a mistake has been committed.” United States v. Rothenberg,
610 F.3d 621,
624 (11th Cir. 2010) (quotation marks omitted). However, calculations of criminal
history points are subject to a harmless error analysis. See United States v. Alicea,
875 F.3d 606, 609 (11th Cir. 2017).
Harmless errors have “no substantial influence on the outcome and sufficient
evidence uninfected by error supports the decision.”
Monzo, 852 F.3d at 1351
(quotation marks omitted); see also Fed. R. Crim. P. 52(a). Under harmless error
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review, if we determine “that the district court misapplied the Guidelines, a remand
is appropriate unless [we] conclude[ ], on the record as a whole, that . . . the error
did not affect the district court’s selection of the sentence imposed.” Williams v.
United States,
503 U.S. 193, 203,
112 S. Ct. 1112, 1120-21 (1992); see also United
States v. Scott,
441 F.3d 1322, 1329 (11th Cir. 2006) (stating that “we are not
required to vacate the sentence and remand the case if the court would have likely
sentenced [the defendant] in the same way without the error”).
III. GENERAL PRINCIPLES
To determine a defendant’s criminal history category under the Sentencing
Guidelines, the district court first assigns points for each prior sentence pursuant to
U.S.S.G. § 4A1.1. The number of points assigned to each prior sentence is
determined by its length.
Id. § 4A1.1(a)-(c). 2 The total number of points
determines the defendant’s criminal history category.
Id. § 4A1.1. Relevant to
Johnson’s appeal, a defendant with 10 to 12 criminal history points falls in
criminal history category V, and a defendant with 13 or more criminal history
2
A defendant receives 3 criminal history points for a prior sentence greater than one year
and one month. U.S.S.G. § 4A1.1(a). For each prior sentence of at least 60 days that does not
fall under § 4A1.1(a), a defendant receives 2 criminal history points.
Id. § 4A1.1(b). For a prior
sentence not addressed by § 4A1.1(a) or (b), a defendant receives 1 criminal history point, up to
a total of 4 points.
Id. § 4A1.1(c). The Guidelines define a prior sentence as “any sentence
previously imposed upon adjudication of guilt . . . for conduct not part of the instant offense.”
Id. § 4A1.2(a)(1). Additionally, a sentence of imprisonment is “a sentence of incarceration”
which “refers to the maximum sentence imposed.”
Id. § 4A1.2(b)(1). The commentary explains
that “[t]o qualify as a sentence of imprisonment, the defendant must have actually served a
period of imprisonment on such sentence.”
Id. § 4A1.2 cmt. n.2.
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points falls in criminal history category VI.
Id. §§ 4A1.1, 5A (Sentencing Table)
& cmt. n.3.
At sentencing, the district court may consider any relevant information,
without regard to its admissibility under the Federal Rules of Evidence, “provided
that the information has sufficient indicia of reliability to support its probable
accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Ghertler,
605 F.3d 1256,
1269 (11th Cir. 2010). Concomitantly, the defendant “has a due process right . . .
not to be sentenced based on false or unreliable information,” and “[t]o prevail on a
challenge to a sentence based on the consideration of such information, a defendant
must show (1) that the challenged evidence is materially false or unreliable and (2)
that it actually served as the basis for the sentence.”
Ghertler, 605 F.3d at 1269.
IV. DISCUSSION
This Court has not addressed in a published opinion under what
circumstances a district court may consider a state court’s electronic docket in
assigning criminal history points under U.S.S.G. § 4A1.1. However, we need not
address this issue to resolve Johnson’s appeal because, even assuming arguendo
that there was clear error, the district court’s assigning criminal history points to
the three objected-to prior sentences was harmless.
As the district court pointed out at sentencing, had the district court assigned
0 criminal history points for each of the three prior sentences in paragraphs 67, 73,
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and 74 of the PSI—as Johnson contends it should have—Johnson would have
received a total of 14 criminal history points, and his criminal history category VI
and resulting advisory guidelines range of 120 to 150 months would have remained
the same. See U.S.S.G. §§ 4A1.1, 5A (Sentencing Table).
Moreover, nothing in the record suggests the district court was inclined to
impose a lower sentence. The district court denied Johnson’s request for a
downward departure, finding that Johnson’s criminal history was not
overrepresented and showed his recidivist behavior. In addition, the district court’s
downward variance was not based on Johnson’s criminal history, but rather on the
unusual circumstances of one of Johnson’s § 922(g) firearm offenses. In
particular, one of the firearms that Johnson was convicted of possessing was a
stolen firearm with a high capacity magazine that he took from an intruder after the
intruder shot him in the abdomen. The district court explained that it had varied
downward because Johnson had possessed this particular firearm only after
wresting it from an unexpected robber, and the firearm had increased Johnson’s
offense level under the Sentencing Guidelines “by multiple points.” In short,
based on the record as a whole, it is highly improbable that the district court would
have imposed a lower sentence if it had assigned Johnson 14 criminal history
points rather than 20 criminal history points. See
Williams, 503 U.S. at 203, 112
S. Ct. at 1120-21;
Scott, 441 F.3d at 1329.
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Given that any error by the district court in relying on the online docket
sheets to calculate Johnson’s criminal history score was harmless, we affirm
Johnson’s total 144-month sentence.
AFFIRMED.
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