United States v. Larry David Johnson, AKA Pie , 452 F. App'x 927 ( 2012 )


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  •                                                                  [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ________________________ U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    JANUARY 24, 2012
    No. 11-12290
    Non-Argument Calendar           JOHN LEY
    CLERK
    ________________________
    D.C. Docket No. 6:10-cr-00028-BAE-GRS-1
    UNITED STATES OF AMERICA,
    llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,
    versus
    LARRY DAVID JOHNSON,
    a.k.a. Pie,
    llllllllllllllllllllllllllllllllllllllll                            Defendant-Appellant.
    ________________________
    Appeal from the United States District Court
    for the Southern District of Georgia
    ________________________
    (January 24, 2012)
    Before CARNES, WILSON and BLACK, Circuit Judges.
    PER CURIAM:
    Larry David Johnson appeals his 84-month sentence, imposed above the
    applicable guideline range, after he pled guilty to one count of distribution of
    cocaine base, in violation of 21 U.S.C. § 841(a)(1). On appeal, Johnson argues
    that in applying 18 U.S.C. § 3553(a)’s sentencing factors, the district court
    improperly relied on facts, such as Johnson’s criminal history, that the district
    court had already considered in determining Johnson’s guideline range. Johnson
    contends that the district court’s improper reliance on such facts resulted in an
    unreasonable upward variance.
    “To be upheld on appeal, a sentence must be both procedurally and
    substantively reasonable.” United States v. Rodriguez, 
    628 F.3d 1258
    , 1264 (11th
    Cir. 2010) (quotation omitted). We review the reasonableness of a sentence under
    a deferential abuse-of-discretion standard. Gall v. United States, 
    552 U.S. 38
    , 41
    (2007). “A district court abuses its discretion when it (1) fails to afford
    consideration to relevant factors that were due significant weight, (2) gives
    significant weight to an improper or 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) (quotation omitted).
    While Johnson does not clearly distinguish between procedural and
    substantive reasonableness, he appears to argue that his sentence is
    2
    (1) procedurally unreasonable because the district court improperly considered
    facts that had already been accounted for in the guideline range calculation; and
    (2) substantively unreasonable because none of § 3553(a)’s sentencing factors
    would have justified the upward variance had the district court not committed the
    procedural error of considering such improper facts.
    Foreclosing Johnson’s arguments, this Court has repeatedly “held that a
    district court can rely on factors in imposing a variance that it had already
    considered in imposing an enhancement.” 
    Rodriguez, 628 F.3d at 1264
    ; United
    States v. Amedeo, 
    487 F.3d 823
    , 833-34 (11th Cir. 2007). Accordingly, we affirm
    the 84-month sentence.
    AFFIRMED.
    3
    

Document Info

Docket Number: 11-12290

Citation Numbers: 452 F. App'x 927

Judges: Black, Carnes, Per Curiam, Wilson

Filed Date: 1/24/2012

Precedential Status: Non-Precedential

Modified Date: 8/5/2023