United States v. Brandon Johnson , 676 F. App'x 335 ( 2017 )

Case: 16-10233 Document: 00513870898 Page: 1 Date Filed: 02/10/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 16-10233
Fifth Circuit
FILED
Summary Calendar February 10, 2017
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff-Appellee
v.
BRANDON CHRISTOPHER JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:08-CR-226-1
Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM: *
Brandon Christopher Johnson appeals the 21-month sentence of
imprisonment imposed following the revocation of his supervised release for
his conviction for felon in possession of a firearm. Relying on our precedent,
the district court had enhanced Johnson’s original sentence for the underlying
offense due to a prior conviction for a crime of violence. See U.S.S.G.
§ 2K2.1(a)(4)(A); U.S.S.G. § 4B1.2; United States v. Harrimon, 568 F.3d 531,
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 16-10233 Document: 00513870898 Page: 2 Date Filed: 02/10/2017
No. 16-10233
537 (5th Cir. 2009). At his revocation hearing, Johnson requested a sentence
below the advisory policy range in light of Johnson v. United States, 135 S. Ct.
2551 (2015), which he contended overruled Harrimon. The district court
declined to do so, reasoning that, since Johnson was not retroactively
applicable to cases on collateral review, it would be unfair to give Johnson any
benefit when it could not afford the same to the defendant in Harrimon.
On appeal, Johnson contends that his revocation sentence must be
reversed because subsequent events reveal that the district court’s rationale
for denying his request for a lower sentence was based on legal and factual
error, i.e., Johnson has been held to apply retroactively to cases on collateral
review and the defendant in Harrimon has been resentenced in accordance
with Johnson. Johnson contends that the district court’s denial of his request
for a lower sentence constitutes procedural error mandating reversal of his
revocation sentence.
“Not all procedural errors require reversal; [we] may affirm the sentence
in spite of procedural error if that error is harmless--that is, if the error did not
affect the district court’s selection of the sentence imposed.” United States v.
Clay, 787 F.3d 328, 332 (5th Cir. 2015) (internal quotation marks and citation
omitted). The record reflects that the district court provided further reasons,
independent of Johnson, for denying Johnson’s request for a lower sentence.
Most notably, the district court commented that “[t]his is one of the worst
records that I’ve actually had of someone violating supervised release, given
the number involved.” Because Johnson showed remorse for his actions and
promised to change, the district court chose not to sentence him at the top of
the advisory range, but did believe that a sentence in the middle of the
recommended policy range was appropriate. This sentence is presumed
reasonable. See United States v. Lopez-Velasquez, 526 F.3d 804, 809 (5th Cir.
2
Case: 16-10233 Document: 00513870898 Page: 3 Date Filed: 02/10/2017
No. 16-10233
2008). Johnson makes no effort to rebut the presumption of reasonableness
afforded his revocation sentence. Accordingly, his sentence is AFFIRMED.
3