United States v. Johnson ( 2022 )

Case: 21-51150 Document: 00516547179 Page: 1 Date Filed: 11/16/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
November 16, 2022
No. 21-51150 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Kevin Lavern Johnson, II,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:21-CR-26-1
Before Richman, Chief Judge, and Elrod and Oldham, Circuit Judges.
Per Curiam:*
Kevin Lavern Johnson, II and his partner-in-crime stole four guns and
a safe. He was later arrested after leading police on a high-speed car chase
through residential neighborhoods. Johnson pleaded guilty to possessing a
stolen firearm and was sentenced to 110 months in prison. Johnson raises
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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three challenges to his sentence. The first two are meritless, but the third
necessitates a new sentencing hearing.
I.
A.
Kevin Lavern Johnson, II and Emilio Terrazas were smoking
marijuana with three women when one of the women noticed a firearm was
missing from the living room entertainment center. She confronted Johnson
and Terrazas. They responded by stealing three more firearms and a safe,
shoving the woman against the wall, and pointing a gun at her head while
commanding her to “shut up.” Two witnesses overheard the robbery, and
one chased Johnson and Terrazas as they fled to their car. But the witness
backed off when one of the robbers pointed a gun at him. The owner of the
apartment and the firearms—a soldier who was away from home for military
exercises—later identified the stolen guns as a Galil Ace AK-47, a Palmetto
State Armory AR-15, a Century Arms AK-47, and a Sig Sauer 1911 pistol.
Several photos appeared on social media of Johnson with the Galil.
Three weeks later—on February 8, 2021—Johnson and Terrazas
robbed a convenience store in Killeen, TX. The same day, an FBI task force
commenced an investigation and discovered that Terrazas was hiding out in
a camper. They set up surveillance in the area. And when Terrazas realized
he was surrounded by police, he called Johnson and asked Johnson to rescue
him. Johnson agreed. He borrowed his girlfriend’s SUV, picked up Terrazas,
and led agents on a high-speed chase of up to 90 mph through residential
neighborhoods. During the chase an agent identified Johnson in the back seat
of the SUV, holding the stolen Galil.
The SUV ultimately reached a dead end, jumped a curb, and stopped.
Then Johnson and Terrazas fled on foot. Terrazas was found hiding behind
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a shed in a residential area. Johnson escaped. He left the Galil behind an
unknown residence and paid a “stupid white boy” to retrieve it later.
When Johnson was later located and arrested, he initially denied
committing any robberies. But after being confronted with the social media
photos, he admitted to participating in the apartment robbery, picking up
Terrazas in his girlfriend’s SUV, and possessing the Galil during the high-
speed chase.
A Waco grand jury charged Johnson with possessing a stolen firearm,
the Galil, in violation of 18 U.S.C. § 922(j). Johnson pleaded guilty.
B.
The Presentence Report (“PSR”) determined that U.S.S.G. § 2K2.1
provided the offense level for a violation of 18 U.S.C. § 922(j). But because
the firearm Johnson possessed was used in connection with a robbery, the
PSR followed the cross-reference provision of § 2K2.1(c)(1) to the robbery
guideline, § 2B3.1. Consequently, it assigned Johnson a base offense level of
20 and assessed a total of 7 levels in enhancements under § 2B1.3(b). The
PSR also assessed a two-level enhancement for obstruction of justice under
§ 3C1.2 because Johnson recklessly created a substantial risk of death or
serious bodily injury while fleeing from law enforcement. With a three-level
reduction for acceptance of responsibility, Johnson’s total offense level was
26. And the PSR assigned him to criminal history category II. This created
an advisory guidelines range of 70–87 months’ imprisonment.
Johnson objected to the PSR calculations. First, he asserted that the
cross-reference to the robbery guideline should not apply because there was
no evidence that he used the Galil in connection with a robbery. Second,
Johnson challenged the two-level enhancement for reckless endangerment.
He asserted that because he was merely a passenger in the fleeing SUV, he
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couldn’t have created a substantial risk of harm to anyone. The district court
overruled both objections.
At sentencing, the court adopted the findings and conclusions in the
PSR without change, advised Johnson that it was considering an upward
variance, and continued the hearing to give Johnson time to prepare. Prior to
the reconvened hearing, Johnson filed a memorandum in which he made
various arguments in mitigation of his sentence: the absence of his father
during his childhood, his youth at the time of the offense, his experience
being sexually molested as a child, his bipolar disorder and other mental
health issues, his good grades in high school, and his close family
connections. He attached several letters from family members and a former
teacher in support of his memo.
At the reconvened sentencing hearing, Johnson’s attorney presented
testimony from Johnson’s father but made no arguments of his own. The
court concluded that an upward variance was appropriate. Without affording
Johnson the opportunity to allocute, the court sentenced Johnson to 110
months’ imprisonment followed by three years of supervised release.
Johnson timely appealed, challenging his sentence based on the
court’s guidelines calculations and violation of his allocution right. We have
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. Because the
guidelines challenges were preserved, “we review the district court’s
interpretation and application of the guidelines de novo and its factual
findings . . . for clear error.” United States v. Perryman, 965 F.3d 424, 426
(5th Cir. 2020) (quotation omitted). “A factual finding is not clearly
erroneous if it is plausible in light of the record as a whole,” and we find clear
error “only if a review of the record results in a definite and firm conviction
that a mistake has been committed.” United States v. Zuniga, 720 F.3d 587,
590 (5th Cir. 2013) (quotation omitted). Plain-error review applies to the
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unpreserved allocution violation. United States v. Brooker, 858 F.3d 983, 985
(5th Cir. 2017).
II.
Johnson first argues that § 2K2.1(c)(1)’s cross-reference to the
robbery guideline should not apply. We disagree.
The applicable offense level for possession of a stolen firearm is found
at § 2K2.1. But § 2K2.1(c)(1) instructs that a cross-reference to the guideline
for a different offense should instead apply if the cross-reference increases
the offense level and “the defendant used or possessed any firearm or
ammunition cited in the offense of conviction in connection with the
commission or attempted commission of another offense[.]” U.S.S.G.
§ 2K2.1(c)(1). The phrase “in connection with” is defined as “facilitated, or
had the potential of facilitating.” U.S.S.G. § 2K2.1, cmt., n.14(A). Thus, the
cross-reference is applicable if the defendant used or possessed the stolen
firearm and such use or possession facilitated, or had the potential to
facilitate, the commission or attempted commission of another offense.
The district court found that Johnson’s possession of the stolen Galil
during the apartment robbery facilitated, or had the potential of facilitating,
the commission of the apartment robbery. Johnson asserts this was clear error
because (1) he could not use a gun he had not yet stolen to facilitate the same
robbery in which he stole it, and (2) there is no evidence that he “pointed
[the Galil] at the head of one of the females.” He urges that for the
§ 2K1.2(c)(1) cross-reference to apply, his possession of the stolen firearm
had to precede, and be independent from, the cross-referenced robbery.
The Government counters with United States v. Armstead, 114 F.3d
505 (5th Cir. 1997). There, the Armsteads were convicted under 18 U.S.C.
§ 922(u) for stealing firearms from a licensed firearms dealer. Id. at 505. We
upheld the district court’s application of the sentencing enhancement under
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§ 2K2.1(b)(5), 1 which provided a four-level increase if the defendant “used
or possessed” the stolen firearms “in connection with another felony
offense.” Ibid. Even though the defendants came into possession of the
firearms during a burglary, we nevertheless held that the burglary was
“another felony offense” that occurred “in connection with” the
defendants’ firearm possession. Id. at 510–13.
It is true that Armstead did not involve the specific cross-reference
provision at issue here, § 2K2.1(c)(1). But the operative text in the two cross-
references is similar. Cf. United States v. Mitchell, 166 F.3d 748, 756 (5th Cir.
1999) (analyzing the similarity and holding § 2K2.1(c)(1) “mandates a closer
relationship between the firearm and the other offense than that required for
§ 2K2.1(b)(5)” (quotation omitted)). And the application note to § 2K2.1
explicitly says that § 2K2.1(c)(1) applies
. . . in a case in which a defendant who, during the course of a
burglary, finds and takes a firearm, even if the defendant did
not engage in any other conduct with that firearm during the
course of the burglary . . . because the presence of the firearm
has the potential of facilitating . . . another offense.
U.S.S.G. § 2K2.1, cmt., n.14(B).
Of course, Application Note 14(B) discusses burglary. But Johnson
offers no compelling reason—or any argument at all—why the same logic
doesn’t apply to the robbery context. If anything, this case provides a clear
example of how a stolen gun can be used to facilitate the same robbery in
which it was stolen: After Johnson and Terrazas stole and possessed all four
firearms, they then stole a safe, shoved one of the women against the wall
while pointing a gun at her head, and fended off the witness who tried to
1
The identical provision was later moved to § 2K2.1(b)(6).
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thwart their getaway by threatening him with a gun. The Galil thus clearly
facilitated, or had the potential of facilitating, the apartment robbery. And
that is all the Guidelines require.
III.
Next, Johnson argues that the § 3C1.2 obstruction enhancement was
improper because he was merely a backseat passenger during the high-speed
chase of up to 90 mph through residential neighborhoods. Section 3C1.2
provides for a two-level increase in a defendant’s offense level if, in fleeing
from a law enforcement officer, “the defendant recklessly created a
substantial risk of death or serious bodily injury to another person.” U.S.S.G.
§ 3C1.2. “[T]he flight [must be] related to the offense the defendant is
convicted of violating.” United States v. Gould, 529 F.3d 274, 276 (5th Cir.
2008). And the Guideline commentary clarifies that a “defendant is
accountable for [his] own conduct and for conduct that the defendant aided
or abetted, counseled, commanded, induced, procured, or willfully caused.”
U.S.S.G. § 3C1.2, cmt., n.5.
Johnson does not dispute that Terrazas’s actions would qualify for the
obstruction enhancement. That is because “leading police officers on a high-
speed chase . . . by itself create[s] a substantial risk of serious injury.” United
States v. Lee, 989 F.2d 180, 183 (5th Cir. 1993). Likewise, because Johnson
possessed the Galil during that chase, there is a sufficient nexus between the
flight and his underlying conviction for possession of the stolen Galil. See
United States v. Witt, 187 F. App’x 406, 407–08 (5th Cir. 2006) (per curiam)
(citing United States v. Southerland, 405 F.3d 263, 268 (5th Cir. 2005)).
Instead, Johnson argues that a mere backseat passenger does not
deserve the enhancement. See United States v. Iracheta-Garces, 2001 WL
1485742 (5th Cir. Nov. 7, 2001) (per curiam) (so holding). But Johnson was
no mere backseat passenger. Instead, Johnson’s involvement in the chase is
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closer to United States v. Terrazas, 815 F. App’x 767, 770 (5th Cir. 2020) (per
curiam), where we upheld the district court’s finding of reckless
endangerment for a passenger in a high-speed chase who ignored the driver’s
repeated instructions to get out of the vehicle and who fled on foot when the
high-speed pursuit ended—indicating that he was an “active participant
throughout the pursuit” and “not merely a passenger.” Or United States v.
Lima-Rivero, 971 F.3d 518, 520 n.1 (5th Cir. 2020), where we determined that
the enhancement was appropriate because the defendant continued the chase
on foot and hid from police, thereby aiding and abetting his coconspirator’s
flight. Johnson agreed to pick up Terrazas to help his partner-in-crime avoid
arrest, provided the getaway car, held a stolen firearm in the car during the
high-speed chase, continued to flee on foot after the car chase ended, hid his
weapon, and successfully evaded arrest. Thus, the district court’s reckless-
endangerment finding was not clearly erroneous, and its application of the
Guidelines was manifestly correct.
IV.
Finally, Johnson argues that the district court committed reversible
error by denying him the opportunity to allocute at sentencing. The parties
agree that this claim is reviewable under the familiar four-part plain-error
standard. See Puckett v. United States, 556 U.S. 129 (2009). The parties also
agree that Johnson meets the first three prongs. The only dispute is on the
fourth.
The fourth plain-error prong asks whether the “failure to correct the
error would seriously affect the fairness, integrity or public reputation of
judicial proceedings.” United States v. Sanchez-Hernandez, 931 F.3d 408, 410
(5th Cir. 2019) (quotation omitted). We have held that, “we will ordinarily
remand for resentencing” where a district court commits plain error by
denying the right to allocution. United States v. Chavez-Perez, 844 F.3d 540,
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543 (5th Cir. 2016); see also Reyna, 358 F.3d at 352–53 (similar); United States
v. Avila-Cortez, 582 F.3d 602, 606 (5th Cir. 2009) (similar). That said,
allocution errors aren’t “fundamental defect[s] that inherently result[] in a
complete miscarriage of justice,” United States v. Magwood, 445 F.3d 826,
830 (5th Cir. 2006) (quotation omitted), so reversal is “not automatic,”
Avila-Cortez, 582 F.3d at 604. Instead, we “conduct a thorough review of the
record” to determine whether to exercise our discretion to correct the error.
Reyna, 358 F.3d at 353; see also Avila-Cortez, 582 F.3d at 605 (“[T]his is a
highly fact-specific inquiry.”) “Among the factors we consider are [A]
whether the defendant had a prior opportunity to allocute, [B] whether the
defendant has explained what exactly he or she would have said during
allocution that might mitigate the sentence, and [C] whether defense counsel
offered mitigating arguments on behalf of the defendant.” Aguirre-Romero,
680 F. App’x at 296 (quotation omitted); see also Palacios, 844 F.3d at 532
(outlining the same factors).
A.
We first consider whether Johnson had earlier opportunities to
allocute. In Reyna, for example, the defendant had two allocution
opportunities in prior proceedings before the same judge. 358 F.3d at 352–53.
And at the second proceeding, the judge warned Reyna that he would
automatically receive a one-year sentence if he ever breached the supervised
release. Ibid. Reyna breached his terms of release. And the court did exactly
what it had warned it would but denied Reyna an opportunity to allocute at
the final hearing. Based on the “unusual” posture of the case, we decided
that the error didn’t seriously affect the fairness, integrity, or public
reputation of judicial proceedings. Id. at 353. By contrast, where the
defendant did not have earlier opportunities to allocate, the first factor
generally favors resentencing. See United States v. Lister, 229 F. App’x 334
(5th Cir. 2007); Figueroa-Coello, 920 F.3d at 265–66 (considering whether
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defendant had “several prior clear chances to allocute”); Aguirre-Romero,
680 F. App’x at 296 (same).
The only words Johnson uttered during the entire reconvened hearing
were “Yes, sir”—in response to the district court’s questions whether
Johnson understood why he was there and whether he was prepared to
proceed. Cf. Avila-Cortez, 582 F. 3d at 605 (reversing where the only time
defendant spoke was when he twice said “Yes, sir”). This is obviously a stark
difference from the situation in Reyna. And it weighs in favor of resentencing.
See, e.g., Palacios, 844 F.3d at 530, 532 (“[T]he district court allowed
[defendant] the opportunity to speak with regard to acceptance of
responsibility,” thus going beyond “barely addressing the defendant at all.”
(quotation omitted)); Aguirre-Romero, 680 F. App’x at 294 (“[Defendant]
engaged in a colloquy with the court regarding his convictions for injury to a
child, representing that he had the support of his family, he did not hurt his
daughter, he believed he was pleading guilty only to endangering a child, the
other people living with them were responsible for his daughter’s injuries,
and he was a loving father.”); cf. Avila-Cortez, 582 F.3d at 607 (“[Defendant]
was never given any opportunity whatsoever to speak to the court, which is
unlike any of the cases in which we have declined to exercise our discretion
to correct the error.”).
B.
Next we consider what evidence the defendant would have included
in his allocution. As we have said elsewhere, defendants are ordinarily
required “to show some objective basis that would have moved the trial court
to grant a lower sentence.” Chavez-Perez, 844 F.3d at 545 (quotation
omitted). The proposed allocution need not be particularly “lengthy” or
“extensive,” but it must be “sufficiently detailed and specific.” Figueroa-
Coello, 920 F.3d at 266–67 (comparing defendant’s proposed allocution with
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the lengthy allocution in Palacios and the less extensive allocution in Avila-
Cortez—both of which were sufficient to trigger remand); cf. United States v.
Neal, 212 F. App’x 328, 332 (5th Cir. 2007) (declining to correct the error
where defendant asserted “conclusionally he was not given an opportunity
to discuss his ‘family, background, his conduct in prison, his activities during
his months of successful supervised release, or other areas’”); Chavez-Perez,
844 F.3d at 545 (similarly conclusory). In Magwood, for example, the
defendant did “not furnish any information about what he would have
allocuted to that might have mitigated his sentence,” so we affirmed despite
the denial of allocution. 445 F.3d at 830 (emphasis added).
Johnson, unlike Magwood, provides a detailed and specific
description of the mitigating facts he would have offered had he been afforded
the opportunity to speak. Johnson explains in his brief that he would have
expressed remorse; explained his childhood trauma, mental health issues
(including bipolar disorder, ADHD, and oppositional defiant disorder), and
intent to return to psychiatric care (which had helped in the past);
underscored his good grades and family support; and articulated his plan to
finish high school, attend college or trade school, and find a job in which he
could help others. Johnson’s proposed allocution was supported by a five-
page sentencing memorandum and six letters from family members and a
former teacher. Particularly important are Johnson’s remorse, desire to seek
psychiatric care, and plan to return to school. See Figueroa-Coello, 920 F.3d
at 268 (“We have previously recognized statements of remorse and sincere
willingness to change as a possible ‘objective basis’ for lessening a
sentence.”). Thus, Johnson’s proposed allocution is adequately specific and
“constitutes ‘some objective basis’ that could have influenced [his]
sentence.” Aguirre-Romero, 680 F. App’x at 298 (quoting Magwood, 445 F.3d
at 830).
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C.
Finally, Johnson’s attorney made no mitigating arguments at
sentencing, and Johnson’s father only spoke about a small subset of
Johnson’s proposed mitigation considerations. “The right of allocution
exists because counsel may not be able to provide the same quantity or quality
of mitigating evidence as the defendant at sentencing.” Figueroa-Coello, 920
F.3d at 268 (quotation omitted); see Green v. United States, 365 U.S. 301, 304
(1961) (“The most persuasive counsel may not be able to speak for a
defendant as the defendant might, with halting eloquence, speak for
himself.”). That said, whether counsel made mitigating arguments at
sentencing is still relevant to whether an uncorrected allocution error would
seriously affect the fairness, integrity, or public reputation of judicial
proceedings. In many of our allocution cases, counsel spoke in favor of
mitigation during the sentencing hearing, 2 and we evaluated whether the
defendant’s proposed allocution would have added something over and
above what their attorney had already presented. E.g., Chavez-Perez, 844 F.3d
at 545 (“Most of the arguments Chavez-Perez claims he would have made
were raised either by him or defense counsel at the sentencing hearing, and
2
See, e.g., Magwood, 445 F.3d at 830 (“The district court heard arguments from
Magwood’s counsel, who put forward mitigating factors[.]”); Avila-Cortez, 582 F.3d at 606(“During Avila-Cortez’s sentencing, his counsel gave general mitigation arguments in an
attempt to secure a sentence at the low end of the Guidelines range.”); Palacios, 844 F.3d
at 533 (“Palacios’s defense counsel made a few, somewhat cursory, mitigating statements
on Palacios’s behalf[.]”); Chavez-Perez, 844 F.3d at 542 (“Defense counsel . . . offered
numerous reasons for a low-end Guidelines sentence.”); Aguirre-Romero, 680 F. App’x at
296 (“[C]ounsel did put forward several arguments on Aguirre-Romero’s behalf.”);
Figueroa-Coello, 920 F.3d at 263–64 (counsel offered various mitigation arguments and
“ask[ed] for a sentence as lenient as possible”); United States v. Villegas, 2022 WL
2073831, at *2 (5th Cir. June 9, 2022) (“Most of the arguments Villegas claims he would
have made were raised either by those letters or defense counsel at the sentencing hearing,
and Villegas does not provide any new mitigating information in his appellate brief.”
(quotation omitted)).
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Chavez-Perez does not provide any new mitigating information in his
appellate brief.”). When defense counsel makes no mitigating arguments on
behalf of the defendant, the defendant’s allocution is all the more important.
Here, Johnson’s counsel made no argument in mitigation; made no
reference to the mitigation facts included in the sentencing memorandum;
and, other than presenting the testimony of Johnson’s father, did nothing to
oppose the court’s proposed upward variance. Thus, any mitigation
argument Johnson might have made during allocution would necessarily have
been more fulsome than that provided by counsel. See Palacios, 844 F.3d at
532 (“[Defendant’s proposed] statement is specific, thorough, and gives
detail, expression, and expansion to the statements provided by defense
counsel.” (quotation omitted)).
The Government counters that Johnson’s arguments were
nevertheless before the district court via the sentencing memorandum, the
PSR, and his father’s presentation. That might have made a difference had
the district court demonstrated it read and considered the memorandum.
Compare Palacios, 844 F.3d at 533 (“[A]s in Avila-Cortez, the record in this
case does not indicate that the district court contemplated, or subsequently
rejected, defense counsel’s mitigating statements.”), with Villegas, 2022 WL
2073831, at *2 (“[M]ost of the arguments Villegas claims he would have
made were raised either by those letters or defense counsel . . . , [and] the
record shows that the sentencing judge read the letters.” (quotation
omitted)); see also Figueroa-Coello, 920 F.3d at 267 (“[I]tems referenced in
the PSR but not referenced by counsel will be treated as ‘specific facts or
additional details’ that may persuade the trial court, and thus may constitute
grounds for remand.”). The district court did not do so, however, so a new
sentencing hearing is warranted.
VACATED and REMANDED.
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