USA v. Larry David Johnson, aka Pie

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 24, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-12290
Non-Argument Calendar
________________________
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:

-- 1 of 3 --

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

-- 2 of 3 --

(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

-- 3 of 3 --