FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

DEC 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 08-13237

Non-Argument Calendar

________________________

D. C. Docket No. 01-00203-CR-CB

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE B. JOHNSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court

for the Southern District of Alabama

_________________________

(December 15, 2008)

Before TJOFLAT, DUBINA and FAY, Circuit Judges.

PER CURIAM:
Willie B. Johnson appeals his convictions and 260-month total sentence,

imposed following his conviction on 1 count of conspiracy to possess with intent

to distribute cocaine and crack cocaine, in violation of 21 U.S.C. § 846, and 3

counts of possession with intent to distribute cocaine and crack cocaine, in

violation of 21 U.S.C. § 841(a)(1). On appeal, Johnson first argues that the district

court erred by denying his motion for a new trial based on newly discovered

evidence without conducting an evidentiary hearing because such a hearing would

have impacted the credibility of prosecution witnesses’ testimony as to the amount

of drugs for which he was responsible. Next, Johnson argues that he was

sentenced under an unconstitutional mandatory guidelines system and that his

sentence was greater than necessary to achieve the statutory purposes of

sentencing. He argues that the district court failed to consider mitigating factors

that militated in favor of a below-guideline sentence, including testimony

regarding the amount of drugs and alleged collusion of prosecution witnesses, as

well as evidence of his background and his role in the community, and he argues

that the court “utilized an improper and unproved sentencing enhancement” that

resulted in an unconstitutional sentence. For the reasons set forth below, we

affirm.

I.

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In a superseding indictment, a federal grand jury charged Johnson with

conspiracy to possess with intent to distribute more than 5 kilograms of cocaine

and more than 50 grams of crack cocaine from 1991 to July 3, 2001 (“Count 1”);

possession with intent to distribute more than 100 grams of cocaine on or about

August 2, 1998 (“Count 2”); possession with intent to distribute approximately 9

ounces of cocaine in June 1999 (“Count 3”); and possession with intent to

distribute approximately 9 ounces of crack cocaine in the summer of 2000 (“Count

4”).

According to the presentence investigation report (“PSI”), in the course of

investigating Frankie Miller, a drug dealer in Mobile, Alabama, law enforcement

received incriminating information regarding Johnson, a lifelong friend and

associate of Miller’s. At trial, the government called several of Johnson’s drug

associates, who testified as to their dealings with Johnson. Both parties began by

stipulating that Regina Chambers (“Regina”) was arrested on October 4, 1991, and

found to have 987.7 grams of crack cocaine in her vehicle. According to the

stipulation, Regina would testify that she was going to Mobile, Alabama to deliver

the car containing the crack cocaine to Orlando Kemp. The following witnesses

testified as follows.

Kemp testified that, in October 1991, he received a “large amount” of cash

from Johnson. He was going to give the cash to Regina, who was his cousin, to

3
deliver to Mobile. Kemp was to receive $1,000 for delivering the money to

Regina.

Terrance Chambers (“Chambers”) testified that he previously had been

convicted of drug charges and had entered into an agreement to cooperate with the

United States in exchange for a sentence reduction. He knew Johnson and Miller

growing up. In October 1991, he agreed to send a kilogram of crack cocaine to

Johnson. He asked Regina to take the package to Kemp for Johnson, and Johnson

was to pay $25,000 for the kilogram of crack cocaine. Once Johnson gave the

money to Kemp, Chambers put the crack cocaine in the trunk of Regina’s rental

vehicle and sent her down to Mobile. Regina was stopped for speeding and

arrested, and the crack cocaine was seized. He also testified that, at a Mardi Gras

parade in 1995 or 1996, he saw Johnson give Miller a “handful of money.” On

cross-examination, Chambers testified that, after the one deal, he never had other

dealings with Johnson.

Dewit Germaine Harold Lambert III, who went by the name “Fred,” testified

that he had been in custody since 1999 for drug crimes, and he currently had a

Rule 35 motion pending to get a sentence reduction for cooperating with the

government. He knew Chambers and Johnson, and Miller was his uncle. In the

early 1990’s, he learned that Miller was dealing drugs out of Atlanta, and he began

to get crack cocaine for Miller. Sometimes, he would buy drugs from Johnson and

4
sell those drugs before paying Miller, and he had purchased four-and-one-half

ounces of powder cocaine and crack cocaine, a “big 8,” from Johnson. He twice

saw Miller give Johnson powder cocaine, hand to hand. On cross-examination,

Lambert testified that he had written and signed a letter admitting that he testified

falsely or provided false statements against two other individuals in a different

proceeding.

Arthur Patterson testified that, prior to 1995, he was paid to traffic cocaine

from Atlanta to Mobile. Miller supplied him with approximately 12 to 14

kilograms of cocaine and crack cocaine from 1992 to 1995. He saw Johnson with

Miller in 1992, and he saw Johnson take nine ounces of powder cocaine from

Miller.

Brannon Leverette testified that he began to sell drugs in 1993, and he got

the drugs from Johnson. He estimated that, between 1993 and 2001, he received

approximately 120 or 130 ounces of cocaine and about 2 or 3 ounces of crack

cocaine from Johnson.

Lashawn Moran testified that, in the summer of 2000, he received nine

ounces of cocaine from Johnson, four of which he bought and five of which

Johnson fronted to him.

5
Antalon Stevenson testified that, from 1990 to 1999, he purchased

approximately half a kilogram of powder cocaine and about a kilogram of crack

cocaine from Johnson.

Brent Lewis testified that, on one occasion, he purchased a quarter of an

ounce of powder cocaine from Johnson for $275. He also testified that, in June

1999, he purchased 9 ounces of powder cocaine from Johnson for $5,500.

Avery Mills testified that he bought crack cocaine from Johnson about 20 or

25 times from 1993 or 1994 to 1998. He estimated that, from 1993 or 1994 to

1998, he received over 100 ounces of crack cocaine from Johnson.

Zackary Felippi Watkins testified that he bought a “couple of ounces” of

crack from Johnson in 1994. He also bought cocaine from Johnson for a couple of

years beginning in 1998, from one ounce to a kilogram. On cross-examination, he

testified that he bought a kilogram of powder cocaine on more than one occasion

and bought crack cocaine a couple of times.

Amos Daniels testified that, on 1 occasion, he purchased 3 ounces of crack

cocaine from Johnson for $850 per ounce. On another occasion, he bought 5

ounces of crack cocaine from Johnson for $800 an ounce.

Robert Oakley, testified that he had known Johnson since 1993 or 1994, and

he had purchased about an ounce of powder cocaine per week from Johnson up

6
until 1996. He estimated that he bought an ounce per week of powder cocaine

from 1993 to 1996.

Nathaniel Agee testified that he met Johnson in the middle of 2000 to

purchase nine ounces of crack cocaine. He purchased 9 ounces of crack cocaine

for $7,500 from Johnson on 4 or 5 different occasions.

The defense called various witnesses to testify on Johnson’s behalf. At the

end of the trial, the jury found Johnson guilty as charged, and specifically found

that, as to Count 1, the object of the conspiracy was over 5 kilograms of cocaine

and over 50 grams of crack cocaine. As to the remaining counts, the jury found

that the amount of crack cocaine Johnson possessed with the intent to distribute

was 50 grams or more.

A probation officer prepared the PSI and, after grouping the counts together

pursuant to U.S.S.G. § 3D1.2(d), determined that Johnson’s base offense level was

38, pursuant to U.S.S.G. § 2D1.1(c)(1), because he was responsible for 1,500

grams of crack cocaine and 5,000 grams of powder cocaine. Johnson received a

3-level increase for being a manager or supervisor, pursuant to U.S.S.G.

§ 3B1.1(b), which yielded a total offense level of 41. Johnson had zero criminal

history points, which placed him in a criminal history category of I. Based on his

total offense level of 41 and his criminal history category of I, Johnson’s guideline

range was 324 to 405 months’ imprisonment. Johnson objected to his base offense

7
level calculation, arguing that the evidence did not support the quantity of drugs

for which he was held accountable. Johnson also objected to the enhancement for

being a manager or supervisor in the criminal organization.

In September 2002, Johnson filed a “Motion For Dismissal/New Trial,”

arguing that a letter from an inmate that the government had faxed to Johnson’s

counsel on August 6, 2002, constituted newly discovered evidence warranting a

dismissal of all charges against him or, in the alternative, a new trial. Johnson also

requested an evidentiary hearing. Johnson filed a brief in support of his motion,

arguing that the inmate’s letter satisfied the four criteria to warrant a new trial.

Johnson attached the alleged newly discovered evidence, which was a

handwritten letter from James Musta, an inmate housed at the Baldwin County Jail

since April 12, 2002. In the letter, Musta set out the following. An incident

occurred where “Art Patterson, Terrance Chambers (Suge), and Craig Mimms”

entered his cell and began talking about a previous court case in which they had

testified. The individuals “decided to get together and testify in another case,” and

they began talking about “a guy in Mobile” named Willie Johnson. “They coached

each other on the story about” Johnson. Only “Suge” and a friend of his named

“Fred” seemed to “really know the guy,” and they would pass notes under the door

and talk through the door daily. “They would sit around and discuss what to say to

the Feds in order to get time cuts.” It seemed that Art Patterson knew “nothing”

8
about the case and had to be “schooled by Suge and Fred.” The talks occurred in

Musta’s cell on a daily basis. The letter continued, “Chambers and Fred would tell

what they heard on the case against Willie Johnson to Art Patterson and the others.

Then they would all get together to get their stories straight and then call the Feds

on the phone or Art would write them or the courts.”

The district court denied Johnson’s motion for dismissal or motion for a new

trial. The court concluded that any evidence in Musta’s letter was merely

impeaching evidence and that, even if the witnesses were coaching each other, the

allegation went to the weight and credibility of their testimony. Because the

evidence was merely impeaching, the court concluded that a new trial was

unnecessary.

At sentencing in December 2002, counsel for Johnson indicated that he

could not produce Musta because Musta was incarcerated and they could not come

up with the deposit to have him testify. Counsel indicated that Musta’s live

testimony would have impacted the credibility and reliability of Chambers’s,

Lambert’s, and Patterson’s trial testimony, particularly as it related to the amount

of drugs. The court found that Musta’s letter was not admissible for sentencing

purposes. As to the enhancement for being a manager or supervisor, the court

granted Johnson’s objection and denied the enhancement.

9
The court then set out that Johnson’s total offense level was 38 and his

criminal history category was I, which resulted in a guideline range of 235 to 293

months’ imprisonment. The court provided that a mid-range sentence was

appropriate, as it was a substantial amount of imprisonment. The court sentenced

Johnson to 260 months’ imprisonment as to Counts 1 and 4, and 240 months’

imprisonment as to Counts 2 and 3, all to run concurrent. The court stated, “I have

imposed this sentence at the mid-range, because I believe, based on all the

evidence, the facts and circumstances, that sentence meets the sentencing objective

of punishment, deterrence and incapacitation.” The court asked if either party had

any additional objections to its findings, its conclusions, or the manner in which

the sentence was imposed, and neither party offered any new objections.

Johnson filed a timely notice of appeal, but we dismissed his appeal because

he failed to file a brief and record excerpts in a timely fashion. Johnson then filed

a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255,

arguing, inter alia, that his counsel had been ineffective during the appellate review

phase of his case. In 2008, the district court granted his § 2255 motion, finding

that his counsel had been ineffective for failing to prosecute the appeal. The court

vacated the original judgment and imposed a sentence identical to the original

sentence to enable him to file a new notice of appeal, in accordance with the

10
procedures set out in United States v. Phillips, 225 F.3d 1198 (11th Cir. 2000).

Johnson now appeals.

II.

A. Denial of Motion for a New Trial without an Evidentiary Hearing

We review a district court’s denial of a motion for a new trial based on

newly discovered evidence for an abuse of discretion. United States v. Vallejo,

297 F.3d 1154, 1163 (11th Cir. 2002). Likewise, we review a district court’s

decision concerning whether to hold an evidentiary hearing for an abuse of

discretion. United States v. Massey, 89 F.3d 1433, 1443 (11th Cir. 1996).

Federal Rule of Criminal Procedure 33 provides that a “court may vacate

any judgment and grant a new trial if the interest of justice so requires.”

Fed.R.Crim.P. 33(a).

To succeed on a motion for new trial based on newly discovered

evidence, the movant must establish that (1) the evidence was

discovered after trial, (2) the failure of the defendant to discover the

evidence was not due to a lack of due diligence, (3) the evidence is not

merely cumulative or impeaching, (4) the evidence is material to

issues before the court, and (5) the evidence is such that a new trial

would probably produce a different result.

United States v. Jernigan, 341 F.3d 1273, 1287 (11th Cir. 2003) (quotation

omitted). “Failure to meet any one of these elements will defeat a motion for a

new trial.” United States v. Starrett, 55 F.3d 1525, 1554 (11th Cir. 1995).

11
“Motions for a new trial based on newly discovered evidence are highly disfavored

in the Eleventh Circuit and should be granted only with great caution. Indeed, the

defendant bears the burden of justifying a new trial.” United States v. Campa, 459

F.3d 1121, 1151 (11th Cir. 2006) (en banc) (quotation omitted). “Newly

discovered impeaching evidence is insufficient to warrant a new trial.” United

States v. Champion, 813 F.2d 1154, 1171 (11th Cir. 1987).

A defendant is not entitled to an evidentiary hearing on a motion for a new

trial if “the acumen gained by a trial judge over the course of the proceedings

[made him] well qualified to rule on the [evidence] without a hearing.” United

States v. Schlei, 122 F.3d 944, 994 (11th Cir. 1997) (quotation omitted). A motion

for a new trial “may ordinarily be decided upon affidavits without an evidentiary

hearing,” and “[w]here evidentiary hearings are ordered, it is because of certain

unique situations typically involving allegations of jury tampering, prosecutorial

misconduct, or third party confession.” United States v. Hamilton, 559 F.2d 1370,

1373 (5th Cir. 1977).

Here, the district court denied Johnson’s motion for a new trial based on its

conclusion that any evidence in the Musta letter was merely impeaching and that

the allegation that witnesses coached each other went to the weight and credibility

of their testimony. The Musta letter lists Patterson, Chambers, Craig Mimms, and

“Fred.” As an initial matter, no one named Craig Mimms testified at Johnson’s

12
trial, and the only person who went by the name “Fred” was Lambert. The Musta

letter provides that these individuals “coached” each other and that Patterson knew

“nothing” about the case and had to be “schooled” by Chambers and Fred. As a

suggestion that these witnesses did not offer truthful testimony at trial, the letter

goes to their credibility and could only be used on cross-examination for

impeachment purposes. Therefore, the district court correctly concluded that the

evidence was merely impeaching and did not warrant a new trial. See Jernigan,

341 F.3d at 1287 (requiring a movant to establish that the newly discovered

evidence is not merely impeaching); United States v. Diaz, 190 F.3d 1247, 1255

(11th Cir. 1999) (holding that the newly discovered evidence – a sworn statement

by a co-conspirator that contradicted his testimony at trial – was relevant solely for

impeaching his credibility and would not probably produce an acquittal); United

States v. Noriega, 117 F.3d 1206, 1221-22 (11th Cir. 1997) (holding that the

district court did not abuse its discretion in denying a motion for a new trial

because “[e]vidence regarding the bribing of a witness, although disturbing, clearly

does constitute impeachment material”).

Furthermore, Johnson cannot show that the evidence would likely have

produced a different result at trial because, even discrediting the testimony of

Chambers, Patterson, and Lambert, the government presented ample evidence to

support the jury verdict. With respect to Count 1, the testimony established that

13
Johnson conspired to possess more than 5 kilograms of powder cocaine, as

Leverette testified that he received approximately 120 ounces (over 3 kilograms) of

powder cocaine from Johnson; Watkins testified that he received at least 1

kilogram of cocaine from Johnson; and Oakley testified that he received an ounce

of powder cocaine a week for 3 years from Johnson. Even taking only these three

witnesses, the amount of over five kilograms of cocaine is established. The

testimony also amply supports that Johnson possessed 50 grams of crack cocaine,

as Leverette’s testimony alone that he received 2 ounces (over 50 grams) of crack

cocaine, supports the finding. As to Count 2, Leverette testified that, in early

August 1998, he was arrested in possession of 4 ounces (over 100 grams) of

powder cocaine which he had gotten from Johnson, which the jury could find

established that Johnson was in possession of over 100 grams of powder cocaine in

early August 1998. As to Count 3, Lewis testified that, in June 1999, he purchased

nine ounces of powder cocaine from Johnson. As to Count 4, Agee testified that

he met Johnson in the middle of 2000 to purchase nine ounces of crack cocaine

from him. Because the jury verdict was supported by the evidence at trial, even

discounting the testimony of the individuals named in the Musta letter, Johnson

cannot show that the letter would probably have produced a different outcome at

trial. See Jernigan, 341 F.3d at 1287; Starrett, 55 F.3d at 1554 (holding that an

affidavit by a former cellmate of a government witness, which stated that the

14
witness intended to perjure himself, would not have produced a different outcome

at trial because there was ample evidence apart from the witness’s testimony to

support the convictions).

Because Johnson fails at least two of the five requirements to warrant a new

trial based on newly discovered evidence, and the failure to meet any one

requirement is fatal to a motion for a new trial, the district court did not abuse its

discretion by denying his motion for a new trial. See Starrett, 55 F.3d at 1554.

Furthermore, because the court did not abuse its discretion in denying Johnson’s

motion for a new trial on its merits, the court also did not abuse its discretion in

refusing to hold an evidentiary hearing on the motion. See United States v.

Slocum, 708 F.2d 587, 600 (11th Cir. 1983) (holding that, because we agreed with

the decision to deny a motion for a new trial on the merits, the district court did not

abuse its discretion in denying the motion without an evidentiary hearing).

Our decision in United States v. Espinosa-Hernandez, 918 F.2d 911 (11th

Cir. 1990), does not change this outcome. In Espinosa-Hernandez, we reversed a

district court’s denial of Jairo Espinosa-Hernandez’s (“Espinosa”) motion for a

new trial based on newly discovered evidence when the court did not hold an

evidentiary hearing. Id. at 912, 914. In that case, a Customs Service Agent, David

Urso (“Urso”), was the case agent in charge of the sting operation that led to

Espinosa being indicted. Id. at 912. Urso was the only witness to testify before the

15
grand jury, and it was undisputed that he had made false statements to the grand

jury and in his affidavit for the criminal complaint. Id. at 913. At trial, Espinosa

argued that the testimony of a confidential informant (“CI”) was essential to his

defense. Id. The CI was under Urso’s supervision, and based on Urso’s

representation at trial, the court found that the CI was unable to testify. Id. After

Espinosa’s conviction, he learned that Urso had been indicted for allegedly making

false statements on his federal job application, and Espinosa alleged that Urso was

under investigation for his participation in a different CI’s escape from federal

custody. Id. The district court denied Espinosa’s motion for a new trial,

concluding that the newly discovered evidence would be purely impeaching and

that it would not likely lead to a different result at trial. Id.

As to the finding that the evidence was merely impeaching, we concluded

that discovery or an evidentiary hearing could reveal that Urso committed perjury

in Espinosa’s trial or a related proceeding. Id. at 913-14. We pointed out that

Espinosa alleged that Urso was under investigation for helping a CI under his

supervision to escape from federal custody, and that Espinosa claimed that Urso

willfully secured the unavailability of the CI in his case. Id. at 914. We concluded

that, if it was discovered that Urso committed perjury in a proceeding similar to

Espinosa’s trial, the new evidence would go beyond mere impeachment evidence

and a new trial would be necessary to “remove the taint” from Espinosa’s

16
conviction. Id. We also noted that discovery would reveal when the U.S.

Attorney’s office learned of the allegations against Urso, which could warrant a

new trial based on the government’s failure to disclose evidence that could have

been used to impeach a witness. Id.

With respect to the impact the evidence would have had at trial, we

concluded that Urso’s testimony might have tarnished Espinosa’s credibility and

influenced the jury to believe the “hotly contested” testimony of three other

witnesses, instead of Espinosa’s claims of innocence. Id. We also noted that, from

a procedural standpoint, Urso had a “tremendous impact” on Espinosa’s conviction

because Urso alone was responsible for persuading the grand jury of the existence

of a single conspiracy and that discovery might lead to evidence that Urso’s

misstatements to the grand jury and in the criminal complaint affidavit were made

in bad faith. Id. In addition, we reasoned that discovery could reveal that Urso

deliberately secured the unavailability of the CI. Id. Therefore, we reversed the

district court’s denial of Espinosa’s motion for a new trial because “[t]he new

evidence might easily extend beyond that of mere impeachment and it might be

likely to lead to Espinosa’s acquittal in a second trial.” Id.

Johnson’s case is distinguishable from Espinosa-Hernandez because, in this

case, there is no accusation that the witnesses identified in Musta’s letter procured

the absence of a witness crucial to Johnson’s defense, which, in

17
Espinosa-Hernandez, we concluded could elevate the evidence above mere

impeachment evidence. Id. In addition, there is no indication here that the

government knew that the witnesses would provide untruthful testimony prior to

trial, unlike in Espinosa-Hernandez, where the U.S. Attorney’s office knew of

Urso’s misstatements and could have known about them before trial. Id. Musta’s

letter contains nothing that might similarly elevate its contents to anything above

mere impeachment evidence, and it in no way alleges the government was aware of

the alleged coaching.

Furthermore, in Espinosa-Hernandez, we determined that Urso’s testimony

could have persuaded the jury to believe the “hotly contested” testimony of three

witnesses instead of Espinosa’s testimony. 918 F.2d at 914. In this case, there

were nine other witnesses who testified about their drug dealings with Johnson.

See Starrett, 55 F.3d at 1554. In addition, with respect to Chambers and Lambert,

trial testimony established that they both hoped to receive sentence reductions for

cooperating with the government, and Lambert admitted testifying falsely in a

different proceeding. Accordingly, it cannot be said that evidence that these

witnesses coached each other would have greatly affected the jury, especially given

the consistent testimony given by numerous other witnesses. In addition, there is

no indication that the witnesses identified in Musta’s letter had as significant of an

impact on Johnson’s conviction as in Espinosa-Hernandez, where Urso may have

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made misstatements to the grand jury in bad faith and may have deliberately

secured the unavailability of a witness Espinosa claimed was essential to his

defense. 918 F.2d at 914. Accordingly Espinosa-Hernandez does not control the

outcome of this case, and based on the analysis above, we affirm as to this issue.

B. Sentencing under mandatory Guidelines

As an initial matter, Johnson originally was sentenced in 2002, before the

Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738,

160 L.Ed.2d 621 (2005). Johnson did not raise a constitutional objection to his

sentence at that time. After we dismissed his appeal for want of prosecution, he

filed a § 2255 motion, alleging ineffective assistance of counsel, and the district

court granted the motion and reimposed an identical sentence to enable to Johnson

to file an out-of-time appeal, pursuant to the procedures set out in Phillips.

1

Although the amended judgment was entered in 2008, we review the original

sentencing hearing in these circumstances. See United States v. Phillips, 287 F.3d

 In Phillips, we held, 1

When the district courts of this circuit conclude that an out-of-time appeal in a

criminal case is warranted as the remedy in a § 2255 proceeding, they should effect

that remedy in the following way: (1) the criminal judgment from which the

out-of-time appeal is to be permitted should be vacated; (2) the same sentence should

then be reimposed; (3) upon reimposition of that sentence, the defendant should be

advised of all the rights associated with an appeal from any criminal sentence; and

(4) the defendant should also be advised that the time for filing a notice of appeal

from that re-imposed sentence is ten days, which is dictated by Rule 4(b)(1)(A)(i).

225 F.3d at 1201. 

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1053, 1056-58 (11th Cir. 2002) (reviewing the court’s findings from the original

sentencing hearing after the district court reimposed the same sentence pursuant to

Phillips). Because Johnson did not raise a constitutional challenge to his sentence

before the district court, we review his Booker argument for plain error. See

United States v. Shelton, 400 F.3d 1325, 1328 (11th Cir. 2005) (reviewing Booker

issues not raised in the district court for plain error).

Under plain-error review, we “may not correct an error the defendant failed

to raise in the district court unless there is: (1) error, (2) that is plain, and (3) that

affects substantial rights.” Id. at 1328-29 (quotation omitted). If these criteria are

met, a court of appeals has the discretion to correct the error, but “should” correct

the error only if it “seriously affects the fairness, integrity or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 736, 113 S.Ct. 1770,

1779, 123 L.Ed.2d 508 (1993) (quotation and alteration omitted). In applying the

third prong of the plain-error test, we ask “whether there is a reasonable probability

of a different result if the guidelines had been applied in an advisory instead of

binding fashion by the sentencing judge.” United States v. Rodriguez, 398 F.3d

1291, 1301 (11th Cir. 2005). “Where errors could have cut either way and

uncertainty exists, the burden is the decisive factor in the third prong of the plain

error test, and the burden is on the defendant.” Id. at 1300. The third prong of

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plain error review is “exceedingly difficult for defendants to overcome.” Shelton,

400 F.3d at 1331.

In Booker, the Supreme Court (1) held that sentence enhancements based

solely on judicial fact-finding pursuant to the mandatory Sentencing Guidelines

violated the Sixth Amendment, and (2) excised the provisions of the Sentencing

Reform Act that made the guidelines mandatory – 18 U.S.C. §§ 3553(b)(1) and

3742(e) – thereby effectively rendering the Sentencing Guidelines advisory only.

543 U.S. at 233-35, 259-60, 125 S.Ct. at 749-51, 764. “As a result of Booker’s

remedial holding, Booker error exists when the district court misapplies the

Guidelines by considering them as binding as opposed to advisory.” Shelton, 400

F.3d at 1331.

Here, the district court committed an error that was plain by sentencing

Johnson under a mandatory guidelines system. See id. (holding that a court

commits Booker error by considering the Guidelines as binding and that Booker

has made such error plain). However, Johnson cannot satisfy his burden under the

third prong of plain-error review because he cannot establish a reasonable

probability that he would have received a different sentence under an advisory

scheme. At sentencing, the district court gave no indication that it was frustrated

with the severity of the Guidelines. See United States v. Underwood, 446 F.3d

1340, 1344 (11th Cir. 2006) (noting that defendants have satisfied the third prong

21
of plain-error review in past cases by pointing to evidence that the district court

“was frustrated with the severity of the Guidelines and sought to find a way to have

a lower sentence imposed” and holding that the defendant failed to meet his

burden, despite receiving a low-end sentence, because the record did not indicate

that the court was frustrated with the severity of a guidelines sentence). In

addition, the court found that Johnson’s mid-range sentence was appropriate given

the facts and circumstances of his case, which is inconsistent with the position that

the court would have given him a lower sentence had it treated the Guidelines as

advisory. See United States v. Curtis, 400 F.3d 1334, 1336 (11th Cir. 2005)

(amending a footnote in a prior opinion to clarify that the defendant failed to meet

the third prong of plain-error review because nothing suggested that the court

would have imposed a lower sentence under advisory guidelines, especially given

that the court sentenced him at the high end of the guideline range). Accordingly,

Johnson cannot show a reasonable probability that he would have received a lower

sentence had the court treated the range as advisory. Therefore, the district court

did not plainly err under Booker in sentencing him under a mandatory guidelines

system.

Johnson also argues that his sentence was unreasonable because the court

failed to consider his mitigating factors. On appeal, he notes that he would have

introduced Musta’s testimony regarding the amount of drugs and alleged collusion

22
of prosecution witnesses, as well as evidence of his background and his role in the

community. However, at his sentencing hearing, the court already had ruled on his

motion for a new trial and was aware of the implications of Musta’s letter, yet it

determined that a mid-range sentence was appropriate. As to the other factors,

Johnson merely identifies his background and role in the community and does not

argue how these factors would have militated in favor of a lower sentence.

Without more, Johnson cannot show a reasonable probability that his sentence

would have been lower had the court considered these factors at sentencing. See

Rodriguez, 398 F.3d at 1301.

Finally, Johnson alleges that the district court “utilized an improper and

unproved sentencing enhancement” that resulted in an unconstitutional sentence.

However, Johnson does not identify the allegedly improper sentencing

enhancement, and he offers no supporting argument as to this allegation. As such,

Johnson has abandoned any challenge to the court’s use of an unidentified sentence

enhancement. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.

1994) (holding that the defendant abandoned an issue by failing to offer argument

as to that issue on appeal). Accordingly, Johnson’s arguments fail, and we affirm

as to this issue.

III.

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Because Johnson cannot establish that newly discovered evidence was more

than mere impeaching evidence or would have produced a different outcome at

trial, the district court did not abuse its discretion in denying his motion for a new

trial without holding an evidentiary hearing. Johnson cannot show that the court

committed plain error in sentencing him under a mandatory guidelines system

because the court imposed a mid-range sentence and gave no indication that it was

frustrated with the severity of the Guidelines. Accordingly, we affirm Johnson’s

convictions and sentences.

AFFIRMED.

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