United States Court of Appeals

for the Fifth Circuit

No. 18-11602

United States of America, 

Plaintiff—Appellee,

versus

Derrick Adrian Johnson, 

Defendant—Appellant.

Appeal from the United States District Court

Northern District of Texas, Dallas

USDC No. 3:16-CR-349-1

Before STEWART, CLEMENT, and COSTA, Circuit Judges.

Per Curiam:*

Derrick Adrian Johnson appeals his jury trial conviction and sentence 

for bank robbery. For the following reasons, we affirm.

* 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not be published and is not precedent except under the limited circumstances set forth in 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.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2020

Lyle W. Cayce

Clerk

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I. Facts & Procedural History

In August 2016, Johnson was charged with bank robbery, in violation 

of 18 U.S.C. § 2113(a). Prior to trial, he filed an opposed motion seeking funds 

to retain a psychiatrist to evaluate whether he was insane at the time of the 

offense. He also filed a notice of intent to assert an insanity defense. While 

Johnson’s request for funding was pending, the Government moved for a 

pretrial psychiatric or psychological examination. The district court granted 

the Government’s motion and Johnson was transferred to a Bureau of 

Prisons (BOP) facility and examined by a BOP psychologist, Dr. Tennille 

Warren-Phillips. After examining Johnson, Dr. Warren-Phillips concluded 

“[i]t is my opinion Mr. Johnson was criminally responsible for his alleged 

actions during the time period in question. I do not believe that he, as a result 

of a severe mental disease or defect, was unable to appreciate the nature and 

quality or wrongfulness of his acts.” 

The magistrate judge (MJ) then denied Johnson’s pending requests 

for funds to retain two specific expert witnesses, Dr. Tim F. Branaman, a 

psychologist, and Jeff Fletcher, a licensed professional counselor.

1 The MJ 

acknowledged that Johnson was indigent but determined that he had not 

established that the services of a psychologist were necessary for his defense. 

Johnson exercised his right to testify at trial and generally asserted that 

he could not remember what happened on the day of the bank robbery and 

that he was “not in [his] right mindset” that day. During his initial 

examination, defense counsel asked Johnson whether he had met with any 

mental health providers other than Dr. Warren-Phillips, and Johnson 

1

Johnson withdrew his initial request for funds to retain a psychiatrist but did 

not withdraw his subsequent ex parte requests for funds to retain Dr. Branaman and

Fletcher.

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responded that he met with Fletcher and Dr. Branaman for the purpose of 

evaluating his mental state at the time of the robbery. Counsel then 

questioned Johnson about the outcome of those meetings, and the 

Government objected that the questions called for hearsay and that the 

information divulged in those meetings had not been disclosed to the 

Government. 

Defense counsel then asked Johnson why the counselors were not 

testifying and Johnson stated that he could not afford them. Then, on crossexamination, the prosecutor asked Johnson, without referencing any 

particular individual, whether he had the power to “subpoena witnesses to 

come up here and testify [on his] behalf,” and Johnson replied, “[t]hat’s 

correct.” Defense counsel followed up on redirect, eliciting testimony that 

some witnesses cost money, that some witnesses may not show up in court 

even though they are subpoenaed, and that subpoenas were issued by the 

court in Johnson’s case. The following colloquy took place on re-cross 

examination:

Q. Mr. Johnson, you keep saying that you don’t 

have money and that’s why you don’t have any 

witnesses here. You understand that if somebody 

violates a federal subpoena, the Marshals can go 

out and find them; the Court can issue a bench 

warrant. Correct?

A. That’s my first time hearing that.

Q. You don’t have any understanding of what the 

consequences are if you violate a federal 

subpoena?

A. I’ve never been subpoenaed or issued a 

subpoena, so no, I don’t.

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Q. You understand that there is a process in place 

for you to actually petition the Court for money 

to pay witnesses that cost money. Correct?

A. Yes.

Q. And, in fact, you have petitioned the Court for 

money and you were denied that money. 

Correct?

A. That’s correct.

Q. The Court made the determination not to give 

you that money. Is that right?

A. In contravention of the law, yes.

Q. That’s what you say, but the Court has 

decided that you are not going to have money to 

pay whoever you wanted to pay. Is that correct?

A. That’s correct.

[Q]: No further questions.

In closing, counsel for Johnson challenged only whether he had the 

mental state necessary to commit the bank robbery and argued that he could 

not present testimony from mental health experts because he could not afford 

them. In rebuttal, the Government emphasized that Johnson would have 

issued subpoenas for his mental health experts had there been any validity to 

his mental health defense. The district court then advised the jury that (1) 

the questions, statements, objections, and arguments of the attorneys were 

not evidence and (2) jurors should not assume that the court had any opinion 

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on the issues based on the court’s actions and statements, and should 

disregard them. The jury found Johnson guilty as charged. 

The presentence report (PSR) assigned Johnson a two-level 

enhancement for obstruction of justice under U.S.S.G. § 3C1.1 on the 

grounds that he committed perjury during his trial testimony by falsely 

stating that he could not remember the circumstances of the instant bank 

robbery. Specifically, the PSR provided that:

[T]he defendant testified he could not recall the 

events of the instant offense. The government 

noted the defendant confessed to the events of 

the instant offense to law enforcement officials 

immediately following his arrest on July 9, 2016. 

The defendant also recounted the events, in 

detail, when he met with Dr. Tennille WarrenPhillips during multiple sessions for a Criminal 

Responsibility Report. Dr. Warren-Phillips 

indicated the defendant never expressed any 

problems recalling the instant offense during 

those sessions.

See PSR, Paragraph 16; ROA 675. Johnson objected, arguing that he never 

claimed not to remember the major facts of the instant offense and whether 

he testified truthfully regarding his recall should not be predicated on the 

report of Dr. Warren-Phillips because she did not testify at trial. 

Johnson proceeded pro se at the sentencing hearing and adopted the 

objections to the PSR filed by counsel and re-urged them orally. The district 

court overruled Johnson’s objections to the § 3C1.1 enhancement and 

adopted the PSR which provided for a guidelines range of 92-115 months. 

Because it found a guidelines sentence inadequate, the district court varied 

upward and imposed a sentence of 132 months, observing that the 115-month

sentence imposed for a prior similar bank robbery that Johnson had 

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committed in 2007 had not deterred him from committing a similar crime. 

Johnson filed this appeal. 

II. Discussion

Johnson presents two issues for this court’s review on appeal. First, 

he argues that the prosecutor engaged in misconduct that prejudiced his 

defense by commenting on his failure to subpoena Fletcher and Dr. 

Branaman and on the district court’s pretrial denial of his motion for funds 

to hire a mental health expert. Second, he argues that the district court 

reversibly erred by applying the § 3C1.1 obstruction of justice enhancement. 

We address each issue in turn.

Prosecutorial Misconduct

“A prosecutor is prohibited from commenting directly or indirectly 

on a defendant’s failure to testify or produce evidence.” United States v. 

Waguespack, 935 F.3d 322, 334 (5th Cir. 2019) (quoting United States v. 

Romero-Medrano, 899 F.3d 356, 361 (5th Cir. 2018)). However, “[i]mproper

prosecutorial comments constitute reversible error only where the 

defendant’s right to a fair trial is substantially affected.” Id. (quoting United 

States v. Stephens, 571 F.3d 401, 407-08 (5th Cir. 2009)). In reviewing a claim 

of prosecutorial misconduct, this court employs a two-step analysis. United 

States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010). We first determine 

whether the disputed remark was improper. Id. If so, we then decide 

whether the remark affected the defendant’s substantial rights. Id. 

When the defendant does not object to the disputed remark, as in this 

case, we review for plain error only, which requires him to show error that is 

clear and obvious and affects his substantial rights. United States v. Gracia, 

522 F.3d 597, 599-600 (5th Cir. 2008). If the defendant makes such a 

showing, we have the discretion to correct the error and should do so if it 

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seriously affected the fairness, integrity, or public reputation of judicial 

proceedings. Puckett v. United States, 556 U.S. 129, 135 (2009). 

We assume without deciding that Johnson can prove prongs one and 

two of plain error as to the prosecutor’s remarks regarding his failure to 

subpoena witnesses and the court’s pretrial denial of funds to hire a mental 

health expert. We also agree with the Government, however, that his claim 

falls short on prong three, substantial rights. More specifically, Johnson 

cannot demonstrate a reasonable probability that any purported error here

influenced the outcome of his trial. See United States v. Huntsberry, 956 F.3d 

270, 283 (5th Cir. 2020) (“As a general rule, an error affects a defendant’s 

substantial rights only if the error was prejudicial . . . . Error is prejudicial if 

there is a reasonable probability that the result of the proceedings would have 

been different but for the error.” (citations omitted)). The record reflects 

that the Government presented adequate evidence at trial to support the 

jury’s verdict of guilt, including but not limited to: stills of the videotaped

footage of Johnson committing the bank robbery, the robbery note, the fact 

that he still had cash he had stolen from the bank on him when he was 

arrested, that he admitted he robbed the bank to investigators and a mental 

health counselor, and that he committed the robbery one day after he finished 

serving a sentence for a prior bank robbery.

Given the voluminous evidence of Johnson’s guilt as presented at 

trial, we agree with the Government that any purported error with respect to 

the prosecutor’s comments as to Johnson’s failure to subpoena witnesses or 

the district court’s pretrial denial of funds for a mental health expert could 

not have affected the outcome of his proceedings. See United States v. SmithBowman, 76 F.3d 634, 637 (5th Cir. 1996) (“[T]he evidence as a whole before 

the jury was sufficiently convincing of guilt as to overcome any error 

committed by the government during its cross-examination of this one 

defense witness.”).

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Sentencing Enhancement

Section 3C1.1 of the Sentencing Guidelines provides for a two-level 

enhancement if “the defendant willfully obstructed or impeded, or 

attempted to obstruct or impede, the administration of justice with respect 

to the investigation, prosecution, or sentencing of the instant offense of 

conviction.” Perjury is one example of conduct to which this enhancement 

applies. U.S.S.G. § 3C1.1, cmt. n.4(B). “[A] defendant commits perjury if he 

provides ‘false testimony concerning a material matter with the willful intent 

to provide false testimony, rather than as a result of confusion, mistake, or 

faulty memory.’” United States v. Smith, 804 F.3d 724, 737 (5th Cir. 2015) 

(quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)); see § 3C1.1, cmt.

n.2.

Where error is preserved as it is here,

2 we review the district court’s 

“application or interpretation of the Sentencing Guidelines de novo and its 

factual findings, such as a finding of obstruction of justice, for clear error.” 

Smith, 804 F.3d at 737. A factual finding is not clearly erroneous if it is 

“plausible in light of the record as a whole.” Id. (quoting United States v. 

Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008)).

2 The Government argues that review is for plain error only because Johnson 

did not challenge the district court’s failure to make specific, independent findings 

addressing each element of perjury in his objections before the district court. This 

court, however, has deemed an objection preserved despite the party’s failure to use 

“magic words.” United States v. Johnson, 267 F.3d 376, 380 (5th Cir. 2001). Although 

Johnson’s pro se objection to the obstruction enhancement may not have been as 

articulate as that of an attorney, he argued at sentencing that he did not know exactly 

how he provided false testimony and that he should not be punished for exercising his 

right to testify at trial. Accordingly, we consider his objection sufficiently preserved. 

See United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009). 

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Johnson’s objection to the enhancement triggered a duty by the 

district court to “review the evidence and make independent findings 

necessary to establish a willful impediment to or obstruction of justice, or an 

attempt to do the same.” United States v. Perez-Solis, 709 F.3d 453, 469 (5th 

Cir. 2013) (quoting Dunnigan, 507 U.S. at 95). When such an objection is 

raised, the district court should address each element of perjury in a separate 

and clear finding. Dunnigan, 507 U.S. at 95. However, a district court is not 

required to make an explicit finding of willfulness, see United States v. Miller,

607 F.3d 144, 152 (5th Cir. 2010), and “need not expressly find that the false 

testimony concerned a material matter” where “materiality is obvious.” 

Perez-Solis, 709 F.3d at 470 (internal quotation marks omitted). A finding of 

obstruction “that encompasses all of the factual predicates for a finding of 

perjury” is sufficient. Dunnigan, 507 U.S. at 95. Further, this court has held 

that in making findings in support of § 3C1.1’s application, “it is sufficient 

for the court to adopt adequate findings in a [PSR].” Perez-Solis, 709 F.3d at 

470; see also United States v. Ollison, 555 F.3d 152, 164 (5th Cir. 2009) 

(holding that, because the defendant bears the burden of demonstrating that 

the PSR is inaccurate, in the absence of rebuttal evidence, the district court 

may properly rely on the PSR).

Here, the district court adopted the adequate factual findings set forth 

in the PSR, as it was permitted to do. See Perez-Soliz, 709 F.3d at 470. The 

PSR in turn provided that Johnson committed perjury during his trial 

testimony by falsely stating that he could not remember the circumstances of 

the instant bank robbery. The PSR explained that Johnson’s testimony that 

he could not recall the events of the current offense were contradicted by his 

confession of the offense to law enforcement on July 9, 2016, as well as by his 

meetings with Dr. Warren-Phillips wherein he recounted the events of the 

offense in detail. Here, the “materiality is obvious” so the district court was 

not required to make express findings that Johnson’s false testimony 

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concerned a material matter. Id. Likewise, its reliance on the factual findings 

set forth in the PSR in support of the enhancement was appropriate. The 

district court did not reversibly err by applying a two-level enhancement for 

obstruction of justice under U.S.S.G. § 3C1.1.

III. Conclusion

Johnson’s conviction and sentence are affirmed.

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