* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 02-10712

Summary Calendar

 

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

DAVID ANTOINE JOHNSON

Defendant - Appellant

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:01-CR-185-A-1

--------------------

March 12, 2003

Before KING, Chief Judge, and DeMOSS and BENAVIDES, Circuit

Judges.

PER CURIAM:*

David Antoine Johnson appeals his sentence following his

guilty plea to two counts of brandishing a firearm during a bank

robbery. Johnson raises two issues on appeal: (1) the district

court erred in departing upward from the guidelines range of

sentences for his crimes; and (2) the stacking of his sentences

to run consecutively constitutes a violation of the Eighth

Amendment’s prohibition on cruel and unusual punishment.
No. 02-10712

-2-

Johnson first argues that the district court erred in

failing to comply with 18 U.S.C. § 3553(c) in explaining its

reasons for upwardly departing, abused its discretion in upwardly

departing, and improperly considered dismissed counts in

assessing the sentence. Because Johnson failed to object to the

upward departure below, review is limited to plain error. See

United States v. Alford, 142 F.3d 825, 830 (5th Cir. 1998)

(noting that this court can reverse under a plain error standard

of review only upon a finding that the district court committed a

plain error and that the error affected the defendant’s

substantial rights). 

Johnson stipulated that he committed the counts that were

dismissed, and the district court found by a preponderance of the

evidence that Johnson did commit those offenses. The district

court concluded that the guidelines did not adequately take into

account either the total offense conduct or the carjacking

Johnson committed after one of the robberies. The district court

also found that the guidelines did not adequately take into

account the impact of the crimes on the victims or the ongoing

problems the victims suffered. 

In sentencing Johnson, the district court explained the

mandatory sentences Johnson faced for the offenses to which he

pleaded guilty. The district court also explained what the

additional consecutive sentence would have been had he been

convicted of all of the counts charged. As Johnson concedes, the
No. 02-10712

-3-

guidelines allow consideration of dismissed counts as relevant

conduct. See U.S.S.G. § 5K2.21. Johnson has not shown that the

decision to depart upwardly was plain error or that the district

court failed to explain its reasons for departing upwardly or

that the district court could not consider the dismissed counts

in sentencing him.

Johnson also argues that the district court’s stacking of

his sentences was an unconstitutionally excessive punishment 

because it made no measurable contribution to acceptable goals of

punishment and was grossly out of proportion to the crime’s

severity. This court looks to Rummel v. Estelle, 445 U.S. 263

(1980), to determine whether a sentence is grossly

disproportionate. United States v. Gonzales, 121 F.3d 928, 943

(5th Cir. 1997) (noting that Rummel is a “litmus test” for

determining whether a sentence is grossly disproportionate). In

Rummel, the Court rejected an Eighth Amendment challenge to a

sentence of life imprisonment following a conviction under a

‘recidivist statute’ for obtaining $120 by false pretenses. 

Rummel, 445 U.S. at 285.

Using Rummel as the benchmark, Johnson’s sentence is not

grossly disproportionate to his offense. Robbery of a bank while

brandishing a gun is a crime of violence. United States v.

Thames, 214 F.3d 608, 614-15 (5th Cir. 2000). As such, the crime

warrants severe penalties. See Gonzales, 121 F.3d at 944. 

Johnson had a record indicating recidivist tendencies. Johnson
No. 02-10712

-4-

faced a potential sentence of 711 months had the plea agreement

been rejected and had he been sentenced on all counts in which he

was named. Moreover, the district court found that even a

sentence for all of the conduct charged in the superceding

indictment would not account adequately for the harm to the

victims. Therefore, under the standard set by Rummel, Johnson’s

sentence does not offend the Eighth Amendment.

The district court’s judgment is AFFIRMED.