United States Court of Appeals

For the Eighth Circuit

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No. 18-3133

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United States of America

lllllllllllllllllllllPlaintiff - Appellee

v.

Ezra Emil Johnson

lllllllllllllllllllllDefendant - Appellant

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Appeal from United States District Court

for the Southern District of Iowa - Des Moines

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Submitted: September 23, 2019

Filed: December 3, 2019

[Unpublished]

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Before SMITH, Chief Judge, WOLLMAN and BEAM, Circuit Judges.

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PER CURIAM.

Ezra EmilJohnson pleaded guilty to conspiracy to distribute 100 grams or more

of a mixture or substance containing heroin, in violation of 21 U.S.C. §§ 841(a)(1), 
841(b)(1)(B), and 846. The district court1

sentenced Johnson to 132 months’

imprisonment. We affirm. 

The district court calculated Johnson’s advisory sentencing range under the

U.S. Sentencing Guidelines (Guidelines). Adopting the presentence investigation

report, the district court applied the Guidelines career offender provision, because

Johnson had one prior conviction that qualified as “a crime of violence” and another

that qualified as “a controlled substance offense.” See U.S.S.G. § 4B1.1(a). The

court determined that Johnson’s total offense level was 31, that his criminal history

category was VI, and that his advisory sentencing range was 188 to 235 months’

imprisonment. The court varied downward after consideration of the 18 U.S.C.

§ 3553(a) factors. 

Johnson arguesthat the application of the Guidelines career offender provision

violates the Double Jeopardy Clause of the Fifth Amendment. He contends that the

imposition of a more severe advisory range punishes him twice for his earlier

offenses. The Supreme Court has rejected similar double jeopardy challenges,

“because the enhanced punishment imposed for the later offense is not to be viewed

as either a new jeopardy or additional penalty for the earlier crimes, but instead as a

stiffened penalty for the latest crime . . . .” Witte v. United States, 515 U.S. 389, 400

(1995) (internal quotation marks and citation omitted). Because the career offender

provision increases Johnson’s total offense level for his current offense, it is not an

additional penalty under the Fifth Amendment, and Johnson’s argument thus fails. 

See United States v. Thompson, 972 F.2d 201, 204 n.3 (8th Cir. 1992) (holding that

the career offender provision does not violate the Double Jeopardy Clause); see also

United States v. Smith, 581 F.3d 692, 695 (8th Cir. 2009) (holding that increasing a

sentence based on a prior conviction does not violate the Double Jeopardy Clause). 

1The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa. 

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Finally, Johnson’ssentence is substantivelyreasonable. The record establishes

that the district courtsufficiently considered the § 3553(a) sentencing factors and did

not abuse its discretion in varying downward. See United States v. Zauner, 688 F.3d

426, 429 (8th Cir. 2012) (noting that, when a district court varies downward, “it is

nearly inconceivable that the court abused its discretion in not varying downward still

further” (quoting United States v. Lazarski, 560 F.3d 731, 733 (8th Cir. 2009))); see

also United States v. Feemster, 572 F.3d 455, 461-62 (8th Cir. 2009) (en banc)

(discussing standard of appellate review for sentencing decisions).

The sentence is affirmed. 

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