IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-31053

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

GEORGE JOHNSON,

Defendant-Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:15-CR-168-3

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

George Johnson challenges the concurrent 18-month and 12-month 

sentences imposed following the revocation of supervised release for his 2016 

convictions for conspiracy to distribute and possess with intent to distribute

heroin and for using a communication facility to facilitate a drug offense, 

respectively. Johnson contends that his sentences, which exceed the range 

provided in the policy statements of the Sentencing Guidelines, are

procedurally unreasonable because the district court did not adequately 

 

* 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 7, 2019

Lyle W. Cayce

Clerk

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No. 18-31053

2

explain its reasons for the upward variance and because the court did not take 

into account his need for medical care, as required by 18 U.S.C. § 3553(a)(2)(D). 

He also challenges the sentences’ substantive reasonableness, asserting that 

the court failed to take into account his need for drug rehabilitation, the need 

to avoid unwarranted sentencing disparities, and the rehabilitative goals of 

supervised release.

Revocation sentences are generally reviewed under 18 U.S.C. § 3742(a)’s 

“plainly unreasonable” standard. United States v. Miller, 634 F.3d 841, 843 

(5th Cir. 2011). To the extent Johnson did not object on the aforementioned 

grounds in the district court, however, review is for plain error. See United 

States v. Warren, 720 F.3d 321, 332 (5th Cir. 2013); United States v. Whitelaw, 

580 F.3d 256, 259-60 (5th Cir. 2009). Under the plain error standard, Johnson

must show a forfeited error that is clear or obvious and that affected his 

substantial rights. See Puckett v. United States, 556 U.S. 129, 135 (2009). We 

have discretion to correct such an error but will do so only if it seriously affects 

the fairness, integrity, or public reputation of judicial proceedings. Id.

With respect to the reasons for the sentences, Johnson has not shown the 

requisite clear or obvious error. In imposing the sentences, the district court 

cited the nature and circumstances of Johnson’s supervised release violations, 

his history and personal characteristics, the need for deterrence and protection 

of the public, the types of sentences available, and the advisory range set forth 

in the policy statements of the Guidelines. See 18 U.S.C. § 3553(a)(1), (2)(B)-

(C), (3), (4)(B). The district court’s listing of the § 3553(a) factors, as well as its 

statements at sentencing, are sufficient to “satisfy the appellate court that [it] 

has considered the parties’ arguments and has a reasoned basis for exercising 

[its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 

356 (2007).

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As for Johnson’s contention that the district court failed to consider his 

need for medical care, a failure to consider the appropriate § 3553(a) factors 

may constitute a procedural sentencing error. See Gall v. United States, 552 

U.S. 38, 51 (2007). Although the district court did not list this factor, Johnson 

has not shown that the omission constitutes error, plain or otherwise. There 

was no evidence presented indicating that the length of Johnson’s prison 

sentence would have any effect on the possibility that he would seek substance 

abuse treatment on his own. Under the circumstances, Johnson is unable to 

show that any failure by the district court to consider this factor rendered his 

sentences plainly unreasonable. See Miller, 634 F.3d at 843.

As for Johnson’s substantive-unreasonableness challenge, although the 

18-month and 12-month sentences are above the maximum policy statement 

sentence of 11 months, they are within the statutory maximums of 24 and 12 

months. “We have routinely affirmed revocation sentences exceeding the 

advisory range, even where the sentence equals the statutory maximum.” 

Warren, 720 F.3d at 332 (internal quotation marks and citation omitted). This 

matter does not warrant a different result. See id. at 333. Johnson has not 

shown that the district court failed to account for a factor that should have 

received significant weight, gave significant weight to any irrelevant or 

improper factors, or committed a “clear error of judgment in balancing the 

sentencing factors.” United States v. Smith, 440 F.3d 704, 708 (5th Cir. 2006). 

Accordingly, he has not established error, plain or otherwise. See Warren, 720 

F.3d at 332-33; Miller, 634 F.3d at 843. The judgment is AFFIRMED.

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