IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-60852

UNITED STATES OF AMERICA, 

 Plaintiff–Appellee,

v.

JERRY ANTWAN JOHNSON, also known as Head, 

 Defendant–Appellant.

Appeal from the United States District Court 

for the Northern District of Mississippi 

Before OWEN, Chief Judge, and WIENER and DENNIS, Circuit Judges.

OWEN, Chief Judge:

Jerry Antwan Johnson pleaded guilty to violating 18 U.S.C. §§ 922(g)

and 924(e) by knowingly possessing a firearm after he had been convicted of a

misdemeanor crime of domestic violence. The probation officer prepared a 

presentence report (PSR) and a confidential sentencing recommendation

(Recommendation). In imposing an above-guidelines sentence of 72 months of 

imprisonment, the district court relied on factual allegations in the 

Recommendation that were not in the PSR and that were not disclosed to 

Johnson. This violated Federal Rule of Criminal Procedure 32, and based on

the facts before us, the plain error standard of review has been met. We vacate 

Johnson’s sentence and remand for further proceedings.

United States Court of Appeals

Fifth Circuit

FILED

April 21, 2020

Lyle W. Cayce

Clerk

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I

After Johnson pleaded guilty, a probation officer prepared a PSR. The 

PSR calculated a total offense level of 21. The probation officer calculated 15 

points of criminal history based on Johnson’s misdemeanor convictions, 

however, the maximum points that could be applied for those convictions was

4.1 Accordingly, the probation officer attributed only 4 points of criminal 

history, placing Johnson in Category III. The resulting advisory sentencing 

range was 46 to 57 months of imprisonment. 

The PSR also detailed previous charges that did not result in conviction. 

While the instant offense was Johnson’s first felony conviction, it was not his 

first felony charge.

The PSR recommended an upward variance “to ensure the sentence 

reflects the nature and circumstances of the offense and the history and 

characteristics of the defendant.” One justification for the variance was that 

Johnson had several misdemeanor convictions for which no criminal history 

points were allocated. Johnson was provided the PSR and made no objections.

The probation officer also prepared the Recommendation, which

included the following factual summary:

As this investigation unfolded, it became increasingly clear the 

local police agencies in Clarksdale, Mississippi, had become 

desperate to get this defendant off the street, and were forced to 

ask for federal assistance. The defendant, as reflected by his 

criminal history, has been a public nuisance, and a danger to 

anyone in the community who stood in defiance of him. The 

defendant has likely intimidated numerous witnesses in the past 

to avoid felony prosecution. He has asserted his dominion over 

defenseless women he had relationships with, which is 

documented by his domestic violence convictions. The lead agent 

in this case described the defendant as a “known shooter,” and 

“public enemy number 3 in the Clarksdale area.” The defendant 

1 See U.S.S.G. § 4A1.1 (2016). 

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is a known gang member and is a documented participant in at 

least two shootings. The defendant is violent, and clearly has a 

complete lack of respect for the law. The sheer volume of his 

misdemeanor convictions paints a picture of a violent, disruptive, 

disrespectful, assertive, angry, and frankly, dangerous person. 

Communities burdened with individuals like the defendant often 

seek federal help to rid their community of systemic offenses 

caused by such individuals they have failed to control. This case 

is a perfect example of a community forced to plead for federal 

assistance to stop such an individual. Pursuant to 18 U.S.C. 

§ 3553(a)(1), the Court may wish to consider an upward variance 

to ensure the sentence reflects the nature and circumstance of the 

offense and the history and characteristics of the defendant, who 

in this case has participated in criminal behavior since 2003. The 

defendant has several misdemeanor convictions for which no 

criminal history points were allocated. An upward variance may 

be necessary to ensure the sentence in this case adequately 

promotes respect for the law, provides just punishment for the 

offense, affords adequate deterrence to the defendant’s criminal 

conduct, and protects the public from further crimes of the 

defendant. Therefore, for the assurance of community safety, the 

undersigned respectfully recommends the defendant receive a 

sentence of 120 months, which is the statutory maximum penalty 

allowed, in order to ensure public safety and restore the public 

confidence in local law enforcement. Additionally, based on factors 

in U.S.S.G. § 4A1.3(a)(1), an upward departure may be warranted 

if reliable information indicates the defendant’s criminal history 

category substantially under-represents the seriousness of the 

defendant’s criminal history or the likelihood that the defendant 

will commit other crimes. The defendant has a record of 

continuous violations of the law. There is no evidence to suggest 

the defendant will cease his criminal activity unless removed from 

the area by incarceration. The variance and departure language 

in this case is specifically designed to help punish offenders like 

the defendant when there is a desperate desire by local 

communities to eliminate systemic criminal behavior.

At sentencing, it became clear that the district court was relying on 

information contained in the Recommendation. The court observed, 

[I]t’s interesting to the Court that in Clarksdale the witnesses 

seem to be afraid to come in and testify. It’s not that you haven’t 

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been charged with things, such as armed robbery. And then the 

witnesses don’t show up for trial. And I’m not—this is just what I 

have been told by this report that I’ve gotten, that—it says that 

the local police agencies in Clarksdale have become desperate to 

get you off the street and were forced to ask for federal assistance.

Based on that exchange, Johnson’s counsel asked if the report referenced by 

the district court had been disclosed to the defense, and the district court 

indicated it was a report from the probation office that had not been disclosed. 

The court continued,

That the defendant has likely intimidated numerous witnesses to 

avoid felony prosecution. Otherwise, I see no reason that the 

federal officers would be in Clarksdale to make this case against 

you other than that they’ve been asked to come here because the 

local courts have not had any success in getting witnesses to come 

testify.

Johnson’s counsel identified two charges that were dropped for failure of the 

witnesses to appear.

The court summarized its concerns as it imposed its sentence: “The 

Court[] [is] of the opinion that these pages of criminal charges and evidence of 

intimidation of witnesses—that the criminal charges—history does not 

adequately reflect the seriousness of your—of the record and of the defendant’s 

conduct.” “Based on these considerations,” the court sentenced Johnson to 72 

months of imprisonment.

Johnson objected to “any sentence outside the guideline[s] as being 

unreasonable.” Johnson requested that the Recommendation be made part of 

the record on appeal, and the district court granted that motion. This appeal 

followed.

II

Johnson argues that the presentation of “secret facts” to the district court 

in a confidential sentencing recommendation (1) violated the disclosure 

requirement in Rule 32 of the Federal Rules of Criminal Procedure, (2) violated 

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the Due Process clause of the Fifth Amendment, (3) violated the Confrontation 

Clause of the Sixth Amendment, and (4) deprived him of his Sixth Amendment 

right to counsel. Johnson did not object to the use of such facts in the district 

court, so our review is for plain error.2

Johnson must show (1) an error or defect, (2) that is clear or obvious, (3) 

that affected his substantial rights, and (4) that we should exercise our 

discretion to remedy the error because it “seriously affect[s] the fairness, 

integrity or public reputation of judicial proceedings.”3 An error is clear or 

obvious if it is not subject to reasonable dispute.4 We first address Johnson’s 

contentions regarding Rule 32 because “we are obliged to consider nonconstitutional issues that would be dispositive of the appeal before we reach a 

constitutional question.”5 

Rule 32 provides for preparation and disclosure of a PSR to assist the 

district court in arriving at a fair and reasonable sentence.6 Rule 32(e)(2)

2 United States v. Potts, 644 F.3d 233, 236 (5th Cir. 2011) (citing United States v. 

Salinas, 480 F.3d 750, 755 (5th Cir. 2007)).

3 Puckett v. United States, 556 U.S. 129, 135 (2009) (alteration in original) (quoting 

United States v. Olano, 507 U.S. 725, 736 (1993)). 4 Id.

5 United States v. Howell, 838 F.3d 489, 492-93 (5th Cir. 2016) (first citing Nw. Austin 

Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (“[I]t is a well-established 

principle governing the prudent exercise of this Court’s jurisdiction that normally the Court 

will not decide a constitutional question if there is some other ground upon which to dispose 

of the case.” (quoting Escambia Cty. v. McMillan, 466 U.S. 48, 51 (1984) (per curiam))); and 

then citing Jean v. Nelson, 472 U.S. 846, 854 (1985) (“Prior to reaching any constitutional 

questions, federal courts must consider nonconstitutional grounds for decision.” (quoting Gulf 

Oil Co. v. Bernard, 452 U.S. 89, 99 (1981))); and then citing Clay v. Sun Ins. Office Ltd., 363 

U.S. 207, 209 (1960) (“By the settled canons of constitutional adjudication the constitutional 

issue should have been reached only if, after decision of two non-constitutional questions, 

decision was compelled.”); and then citing Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 

347 (1936) (BRANDEIS, J., concurring) (“The Court will not pass upon a constitutional 

question although properly presented by the record, if there is also present some other ground 

upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two 

grounds, one involving a constitutional question, the other a question of statutory 

construction or general law, the Court will decide only the latter.”)). 6 FED. R. CRIM. P. 32(d), (e)(2).

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requires that “[t]he probation officer must give the presentence report to the 

defendant, the defendant’s attorney, and an attorney for the government at 

least 35 days before sentencing unless the defendant waives this minimum 

period.”7 Johnson did not waive that minimum period, and the PSR that was 

provided to him and his counsel did not contain the assertion in the 

Recommendation that Johnson “has likely intimidated numerous witnesses in 

the past to avoid felony prosecution.”

“The touchstone of [R]ule 32 is reasonable notice” to allow counsel to 

engage in adversarial testing at sentencing.8 Rule 32(d)(2) requires the PSR 

to contain “the defendant’s history and characteristics, including . . . any 

circumstances affecting the defendant’s behavior that may be helpful in 

imposing sentence,” as well as “any other information that the court requires, 

including information relevant to the factors under 18 U.S.C. § 3553(a).”9 Rule 

32(i)(1)(C) requires a court to permit the “parties’ attorneys to comment on the 

probation officer’s determinations and other matters relating to an appropriate 

sentence.”10 Further, a defendant has a due process right to review and object 

to a PSR.11 However, while Rule 32(e)(2) requires disclosure of the PSR, Rule 

32(e)(3) permits a district court, by local rule or by order in a case, to “direct 

the probation officer not to disclose to anyone other than the court the officer’s 

recommendation on the sentence.”12 The Northern District of Mississippi has 

such a rule.13 

7 FED. R. CRIM. P. 32(e)(2).

8 United States v. Angeles-Mendoza, 407 F.3d 742, 749 n.12 (5th Cir. 2005) (quoting 

United States v. Andrews, 390 F.3d 840, 845 (5th Cir. 2004)). 9 FED. R. CRIM. P. 32(d).

10 FED. R. CRIM. P. 32(i)(1)(C).

11 United States v. Jackson, 453 F.3d 302, 305-06 (5th Cir. 2006).

12 FED. R. CRIM. P. 32(e)(3). 13 DISCLOSURE OF INITIAL SENTENCE RECOMMENDATION, Rule 32, Local Uniform 

Criminal Rules of the U.S. District Court for the Northern District of Mississippi (April 30, 

2013) (available here: https://bit.ly/2RdcZhm).

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Johnson maintains that although Rule 32(e)(3) contemplates that a 

probation officer’s sentencing recommendation to the court will be confidential, 

the Rule must be strictly limited to maintaining confidentiality of only “a 

numeric range, or alternatively, a justification section that only includes facts 

disclosed in the PSR.” We cannot agree with such a constraint on a Rule 

32(e)(3) recommendation. A numeric range without justification or reasoning 

does not aid the district court in determining a sentence that satisfies the 

factors in 18 U.S.C. § 3553(a). However, Rule 32(e)(3) cannot be used to shield 

undisclosed facts or factual allegations upon which a probation officer 

substantially relies in recommending an upward departure or variance from 

the Guidelines sentencing range or the selection of a particular sentence within 

that range. The questions we must resolve in the present case are whether 

the Recommendation substantially relied on facts or factual allegations that 

were not disclosed to Johnson and whether the district court relied upon those 

undisclosed facts in selecting the sentence it imposed.

The PSR detailed Johnson’s extensive criminal history in his home of

Clarksdale, Mississippi. For example, and of particular importance here, one 

of Johnson’s convictions for misdemeanor domestic violence revealed that he 

intimidated the victim. Police witnessed Johnson slapping the female victim 

and detained Johnson in the police car. While Johnson was in the back of the 

car, he began kicking the inside of the window and screamed at the woman not 

to sign the domestic violence packet. Officers subdued Johnson with a 

chemical agent to prevent him from kicking the window out of the car. 

However, the woman did not sign the packet.

The PSR also described two armed robbery charges against Johnson that 

were dismissed when the victims failed or refused to appear at trial. The first

occurred in 2004, when Johnson allegedly robbed two individuals at gunpoint

and shot one of them. Johnson’s trial was to commence four years later, and

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the “two witnesses/victims in the case were subpoenaed to appear for trial; 

however, their whereabouts were unknown to the court or counsel.” The trial 

was reset, but the witnesses “again failed and/or refused to appear.” The state

court found no justifiable reason why the case had not been tried earlier and 

“no plausible explanation as to why the witnesses/victims continued to refuse 

to cooperate.” Accordingly, the state trial court dismissed the charges. 

In April 2016, Johnson allegedly robbed two individuals at gunpoint. 

Both victims signed affidavits before police officers that indicated that Johnson 

had robbed them. Based on those affidavits, officers obtained an arrest 

warrant from a Mississippi court and arrested Johnson. While Johnson was 

in jail, the two witnesses approached officers with typed affidavits “advising 

they did not wish or intend to prosecute” Johnson. The affidavits were 

notarized by an attorney in Mississippi. 

Though the Recommendation asserted that Johnson “likely intimidated 

numerous witnesses in the past to avoid felony prosecutions,” the PSR is devoid 

of such an allegation; nor is there evidence of witness intimidation other than 

during the domestic violence incident. There is no information in the PSR that 

supports the district court’s statements at sentencing that “it’s interesting to 

the Court that in Clarksdale the witnesses seem to be afraid to come in and 

testify. It’s not that you haven’t been charged with things, such as armed 

robbery. And then the witnesses don’t show up for trial.” The district court 

also concluded at sentencing that there was “evidence of intimidation of 

witnesses,” while the PSR contained information that Johnson threatened one 

victim of misdemeanor domestic violence while he was detained in the back of 

a police car. That is not evidence of intimidation of more than one witness, nor

does it relate to the dismissal of an armed robbery charge due to the failure of 

witnesses to appear.

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We conclude that the failure to disclose in the PSR information about 

witness intimidation, if any, in connection with either or both of the dismissed 

armed robbery charges, and the district court’s reliance on witness 

intimidation in connection with a dismissed armed robbery charge was error. 

The United States Probation Office acts as an arm of the court when it prepares 

PSRs and sentencing recommendations.14 The district court expressly relied, 

in part, on the Recommendation as providing evidence of witness intimidation 

to justify an above-guidelines sentence. Witness intimidation would be a 

“circumstance[] affecting the defendant’s behavior that may be helpful in 

imposing [the] sentence or in correctional treatment,”15 and the allegations and 

any evidence of such intimidation should have been included in the PSR and 

disclosed to Johnson and his counsel well in advance of the sentencing hearing. 

In some circumstances, an error is “evident from a plain reading of the 

statute and thus, is obvious.”16 The error is evident here. Rule 32(d)(2) 

mandates that the PSR “must also contain . . . any circumstances affecting the 

defendant’s behavior that may be helpful in imposing [the] sentence or in 

correctional treatment.”17 While we recognize there is an element of judgment 

in determining what information “may be helpful in imposing [the] sentence,” 

in the present case, the likelihood of witness intimidation was an important 

factor in the probation office’s sentencing recommendation. The information 

and conclusions should have been disclosed in the PSR as required by Rule 

32(d)(2), and that disclosure should have been made at least 35 days prior to 

sentencing in compliance with Rule 32(e)(2).

14 Rosales-Mireles v. United States, 138 S. Ct. 1897, 1904 (2018) (citing MolinaMartinez v. United States, 136 S. Ct. 1338, 1342 (2016)). 

15 See FED. R. CRIM. P. 32(d)(2)(A).

16 United States v. Aderholt, 87 F.3d 740, 744 (5th Cir. 1996). 

17 FED. R. CRIM. P. 32(d)(2).

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Johnson has also shown that the error affected his substantial rights. To 

satisfy the third prong, the defendant ordinarily must show “a reasonable 

probability that, but for the error, the outcome of the proceeding would have 

been different.”18 The district court expressly relied on the failure of witnesses 

to appear and testify at a trial on an armed robbery charge and “evidence of 

intimidation of witnesses” in imposing its above-guidelines sentence.

To be sure, there are independent reasons to support the district court’s 

sentence, wholly apart from any witness intimidation that might have occurred 

in connection with the dismissed armed robbery charges. In its written 

justification, the district court adopted the description in the Recommendation 

that the defendant’s pattern of criminal behavior beginning in 2003 and 

convictions for which no criminal history points were allocated justified an 

upward variance to ensure the sentence “adequately promotes respect for the 

law, provides just punishment for the offense, affords adequate 

deterrence . . . and protects the public from the crimes of the defendant.” The 

record supports the district court’s assessment in those respects. However, 

based on the district court’s statements at the sentencing hearing, there is a 

reasonable probability that its sentence would have been different had the 

district court not relied on its assessment of witness intimidation with respect 

to the dismissed armed robbery charges in choosing the sentence to be 

imposed.19

Because Johnson has satisfied the first three prongs of plain error 

review, we have discretion to correct the error if it “seriously affect[s] the 

fairness, integrity, or public reputation of judicial proceedings.”20 Like 

18 Rosales-Mireles, 138 S. Ct. at 1904-05 (internal quotation marks omitted) (quoting 

Molina-Martinez, 136 S. Ct. at 1338). 

19 See United States v. Davila, 569 U.S. 597, 612 (2013).

20 United States v. Olano, 507 U.S. 725, 736 (1993) (alteration in original) (quoting 

United States v. Atkinson, 297 U.S. 157, 160 (1936)). 

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guidelines miscalculations, the undisclosed facts “ultimately result from 

judicial error.”21 The “public legitimacy of our justice system relies on 

procedures that are neutral, accurate, consistent, trustworthy, and fair.”22 The 

public reputation of judicial proceedings would be rightly diminished if we 

allowed such errors to go uncorrected.

We are cognizant that Johnson has not argued to this court that the 

allegations of witness intimidation are untrue. He has had sufficient notice 

since sentencing and has not contended that, given the opportunity, he would 

present evidence that there was no witness intimidation. Nevertheless, the 

district court’s justification for an upward variance from the guidelines 

requires a sufficient evidentiary basis, and in the present record, there is no 

evidence of intimidation of witnesses in connection with the dismissed armed 

robbery charges.23 There is only evidence that Johnson intimidated a witness 

after he was detained for a domestic violence offense.

The district court committed significant procedural error in assessing its 

sentence. The use of undisclosed facts to justify an above-guidelines sentence 

seriously affects the fairness, integrity, and public reputation of judicial 

proceedings.24 Because we determine that Johnson’s sentencing violated 

Criminal Rule 32, we do not reach Johnson’s constitutional claims. 

* * *

Johnson’s sentence is VACATED, and we REMAND to the district court 

for resentencing.

21 See Rosales-Mireles, 138 S. Ct. at 1908. 

22 Id. (internal quotation marks and citation omitted). 

23 See United States v. Caldwell, 448 F.3d 287, 290 (5th Cir. 2006) (citing United States 

v. Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990)).

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

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