United States v. Rodney Johnson, 943 F.3d 735

Rodney Johnson pleaded guilty to conspiracy to distribute fentanyl, methamphetamine, and cocaine, and to being a felon in possession of a firearm; district court imposed an upward variance to 100 months.
Revised PSR initially yielded offense level 25 and CHC IV (Guidelines 84–105 months); court sustained Johnson’s drug-quantity objection, lowering offense level to 19 (Guidelines 46–57 months), but stated the Guidelines were immaterial to the sentence it anticipated.
The district court emphasized repeated gun involvement across Johnson’s convictions and his lack of rehabilitation when announcing an upward variance.
The court had assessed two criminal-history points for a 2005 Texas unlawful-carrying conviction (90-day sentence imposed in Sept. 2005); Johnson argued those points were improper under U.S.S.G. §4A1.2(e) because the sentence was under 1 year 1 month and more than 10 years before the instant offense.
Johnson also argued the court relied on erroneous facts about his criminal history (misstating the 2006 arrest as drug-related) to justify the upward variance.
The Fifth Circuit found the CH points assignment was clear error but held Johnson failed to show the error affected his substantial rights because the court relied on factors independent of the Guidelines; the isolated misstatement about the 2006 arrest likewise did not alter the sentencing outcome. The sentence was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court plainly erred in assigning 2 criminal-history points for a 2005 weapon conviction under U.S.S.G. §4A1.2(e)	The 90-day 2005 sentence and >10-year gap mean the prior sentence is not countable, so CHC should be III and Guidelines lower	Even if the points were erroneous, the court treated the Guidelines as immaterial and based its variance on independent §3553(a) factors	Court: Assessment of the 2 points was clear error, but Johnson failed to show a reasonable probability of a lesser sentence because the court relied on independent, non-Guidelines factors; no plain-error relief granted
Whether the district court plainly erred by relying on erroneous facts about Johnson’s criminal history to justify an upward variance	The court plainly erred by stating the 2006 arrest involved drugs, implying three drug-and-gun convictions influenced the variance	The misstatement was isolated; the record (including PSR and other court statements) shows the court understood the 2006 arrest was gun-only and relied on repeated gun involvement, not mischaracterized drug convictions	Court: Single misstatement did not affect substantial rights or the sentencing outcome; no plain-error relief granted

Gall v. United States, 552 U.S. 38 (sentencing reasonableness/role of Guidelines and variance analysis)
Puckett v. United States, 556 U.S. 129 (plain-error standard requires showing of effect on substantial rights)
Molina-Martinez v. United States, 136 S. Ct. 1338 (incorrect Guidelines range can show reasonable probability of different outcome unless court relied on independent factors)
United States v. Lopez-Velasquez, 526 F.3d 804 (5th Cir. review is plain error when sentencing objections are forfeited)
United States v. Arviso-Mata, 442 F.3d 382 (application of U.S.S.G. §4A1.2(e) to prior convictions)
United States v. Mudekunye, 646 F.3d 281 (defendant must show reasonable probability of different result to satisfy plain-error third prong)
United States v. Mondragon-Santiago, 564 F.3d 357 (adoption of PSR can undercut claims that sentencing was based on erroneous facts)
United States v. Hernandez-Dominguez, [citation="729 Fed. App'x 328"] (single, unobjected-to erroneous statement at sentencing generally insufficient to show plain error)