Eleventh Circuit Court of Appeals - Published Opinions

Friday, October 09, 2015

Johnson: Upward variance justified by prior robberies

In U.S. v. Johnson, No. 14-13874 (Oct. 5, 2015), the Court affirmed the 102-month sentence of a defendant convicted of bank robbery. The Court affirmed the imposition of a six-level Guideline enhancement pursuant to U.S.S.G. § 2B3.1(b)(2)(B) for a firearm having been “otherwise used” during the robbery, instead of just a five-level enhancement for “brandishing” the firearm. After brandishing the pistol at the tellers, Johnson pointed the pistol at the tellers and demanded money without dye packs. Shortly thereafter, upon receiving the money and discovering that the tellers did include dye packs, Johnson stated: “I said I will kill you.” Therefore, Johnson’s use of the firearm to both implicitly and explicitly threaten the tellers amounted to “otherwise use[]” of the firearm. The Court also rejected a substantive reasonableness challenge to the upward variance from a Guideline range of 70-87 months to a sentence of 102 months. The district court reasonably found that the advisory guidelines range understated the seriousness of Johnson’s recent criminal history, which included participation in a string of eight armed robberies in a 14-month period, in which victims were held at gunpoint and feared for their lives. Johnson participated in these robberies within a couple of years of his release from federal prison on a 71-month sentence. Although Johnson was not convicted of these robberies, the district court was free to consider them under 18 U.S.C. § 3661.