IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

No. 17-60852 FILED April 21, 2020 Lyle W. Cayce UNITED STATES OF AMERICA, Clerk

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. Case: 17-60852 Document: 00515389531 Page: 2 Date Filed: 04/21/2020

No. 17-60852 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). 2 Case: 17-60852 Document: 00515389531 Page: 3 Date Filed: 04/21/2020

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