United States v. David Johnson

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 4, 2020
• Docket: 19-4519
• Status: Unpublished

Opinion

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4519

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DAVID DAMOND JOHNSON, a/k/a Double Up,

Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:09-cr-00826-CMC-9)

Submitted: April 30, 2020 Decided: May 4, 2020

Before WILKINSON, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant. Christopher Dolan Taylor, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

David Damond Johnson appeals the 37-month sentence imposed upon revocation

of his supervised release. Counsel has filed a brief pursuant to Anders v. California, 386

U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning

whether Johnson’s revocation sentence is plainly unreasonable. Although informed of his

right to file a pro se supplemental brief, Johnson has not done so. The Government has

declined to file a response brief. We affirm.

“A district court has broad discretion when imposing a sentence upon revocation of

supervised release. We will affirm a revocation sentence if it is within the statutory

maximum and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th

Cir. 2013) (citation and internal quotation marks omitted). “[W]e first consider whether

the sentence imposed is procedurally or substantively unreasonable.” Id. Only when the

sentence is unreasonable will we determine whether the sentence “is plainly so.” Id.

(internal quotation marks omitted).

“A revocation sentence is procedurally reasonable if the district court adequately

explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding

Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2018)] factors.”

United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnote omitted); see 18 U.S.C.

§ 3583(e) (2018) (listing relevant factors). “[A] revocation sentence is substantively

reasonable if the court sufficiently states a proper basis for its conclusion that the defendant

should receive the sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal

quotation marks omitted). “A sentence within the policy statement range is presumed

2 reasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal quotation

marks omitted).

In fashioning an appropriate sentence, “the court should sanction primarily the

defendant’s breach of trust, while taking into account, to a limited degree, the seriousness

of the underlying violation and the criminal history of the violator.” USSG ch. 7, pt.

A(3)(b); see Webb, 738 F.3d at 641. “A court need not be as detailed or specific when

imposing a revocation sentence as it must be when imposing a post-conviction sentence,

but it still must provide a statement of reasons for the sentence imposed.” United States v.

Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation marks omitted). An

explanation is sufficient if we can determine “that the sentencing court considered the

applicable sentencing factors with regard to the particular defendant before it and also

considered any potentially meritorious arguments raised by the parties with regard to

sentencing.” United States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (alterations and

internal quotation marks omitted).

While the court must consider certain factors enumerated under § 3553(a),

supervised release revocation proceedings are governed by 18 U.S.C. § 3583(e), which

excludes consideration of “the need for the sentence . . . to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment for the offense.”

18 U.S.C. § 3553(a)(2)(A); see 18 U.S.C. § 3583(e). However, “mere reference to such

considerations does not render a revocation sentence procedurally unreasonable when

those factors are relevant to, and considered in conjunction with, the enumerated § 3553(a)

factors.” Webb, 738 F.3d at 642.

3 We find no unreasonableness, plain or otherwise, in Johnson’s sentence, which was

within the properly calculated policy statement range. The district court discussed the

nature and seriousness of Johnson’s offense, reviewed his history and characteristics,

considered Johnson’s breach of the court’s trust and the need to protect the public from

Johnson, and did not unduly rely on impermissible factors. Although the court did not

explicitly address some of Johnson’s arguments in mitigation, our review of the

proceedings show that the court considered the arguments and did not find them persuasive.

In accordance with Anders, we have reviewed the entire record in this case and have

found no meritorious issues for appeal. We therefore affirm the district court’s judgment.

This court requires that counsel inform Johnson, in writing, of the right to petition the

Supreme Court of the United States for further review. If Johnson requests that a petition

be filed, but counsel believes that such a petition would be frivolous, then counsel may

move in this court for leave to withdraw from representation. Counsel’s motion must state

that a copy thereof was served on Johnson.

We dispense with oral argument because the facts and legal contentions are

adequately presented in the materials before this court and argument would not aid the

decisional process.

AFFIRMED