United States v. Tyre Johnson

• Court: Court of Appeals for the Fourth Circuit
• Decided: December 29, 2022
• Docket: 22-4050
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4050

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

TYRE ANTOINE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. Henry E. Hudson, Senior District Judge. (3:11-cr-00214-HEH-RCY-3)

Submitted: September 30, 2022 Decided: December 29, 2022

Before WYNN and RUSHING, Circuit Judges, and TRAXLER, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Fernando Groene, FERNANDO GROENE, P.C., Williamsburg, Virginia, for Appellant. Jacqueline Romy Bechara, Alexandria, Virginia, Olivia L. Norman, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

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PER CURIAM:

Tyre Antoine Johnson pled guilty in 2011 to conspiracy to commit Hobbs Act

robbery (Count 1), in violation of 18 U.S.C. § 1951, and using, carrying, and brandishing

a firearm during and in relation to a crime of violence (Count 2), in violation of 18 U.S.C.

§ 924(c). The district court sentenced him to a total of 235 months’ imprisonment,

consisting of 151 months’ imprisonment on Count 1 and a consecutive 84 months’

imprisonment on Count 2, both run consecutively to Johnson’s undischarged state sentence

imposed for one of the robberies underlying his conviction on Count 1 (the “Undischarged

State Sentence”). Johnson appealed, and we affirmed his sentence. United States v.

Johnson, 529 F. App’x 362 (4th Cir. 2013) (No. 12-4155) (argued but unpublished)

(“Johnson I”). The district court later granted Johnson’s 28 U.S.C. § 2255 motion, vacated

his conviction and sentence on Count 2 and ordered his resentencing on Count 1. At

resentencing, the district court sentenced Johnson to 135 months’ imprisonment, with 16

months run concurrently to the Undischarged State Sentence.

Johnson now appeals his amended criminal judgment. Counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no potentially

meritorious issues for appeal but questioning whether the district court imposed a

procedurally and substantively unreasonable sentence. The Government has declined to

file a brief. Johnson was notified of his right to file a pro se supplemental brief but has not

done so. We affirm.

We review a sentence “for reasonableness, applying a deferential abuse of discretion

standard.” United States v. Morehouse, 34 F.4th 381, 387 (4th Cir. 2022) (internal

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quotation marks omitted). “[W]e must first ensure that the district court committed no

significant procedural error, such as improperly calculating the Guidelines range, selecting

a sentence based on clearly erroneous facts, or failing to adequately explain the chosen

sentence.” United States v. Williams, 5 F.4th 500, 505 (4th Cir.) (internal quotation marks

omitted), cert. denied, 142 S. Ct. 625 (2021). “A district court is required to provide an

individualized assessment based on the facts before the court, and to explain adequately

the sentence imposed to allow for meaningful appellate review and to promote the

perception of fair sentencing.” United States v. Lewis, 958 F.3d 240, 243 (4th Cir. 2020)

(internal quotation marks omitted). Although the explanation “need not be exhaustive . . .

or robotically tick through the § 3553(a) factors,” it “must be sufficient to satisfy the

appellate court that the district court has considered the parties’ arguments and has a

reasoned basis for exercising its own legal decisionmaking authority.” United States v.

Friend, 2 F.4th 369, 379 (4th Cir.) (cleaned up), cert. denied, 142 S. Ct. 724 (2021).

“If the sentence is procedurally sound, we then consider the substantive

reasonableness of the sentence, taking into account the totality of the circumstances.”

United States v. McCain, 974 F.3d 506, 515 (4th Cir. 2020) (internal quotation marks

omitted). “[A]ny sentence that is within or below a properly calculated Guidelines range

is presumptively [substantively] reasonable.” United States v. Devine, 40 F.4th 139, 153

(4th Cir. 2022) (internal quotation marks omitted). Johnson can rebut that presumption

only “by showing that the sentence is unreasonable when measured against the 18 U.S.C.

§ 3553(a) factors.” United States v. Louthian, 756 F.3d 295, 306 (4th Cir. 2014).

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We conclude that Johnson’s sentence is both procedurally and substantively

reasonable. The district court correctly calculated Johnson’s Guidelines range, provided

the parties an adequate opportunity to present arguments regarding the appropriate

sentence, and considered Johnson’s allocution. The court provided a detailed explanation

of the sentence it selected, grounded in numerous § 3553(a) factors. The court placed

reasoned emphasis on the nature and circumstances of the offense, Johnson’s history and

characteristics, and the need to promote respect for the law, to adequately deter, and to

provide just punishment. It also expressly credited Johnson’s arguments in mitigation

regarding his relative culpability, institutional record and rehabilitative efforts, and the

impact of his undischarged state sentence.

In running the sentence partially concurrently to the Undischarged State Sentence,

the district court considered the § 3553(a) factors and the relevant circumstances

surrounding the undischarged sentence. See 18 U.S.C. § 3584(b); see also U.S. Sentencing

Guidelines Manual § 5G1.3 cmt. n. 4 (2018) (discussing factors to be considered in

determining whether to impose concurrent or consecutive sentences under USSG

§ 5G1.3(d), p.s.). The court also considered the parties’ arguments on the issue and

adopted our analytical framework from Johnson I when electing to run the sentence

partially concurrent to the Undischarged State Sentence. The district court’s explanation

was adequate to support its decision to impose a partially concurrent sentence in light of

§ 3553(a). Cf. United States v. Lynn, 912 F.3d 212, 217 (4th Cir. 2019) (finding no abuse

of discretion where sentencing court “recognized its discretion to order the sentence to run

concurrently, but simply declined to exercise its discretion after considering the required

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factors”). And, in light of the district court’s thorough analysis of the relevant sentencing

factors, we conclude that Johnson fails to rebut the presumption of substantive

reasonableness accorded his within-Guidelines sentence. See Devine, 40 F.4th at 153;

Louthian, 756 F.3d at 306.

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

have found no meritorious grounds 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