United States v. William Maurice Johnson ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4672
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM MAURICE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Peter J. Messitte, Senior District
Judge. (8:12-cr-00282-PJM-1)
Submitted: February 20, 2014 Decided: February 28, 2014
Before KING, FLOYD, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Michael N. Loebl, FULCHER HAGLER LLP, Augusta, Georgia, for
Appellant. Rod J. Rosenstein, United States Attorney, Kelly O.
Hayes, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Maurice Johnson appeals the district court’s
judgment revoking his supervised release and imposing a
nine-month prison term. Johnson challenges this sentence,
arguing that it is plainly unreasonable. We affirm.
A district court has broad discretion to impose a
sentence upon revoking a defendant’s supervised release.
United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
We will affirm a sentence imposed after revocation of supervised
release if it is within the applicable statutory maximum and not
“plainly unreasonable.” United States v. Crudup, 461 F.3d 433,
437, 439-40 (4th Cir. 2006). In determining whether a
revocation sentence is plainly unreasonable, we first assess the
sentence for unreasonableness, “follow[ing] generally the
procedural and substantive considerations that we employ in our
review of original sentences.” Id. at 438.
A supervised release revocation sentence is
procedurally reasonable if the district court considered the
Sentencing Guidelines’ Chapter 7 advisory policy statements and
the 18 U.S.C. § 3553(a) (2012) factors it is permitted to
consider in a supervised release revocation case. 18 U.S.C.
§ 3583(e) (2012); Crudup, 461 F.3d at 439. Although a district
court need not explain the reasons for imposing a revocation
sentence in as much detail as when it imposes an original
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sentence, it “still must provide a statement of reasons for the
sentence imposed.” Thompson, 595 F.3d at 547 (internal
quotation marks omitted). The reasons articulated by the
district court for a given sentence need not be “couched in the
precise language of § 3553(a),” so long as the “reasons can be
matched to a factor appropriate for consideration under
[§ 3553(a)] and [were] clearly tied to [the defendant’s]
particular situation.” United States v. Moulden, 478 F.3d 652,
658 (4th Cir. 2007).
A revocation sentence is substantively reasonable if
the district court stated a proper basis for concluding the
defendant should receive the sentence imposed, up to the
statutory maximum. Crudup, 461 F.3d at 440. Only if a sentence
is found procedurally or substantively unreasonable will we
“then decide whether the sentence is plainly unreasonable.”
Id. at 439. A sentence is plainly unreasonable if it is clearly
or obviously unreasonable. Id.
In this case, there is no dispute that Johnson’s
nine-month prison sentence does not exceed the applicable
statutory maximum. 18 U.S.C. §§ 3559(a), 3583(e)(3) (2012).
The district court also considered the advisory policy statement
range of six to twelve months’ imprisonment, see U.S. Sentencing
Guidelines Manual (“USSG”) §§ 7B1.1(a)(3), (b), 7B1.4(a), p.s.
(2012), and heard argument from counsel for both parties. On
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appeal, Johnson contends that the sentence is plainly
unreasonable because the district court erred in failing to
afford him the opportunity to allocute, erroneously considered
irrelevant evidence in making its factual findings and imposing
sentence, failing to calculate the advisory policy statement
range, and failing to adequately explain its selected sentence.
After review of the parties’ briefs and the record, we conclude
that these challenges are without merit.
Because Johnson he did not object to the alleged
denial of allocution in the district court, our review is for
plain error only. United States v. Muhammad, 478 F.3d 247, 249
(4th Cir. 2007). To establish plain error, Johnson must
demonstrate that (1) the district court committed an error;
(2) the error was plain; and (3) the error affected his
substantial rights. Henderson v. United States, 133 S. Ct.
1121, 1126 (2013). Even if these requirements are met, however,
we will “exercise our discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Nicholson, 676 F.3d
376, 381 (4th Cir. 2012) (internal quotation marks omitted).
A defendant at a supervised release revocation
proceeding is entitled to “an opportunity to make a statement
and present any information in mitigation.” Fed. R. Crim. P.
32.1(b)(2)(E). This right to allocution is not satisfied by
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“[m]erely affording the Defendant’s counsel the opportunity to
speak”; instead, “[t]rial judges should leave no room for doubt
that the defendant has been issued a personal invitation to
speak prior to sentencing.” United States v. Cole, 27 F.3d 996,
998 (4th Cir. 1994) (internal quotation marks omitted).
Assuming without deciding that the district court’s
question to Johnson as to whether he had anything “new or
different” he wanted to say at the revocation hearing amounted
to a plain deprivation of Johnson’s right to allocute, we turn
to an assessment of whether the error affected Johnson’s
substantial rights. “[A] defendant [is] not prejudiced by the
denial of allocution when there was no possibility that he could
have received a shorter sentence.” Muhammad, 478 F.3d at 249.
If, however, we can identify a ground on which a lower sentence
might have been based, we may notice the error. See Cole,
27 F.3d at 999 (“When . . . the possibility remains that an
exercise of the right of allocution could have led to a sentence
less than that received, . . . fairness and integrity of the
court proceedings would be brought into serious disrepute were
we to allow the sentence to stand.”). Upon review, we conclude
that Johnson has failed to demonstrate he was prejudiced by the
district court’s failure to afford him a proper opportunity to
allocute.
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Next, Johnson argues that the district court
erroneously considered irrelevant evidence in making its factual
findings and in imposing sentence. However, because Johnson
fails to present this argument in accordance with Fed. R. App.
P. 28(a)(8)(A) (“[T]he [appellant’s] argument . . . must
contain . . . appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which the appellant relies.”), we deem it waived. Wahi v.
Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).
Finally, we reject as without merit Johnson’s argument
that the nine-month sentence is unreasonable because the
district court failed to calculate the advisory policy statement
range and provide a sufficient explanation for its sentencing
decision. It is clear from the record that the court considered
the properly-calculated policy statement range; that the court
was not the entity that calculated the range does not render the
nine-month sentence unreasonable. See Moulden, 478 F.3d at 656;
Crudup, 461 F.3d at 439. Further, in rejecting counsel’s
request for a sentence below the policy statement range, the
district court considered Johnson’s history and characteristics,
the nature and circumstances of his violative behavior, and the
need for the sentence to afford deterrence. 18 U.S.C.
§ 3553(a)(1), (2)(B). The court’s comments also indicate that
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it imposed the sentence to sanction Johnson’s breach of trust,
despite prior lenient treatment. See USSG Ch. 7, Pt. A,
introductory cmt. 3(b) (“[A]t revocation the [district] court
should sanction primarily the defendant’s breach of trust.”).
We conclude that the district court adequately
explained its rationale for imposing the nine-month prison
sentence and relied on proper considerations in doing so. Based
on the broad discretion that a district court has to revoke a
term of supervised release and impose a prison term up to and
including the statutory maximum, Johnson’s revocation sentence
is not unreasonable. Therefore, we conclude that Johnson’s
sentence is not plainly unreasonable.
Accordingly, we affirm the district court’s judgment.
We deny Johnson’s motion to expedite decision and 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
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