United States v. Johnson , 54 F. App'x 390 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4917
MARVIN JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Raleigh.
Terrence W. Boyle, Chief District Judge.
(CR-95-123)
Argued: October 31, 2002
Decided: January 8, 2003
Before TRAXLER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Thomas Peter McNamara, Federal Public Defender,
Raleigh, North Carolina, for Appellant. Anne Margaret Hayes, Assis-
tant United States Attorney, Raleigh, North Carolina, for Appellee.
ON BRIEF: Stephen C. Gordon, Assistant Federal Public Defender,
Raleigh, North Carolina, for Appellant. John Stuart Bruce, United
States Attorney, Scott L. Wilkinson, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Marvin L. Johnson appeals the district court’s revocation of his
term of supervised release and imposition of a fifty-month prison sen-
tence. Finding no error, we affirm.
I.
On July 18, 1995, Johnson was indicted along with 21 others on
charges of conspiracy and possession with intent to distribute cocaine
base, in violation of 21 U.S.C.A. §§ 846 and 841(a)(1) (West 1999).
Upon his guilty plea to the conspiracy offense, Johnson was sen-
tenced to a prison term of 292 months and a supervised release term
of 60 months. The government thereafter filed a motion to reduce
Johnson’s sentence to reflect substantial assistance he provided. See
Fed. R. Crim. P. 35(b). The court reduced Johnson’s prison sentence
to 60 months, but left all other conditions in effect. Johnson left
prison on December 4, 1998, and began his term of supervised
release.
Seven months later, as a result of a gambling charge, Johnson’s
supervision was modified to include three weekends in jail. The court
also directed Johnson to refrain from gambling and frequenting places
where illegal alcoholic beverages were used or sold. In October 2000,
the district court was notified that Johnson had twice tested positive
for cocaine and marijuana. Again, the court modified Johnson’s
supervision — this time to include substance abuse treatment.
Although he completed the program, Johnson tested positive for
cocaine use during three subsequent urine screens: April 27, June 12,
and June 25, 2001. The district court was again alerted and subse-
quently modified Johnson’s supervision to include a 90-day halfway
house placement. Johnson entered the Cavalcorp Community Sanc-
tion Center in August 2001. During his stay at Cavalcorp, Johnson
UNITED STATES v. JOHNSON 3
was cited for four disciplinary infractions, including failure to per-
form an assigned chore, repeated incidents of unsanitary deportment,
and insolence. Having accrued other violations, including failure to
abide by dormitory restrictions, illicit possession of a cell phone, and
further acts of insolence toward the Cavalcorp staff, Johnson was ter-
minated from the program.
The United States Probation Office filed a motion to revoke John-
son’s supervision on October 22, 2001, based on his failure to fulfill
the requirements of his community corrections placement as required
by the terms and conditions of his supervised release. The motion
described Johnson’s gambling, his repeated drug use, his failure to
comply with the rules at Cavalcorp, and his dismissal from the pro-
gram. Johnson appeared before the district court on November 5,
2001. A supervised release worksheet prepared by the Probation
Office for the revocation hearing characterized Johnson as having
committed a Grade C violation, listed his criminal history category as
VI, and noted that the range of imprisonment suggested under
U.S.S.G. § 7B1.4(a) was 8-14 months.
At the hearing, Johnson admitted the violation. The court probed
Johnson to determine whether he had anything he wanted to say,
reminding Johnson that in a letter he sent after his initial sentencing,
Johnson had complained that he was unaware that he could "tell [the
judge] what [he] wanted to say about [his] sentence." J.A. 24. Johnson
then apologized for "having to come back through the system again."
J.A. 24. The judge then went over with Johnson the initial sentence
of 292 months, the reduction to 60 months, and the actual time John-
son had served, which amounted to around two years. The court then
heard from the probation officer, who described Johnson as having
been "borderline compliant," recounted having "sent three modifica-
tions" to the judge because of Johnson’s various violations, and noted
that Johnson had refused to follow the instructions of the Cavalcorp
program from which he was dismissed. J.A. 25. The probation officer
also described Johnson’s persistent trouble with cocaine and noted
that after Johnson was discharged from the Cavalcorp program, he
was cited for driving while impaired and driving while his license was
revoked.
The court followed up the probation officer’s remarks by asking
Johnson about a convicted drug felon with whom Johnson had been
4 UNITED STATES v. JOHNSON
associated and at whose trial Johnson had been prepared to testify.
Johnson acknowledged that the individual had received a life sen-
tence. The court once again asked Johnson if he had anything else he
wanted to add, whereupon Johnson admitted that three of the positive
drug tests referred to in the revocation motion were accurate. The
court proceeded to impose a prison term of fifty months, censuring
Johnson for reappearing in court and explaining to him that the sen-
tence was warranted because Johnson had been given the benefit of
a significant downward departure from the 292 months originally
imposed. This appeal followed.
II.
We review the reasonableness of a district court’s decision to
revoke a term of supervised release for abuse of discretion. See
United States v. Davis, 53 F.3d 638, 642-43 (4th Cir. 1995). The dis-
trict court need only find a violation of a condition of supervised
release by a preponderance of the evidence. See 18 U.S.C.A.
§ 3583(e)(3) (West 2000). Here, Johnson admitted the violation
alleged in the petition to revoke his release. Accordingly, the district
court did not abuse its discretion in revoking his release.
A sentence that falls within the range authorized by statute and
imposed upon revocation of supervised release is reviewable only if
it is "plainly unreasonable." 18 U.S.C.A. § 3742(a)(4) (West 2000).
Johnson argues that a fifty-month sentence for his violation of super-
vised release was plainly unreasonable. He complains that he commit-
ted only "a minor violation of the conditions of his supervised
release," Brief of Appellant at 9, and that he was sentenced to a term
of imprisonment which substantially exceeded the prescribed guide-
line range and which "bore absolutely no relation to the violation
alleged against" him. Brief of Appellant at 12. We disagree.
Johnson’s underlying conviction was for a Class A felony, for
which the statutory maximum sentence upon revocation was five
years incarceration. See 18 U.S.C. § 3583(e)(3) (West 2000). Under
the Guidelines, the suggested imprisonment range for a defendant
found guilty of a Grade C offense with a criminal history category of
VI is eight to fourteen months incarceration for a violation of the
terms of supervised release. See U.S.S.G. § 7B1.4(a). It is well estab-
UNITED STATES v. JOHNSON 5
lished, however, that Chapter 7 policy statements are "non-binding,
advisory guides." Davis, 53 F.3d at 642; see also United States v.
Denard, 24 F.3d 599, 602 (4th Cir. 1994). If the court has considered
the relevant factors and the applicable policy statements, the court has
the discretion to impose a sentence outside the ranges set forth in the
Guidelines. See Davis, 53 F.3d at 642.
The record clearly establishes that the court imposed a sentence
based on a review of Johnson’s conduct throughout the term of his
supervision. As the probation officer reminded the court at the hear-
ing, Johnson had been "borderline compliant" since his release, hav-
ing repeatedly violated the terms and conditions of his supervised
release. J.A. 25. As well as the initial gambling incident, the record
indicates numerous positive tests for the use of marijuana and cocaine
— before and after Johnson participated in court-approved substance
abuse treatment. With each violation, the district court made efforts
to refine Johnson’s supervision, providing him with treatment and
placement programs, instead of revoking his release, as was within
the court’s discretion. The probation officer described Johnson’s Cav-
alcorp placement as a "final attempt to assist Mr. Johnson in making
a behavioral change." J.A. 19. Johnson does not dispute that he was
terminated from the program only after four incident reports were
filed against him. It took numerous violations within that one program
— including his insolent treatment of the program supervisor —
before he was asked to leave. Although he was encouraged to seek
drug treatment while participating in the Cavalcorp program, he
resisted; and, upon his termination from the center, he was charged
with driving while impaired and driving with a revoked license. The
record clearly demonstrates that the Probation Office and the district
court made considerable attempts to assist Johnson in modifying his
behavior and avoiding more prison time. Although Johnson acknowl-
edged these numerous efforts at the revocation hearing and apolo-
gized for not having taken advantage of them, this does not change
the fact that Johnson resisted the government’s repeated efforts at
assistance as they were made.
Johnson also argues that the judge punished him merely for appear-
ing before him — suggesting that any violation would have led to the
severe punishment he received. As described above, the record tells
a different story. In fact, the court showed notable forbearance on
6 UNITED STATES v. JOHNSON
prior occasions by repeatedly amending the terms of Johnson’s super-
vised release and reorienting it to better assist Johnson in rehabilita-
tion. By contrast, Johnson himself has demonstrated what amounts to
perpetual indifference to the numerous advantages and accommoda-
tions he has received. Johnson’s record shows that he has his own
conduct to blame for both the numerous grounds for and substantial
scope of that departure.
Moreover, the commentary to the Guidelines specifically provides
that "[w]here the original sentence was the result of a downward
departure (e.g., as a reward for substantial assistance) . . . an upward
departure may be warranted." U.S.S.G. § 7B1.4, comment. (n.4).
Johnson was originally sentenced to 292 months imprisonment for
pleading guilty to participation in a large drug conspiracy. As a result
of the downward departure for his substantial assistance and credits
Johnson earned while incarcerated, Johnson served only about two
years in prison. The fact that Johnson had provided substantial assis-
tance to win the departure was obvious even at the revocation hearing,
where the court and Johnson spoke about the drug dealer against
whom Johnson had been prepared to testify. Just as obviously, the
court bore in mind the life sentence imposed upon Johnson’s former
associate and the substantial sentence Johnson had avoided by his ini-
tial willingness to cooperate. That the court was unwilling to continue
to accommodate Johnson’s repeated failure to comply with the terms
of his supervised release and instead decided to impose a steep sen-
tence was clearly within its discretion and not plainly unreasonable.
III.
Given the facts of this case and the nature of Johnson’s conduct,
we do not believe that the fifty-month sentence imposed by the dis-
trict court was plainly unreasonable. Consequently, we affirm John-
son’s sentence.
AFFIRMED