United States v. Johnson , 233 F. App'x 290 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4882
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JEFFREY JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (7:01-cr-00005-F)
Submitted: April 6, 2007 Decided: May 29, 2007
Before WILKINSON, MOTZ, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, Raleigh, North Carolina, for
Appellant. George E. B. Holding, United States Attorney, Anne M.
Hayes, Christine Witcover Dean, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jeffrey Johnson appeals his twenty-four month term of
imprisonment imposed after the district court revoked his
supervised release. Johnson challenges his sentence on the ground
that the length of his revocation sentence is unreasonable.* We
affirm.
In 2001, Johnson pleaded guilty to making threatening
telephone calls in interstate commerce, in violation of 18 U.S.C.
§ 875(c) (2000). The district court sentenced him to forty-one
months’ imprisonment, a three-year term of supervised release, and
ordered payment of a $2150 fine. The district court imposed a
number of conditions on Johnson’s supervised release. After
serving his term of imprisonment, Johnson was released from prison
and began his thirty-six month term of supervised release, under
the supervision of the United States Probation Office.
On June 2, 2006, the probation officer filed a motion
seeking revocation of Johnson’s supervised release, alleging that:
(1) from February 2005 until May 2005 Johnson associated with a
convicted felon, in violation of a condition of supervised release;
(2) after October 2005 Johnson failed to provide his probation
officer with verification of his participation in an outpatient sex
offender treatment program, as required by a condition of his
*
Johnson does not challenge the district court’s decision to
revoke his supervised release.
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supervised release; (3) on November 14, 2005, Johnson was arrested
for stalking and failed to notify his probation officer within 72
hours of his arrest, as required by his conditions of supervised
release; (4) on March 30, 2006, Johnson was convicted in Virginia
state court of stalking and was sentenced to twelve months in the
Virginia Department of Corrections, with six months of the term
suspended; (5) Johnson failed to make scheduled monthly payments
toward his fine; and (6) Johnson failed to answer truthfully
inquiries made by the probation officer regarding his job. On the
worksheet attached to the motion for revocation, the probation
officer determined that the criminal conduct was a Grade B
violation, and the other violations were Grade C violations. The
probation officer calculated that the range of imprisonment
suggested by the policy statements in Chapter Seven of the U.S.
Sentencing Guidelines Manual (“USSG”), was twelve to eighteen
months, based on Johnson’s having committed a Grade B violation and
having a criminal history category of IV. USSG § 7B1.4(a), p.s.
(Revocation Table).
At the revocation hearing, Johnson admitted five of the
six allegations against him listed in the motion for revocation,
denying only that he failed to answer truthfully to inquiries made
by his probation officer. The district court concluded that
Johnson violated the conditions of his supervised release based on
the five admitted violations alleged in the motion for revocation;
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specifically, criminal conduct, failing to participate in a mental
health program, failing to pay a monetary obligation, criminal
association, and failing to notify his probation officer within 72
hours of his arrest. The district court determined that the
offense was a Grade B violation and Johnson’s criminal history
category was IV, and the court calculated the guideline
imprisonment range to be twelve to eighteen months. The maximum
statutory term of imprisonment the district court could have
imposed in this case was two years. 18 U.S.C. § 3583(e)(3) (2000).
After stating that it had considered the policy statements set
forth in Chapter Seven of the Guidelines, the district court
sentenced Johnson to twenty-four months’ imprisonment.
Johnson’s sole issue on appeal is that the district
court’s sentence above the advisory sentencing range of twelve to
eighteen months to the statutory maximum of twenty-four months is
unreasonable. Given that Johnson failed to object to his sentence
in the district court, this court reviews his sentence for plain
error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S.
725, 731-32 (1993). We review revocation sentences to determine
whether they are “plainly unreasonable” with regard to those 18
U.S.C.A. § 3553(a) factors applicable to supervised release
revocation sentences. United States v. Crudup, 461 F.3d 433, 437
(4th Cir. 2006). We accord broad discretion to a district court to
revoke supervised release and impose a term of imprisonment up to
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the statutory maximum. Id. at 440 (citing United States v. Lewis,
424 F.3d 239, 244 (2d Cir. 2005)).
While Johnson cites to United States v. Moreland, 437
F.3d 424 (4th Cir.), cert. denied, 126 S. Ct. 2054 (2006), in
support of his assertion that the district court erred because it
did not articulate the reasons for the sentence it imposed and
failed to tie the basis for its “variance” to the § 3553(a)
factors, Moreland does not apply in revocation cases because
Chapter Seven, unlike the other chapters in the sentencing
guidelines, does not contain any guidelines, but rather policy
statements. See United States v. Davis, 53 F.3d 638, 640 n.6 (4th
Cir. 1995) (addressing the nature of the Chapter Seven policy
statements); see also Crudup, 461 F.3d at 439 (a court’s statement
of its reasons for imposing a sentence after revoking a term of
supervised release need not be as specific as is required for
departing from the now advisory guidelines).
Here, while Johnson was sentenced above the high end of
the applicable advisory guideline range, his sentence did not
exceed the statutory maximum of two years. The district court
sentenced Johnson after hearing from Johnson, Johnson’s counsel,
and the probation officer, and following Johnson’s admission that
he had committed five violations of the conditions of his
supervised release, including having been convicted of other
criminal conduct and not attending mental health treatment in a sex
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offender program. The district court explicitly stated that it had
considered the policy statements on revocation contained in Chapter
Seven in imposing the twenty-four month sentence. The issues were
fully presented for the district court’s determination, which
further supports the conclusion that the court considered all the
appropriate factors. Moreover, the district court’s consideration
of the evidence and the appropriate statutory factors is implicit
in the court’s ultimate ruling. See, e.g., Davis, 53 F.3d at 642.
Accordingly, we find that Johnson’s sentence was not
plainly unreasonable. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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