United States v. Johnston , 405 F. App'x 787 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4043
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MAURICE RAYMOND JOHNSTON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. James C. Fox, Senior
District Judge. (4:07-cr-00071-F-1)
Submitted: November 22, 2010 Decided: December 20, 2010
Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Jennifer P. May-
Parker, Eric D. Goulian, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maurice Raymond Johnston appeals his sentence of
eighty-seven months in prison after pleading guilty to
possession of a firearm by a convicted felon in violation of 18
U.S.C. §§ 922(g)(1), 924 (West 2000 & Supp. 2010). On appeal,
he contends that the district court committed procedural error
by failing to adequately explain its decision to reject his
request for a within-Guidelines sentence and instead to impose a
one-level upward departure to Johnston’s criminal history
category because it under-represented Johnston’s criminal
history. We affirm.
This court reviews for abuse of discretion sentences
imposed by a district court. ∗ Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th
Cir.), cert. denied, 130 S. Ct. 290 (2009). A sentence is
procedurally unreasonable when a district court commits
“significant procedural error,” including “failing to adequately
explain the chosen sentence.” Gall, 552 U.S. at 51. Thus, the
sentencing court “‘must state in open court the particular
∗
The Government argues that Johnston waived this ground at
sentencing, or else failed to preserve it. Review of the record
belies this claim. Additionally, defense counsel’s arguments
corresponded sufficiently with the statutory factors in 18
U.S.C. § 3553(a)(1)-(2) (2006) to preserve the issue of whether
the district court adequately explained its sentence. See
United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010).
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reasons supporting its chosen sentence.’” United States v.
Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting 18 U.S.C.
§ 3553(c) (2006)).
A district court’s explanation “need not be elaborate
or lengthy.” Id. at 330. Instead, it need only show “‘that
[the district court] has considered the parties’ arguments and
has a reasoned basis for exercising [its] own legal
decisionmaking authority.’” United States v. Engle, 592 F.3d
495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551
U.S. 338, 356 (2007)) (alterations in original), cert. denied,
__ S. Ct. __, 2010 WL 2345029 (U.S. Oct. 4, 2010) (No. 09-1512).
The court need not explicitly reference § 3553(a) or discuss
every factor on the record. United States v. Johnson, 445 F.3d
339, 345 (4th Cir. 2006). An explanation is adequate when it
“allow[s] for meaningful appellate review and . . . promote[s]
the perception of fair sentencing.” Gall, 552 U.S. at 50.
Johnston contends that his sentence must be vacated
because the district court did not explain its reasons for
rejecting his arguments in favor of a within-Guidelines
sentence. The Government contends that no error occurred. Our
review of the record convinces us the Government is correct.
Both Johnston and his attorney offered reasons for the district
court to impose a within-Guidelines sentence, including the
nature and circumstances of Johnston’s offense and his history
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and characteristics. The district court responded to Johnston’s
request with a recitation of Johnston’s criminal history,
concluding “that the criminal history category of IV grossly
under represents your propensity for violence and high risk to
commit additional crimes.” (J.A. 84). The record demonstrates
that the district court determined that Johnston’s history of
violent and drug-related crimes and institutional offenses,
particularly a 2001 conviction for discharging a shotgun into an
occupied vehicle, outweighed any mitigating factors. We discern
no basis to question the propriety of the court’s exercise of
its discretion.
We therefore affirm the district court’s judgment. 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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