United States v. David Johnson ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4519
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID DAMOND JOHNSON, a/k/a Double Up,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Columbia. Cameron McGowan Currie, Senior District Judge. (3:09-cr-00826-CMC-9)
Submitted: April 30, 2020 Decided: May 4, 2020
Before WILKINSON, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina,
for Appellant. Christopher Dolan Taylor, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
David Damond Johnson appeals the 37-month sentence imposed upon revocation
of his supervised release. Counsel has filed a brief pursuant to Anders v. California, 386
U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning
whether Johnson’s revocation sentence is plainly unreasonable. Although informed of his
right to file a pro se supplemental brief, Johnson has not done so. The Government has
declined to file a response brief. We affirm.
“A district court has broad discretion when imposing a sentence upon revocation of
supervised release. We will affirm a revocation sentence if it is within the statutory
maximum and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th
Cir. 2013) (citation and internal quotation marks omitted). “[W]e first consider whether
the sentence imposed is procedurally or substantively unreasonable.” Id. Only when the
sentence is unreasonable will we determine whether the sentence “is plainly so.” Id.
(internal quotation marks omitted).
“A revocation sentence is procedurally reasonable if the district court adequately
explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding
Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2018)] factors.”
United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnote omitted); see 18 U.S.C.
§ 3583(e) (2018) (listing relevant factors). “[A] revocation sentence is substantively
reasonable if the court sufficiently states a proper basis for its conclusion that the defendant
should receive the sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal
quotation marks omitted). “A sentence within the policy statement range is presumed
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reasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal quotation
marks omitted).
In fashioning an appropriate sentence, “the court should sanction primarily the
defendant’s breach of trust, while taking into account, to a limited degree, the seriousness
of the underlying violation and the criminal history of the violator.” USSG ch. 7, pt.
A(3)(b); see Webb, 738 F.3d at 641. “A court need not be as detailed or specific when
imposing a revocation sentence as it must be when imposing a post-conviction sentence,
but it still must provide a statement of reasons for the sentence imposed.” United States v.
Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation marks omitted). An
explanation is sufficient if we can determine “that the sentencing court considered the
applicable sentencing factors with regard to the particular defendant before it and also
considered any potentially meritorious arguments raised by the parties with regard to
sentencing.” United States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (alterations and
internal quotation marks omitted).
While the court must consider certain factors enumerated under § 3553(a),
supervised release revocation proceedings are governed by 18 U.S.C. § 3583(e), which
excludes consideration of “the need for the sentence . . . to reflect the seriousness of the
offense, to promote respect for the law, and to provide just punishment for the offense.”
18 U.S.C. § 3553(a)(2)(A); see 18 U.S.C. § 3583(e). However, “mere reference to such
considerations does not render a revocation sentence procedurally unreasonable when
those factors are relevant to, and considered in conjunction with, the enumerated § 3553(a)
factors.” Webb, 738 F.3d at 642.
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We find no unreasonableness, plain or otherwise, in Johnson’s sentence, which was
within the properly calculated policy statement range. The district court discussed the
nature and seriousness of Johnson’s offense, reviewed his history and characteristics,
considered Johnson’s breach of the court’s trust and the need to protect the public from
Johnson, and did not unduly rely on impermissible factors. Although the court did not
explicitly address some of Johnson’s arguments in mitigation, our review of the
proceedings show that the court considered the arguments and did not find them persuasive.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious issues 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
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