United States v. Johnson

22-852
United States v. Johnson
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 14th day of June, two thousand twenty-three.
PRESENT:
RICHARD J. SULLIVAN,
BETH ROBINSON,
MARIA ARAÚJO KAHN,
Circuit Judges.
_____________________________________
UNITED STATES OF AMERICA,
Appellee,
v. No. 22-852
SHERROD JOHNSON,
Defendant-Appellant.
_____________________________________
For Defendant-Appellant: James P. Egan, Assistant Federal
Public Defender, Syracuse, NY.
For Appellee: Cyrus P. W. Rieck, Rajit S. Dosanjh,
Assistant United States Attorneys,
for Carla B. Freedman, United States
Attorney for the Northern District of
New York, Syracuse, NY.
Appeal from a judgment of the United States District Court for the Northern
District of New York (Norman A. Mordue, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
AFFIRMED.
Sherrod Johnson appeals from his conviction and sentence following his
guilty plea to two counts of possession with intent to distribute heroin, in violation
of 21 U.S.C. § 841(a)(1), (b)(1)(C), and one count of possession of a firearm in
furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The
district court sentenced Johnson to a term of eighty-one months’ imprisonment,
comprised of two concurrent terms of twenty-one months for the drug-trafficking
offenses and a consecutive term of sixty months for the firearm offense. The
district court also imposed a term of three years’ supervised release. On appeal,
Johnson contends that the sentence was both procedurally and substantively
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unreasonable. We assume the parties’ familiarity with the underlying facts,
procedural history, and issues on appeal.
First, Johnson asserts that the district court committed procedural error by
failing to adequately explain why it selected a within-Guidelines term of
imprisonment for the two drug-trafficking offenses. After considering the factors
set forth in 18 U.S.C. § 3553(a), the district court must, at the time of sentencing,
“state in open court the reasons for its imposition of the particular sentence.” 18
U.S.C. § 3553(c). Section 3553(c), however, “sets a low threshold,” with “the
requisite detail . . . differ[ing] by case.” United States v. Rosa, 957 F.3d 113, 119–20
(2d Cir. 2020). For example, “a brief statement of reasons will generally suffice”
where the parties have made “only straightforward, conceptually simple
arguments,” id. at 119 (internal quotation marks omitted), or where the district
court “decides simply to apply the Guidelines,” id. (quoting Rita v. United States,
551 U.S. 338, 356 (2007)). Similarly, adopting a defendant’s presentence report
(“PSR”) in open court has in some circumstances been held to satisfy section
3553(c)’s requirement of an in-court explanation. See, e.g., United States v. Ware,
577 F.3d 442, 452 (2d Cir. 2009) (noting that “a sentencing court may sometimes
satisfy its obligation to make findings by adopting the factual statements in the
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defendant’s [PSR]”). At bottom, the district court need only “provide some oral
account of its reasoning that would permit an understanding of how [it] weighed
the relevant considerations and selected the sentence imposed.” Rosa, 957 F.3d at
120.
Where, as here, a defendant did not object in front of the district court to the
sufficiency of its explanation under section 3553(c), we apply the plain-error
standard of review. See United States v. Villafuerte, 502 F.3d 204, 211 (2d Cir. 2007).
This means that we may not grant relief unless (1) there was error, (2) the error
was clear or obvious, rather than subject to reasonable dispute, (3) the error
affected the defendant’s substantial rights, ordinarily meaning that it affected the
outcome of the district court proceedings, and (4) the error seriously affected the
fairness, integrity, or public reputation of the judicial proceedings. See United
States v. Stevenson, 834 F.3d 80, 83 (2d Cir. 2016). Applying that standard, we detect
no clear or obvious section 3553(c) violation.
In imposing its sentence, the district court explained that it had “considered
all the pertinent information, including but not limited to . . . the addendum, the
plea agreement, the submissions by counsel, the 2021 edition of the Sentencing
Guidelines Manual, . . . the factors that are outlined in 18 U.S.C. § 3553(a),” and the
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PSR, “adopt[ing] the factual information and the Guideline applications”
contained therein “with the exception of the enhancement for reckless
endangerment during flight.” App’x at 97–98. As a result, the district court
determined that a term of twenty-one months’ imprisonment for the
drug-trafficking offenses – a term at the top of a relatively narrow Guidelines
range – was “sufficient but not greater than necessary to meet the goals of
sentencing,” specifically highlighting “the need of the sentence to, A, reflect the
seriousness of the offense, promote respect for the law, and provide just
punishment for the offense; B, afford adequate deterrence to criminal conduct; and
C, protect the public from further crimes by [Johnson].” Id. at 98. To be sure, the
district court “might have said more.” Rosa, 957 F.3d at 119 (quoting Rita, 551 U.S.
at 359). Nevertheless, we conclude that the district court’s explanation is not
plainly inadequate in light of the context and record, which “permit an
understanding” that the seriousness of the present offenses and Johnson’s criminal
history – including past convictions for serious violent conduct and recent
instances of violence toward correction officers and fellow inmates – drove the
district court’s decision. Id. at 119–20; see also Chavez-Meza v. United States, 138 S.
Ct. 1959, 1965 (2018) (“In some cases, it may be sufficient for purposes of appellate
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review that the judge simply relied upon the record, while making clear that he or
she has considered the parties’ arguments and taken account of the [section]
3553(a) factors, among others.”). 1
Second, Johnson contends that the district court substantively erred by
imposing an eighty-one-month sentence. We review a substantive-reasonableness
challenge under a “deferential abuse-of-discretion standard,” Gall v. United States,
552 U.S. 38, 41 (2007), “consider[ing] only whether the length of the sentence is
reasonable in light of the [section] 3553(a) factors,” United States v. Ceasar, 10 F.4th
66, 79 (2d Cir. 2021) (internal quotation marks omitted). While we “consider
whether [a sentencing] factor, as explained by the district court, can bear the
weight assigned it under the totality of circumstances in the case,” we do not
consider how we might have weighed particular factors ourselves. United States
v. Cavera, 550 F.3d 180, 191 (2d Cir. 2008) (en banc). In short, “we will . . . set aside
a district court’s substantive determination only in exceptional cases where the
trial court’s decision cannot be located within the range of permissible decisions.”
1
United States v. Corsey, a case upon which Johnson heavily relies, is readily distinguishable. See
723 F.3d 366 (2d Cir. 2013). There, ambiguity in the record as to whether the district court
correctly understood the Guidelines range obscured whether it properly applied the section
3553(a) factors. Id. at 375–76. Additionally, the district court failed to engage with potential
“significant issues” involving the calculation of the intended loss, making remand appropriate.
Id. at 376–77.
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Id. at 189 (emphasis and internal quotation marks omitted); see also United States v.
Muzio, 966 F.3d 61, 64 (2d Cir. 2020) (explaining that “we will set aside only those
sentences that are so shockingly high, shockingly low, or otherwise unsupportable
as a matter of law that allowing them to stand would damage the administration
of justice” (internal quotation marks omitted)).
Here, Johnson’s within-Guidelines sentence falls squarely within the range
of permissible decisions, particularly given Johnson’s criminal history and the
seriousness of the present offenses. See 18 U.S.C. § 3553(a)(1), (a)(2)(A)–(C); see also
United States v. Eberhard, 525 F.3d 175, 179 (2d Cir. 2008) (“Although we do not
presume that a Guidelines sentence is reasonable, we have recognized that in the
overwhelming majority of cases, a Guidelines sentence will fall comfortably within
the broad range of sentences that would be reasonable in the particular
circumstances.” (internal quotation marks omitted)). While Johnson emphasizes
the presence of several mitigating factors, including his untreated substance abuse,
his arguably low level of culpability, and his missed opportunity for earned time
credit due to the section 924(c) count, mere disagreement with how the district
court balanced the section 3553(a) factors is not a sufficient ground for finding an
abuse of discretion. See, e.g., United States v. Verkhoglyad, 516 F.3d 122, 131 (2d Cir.
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2008) (“[T]he weight . . . afforded any [section] 3553(a) factor is a matter firmly
committed to the discretion of the sentencing judge.” (internal quotation marks
omitted)). We therefore see no basis for questioning the substantive
reasonableness of the district court’s sentence.
We have considered Johnson’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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