United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4221
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANDREW JOHNSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. William L. Osteen,
Jr., District Judge. (1:09-cr-00019-WO-1)
Submitted: August 3, 2010 Decided: August 12, 2010
Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Louis C. Allen, Federal Public Defender, Greensboro, North
Carolina, for Appellant. Anna Mills Wagoner, United States
Attorney, John W. Stone, Jr., First Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Andrew Johnson, Jr., appeals his 151 month sentence
for one count of bank robbery in violation of 18 U.S.C.
§ 2113(a) (2006). For the reasons that follow, we affirm.
Johnson, who had been recently released from a 17 year
federal bank robbery sentence at the time he committed the
instant offense, argues on appeal that his sentence was
unreasonable and not in accord with 18 U.S.C. § 3553(a) (2006).
We disagree.
A sentence is reviewed for reasonableness under an
abuse of discretion standard. Gall v. United States, 552 U.S.
38, 51 (2007). This review requires consideration of both the
procedural and substantive reasonableness of a sentence. Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court properly calculated
the defendant’s advisory Guideline range, this court must decide
whether the district court considered the § 3553(a) factors,
analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Lynn, 592 F.3d at
575-76; see United States v. Carter, 564 F.3d 325, 330
(4th Cir. 2009) (holding that, while the “individualized
assessment need not be elaborate or lengthy, . . . it must
provide a rationale tailored to the particular case . . . and
[be] adequate to permit meaningful appellate review”). Properly
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preserved claims of procedural error are subject to harmless
error review. Lynn, 592 F.3d at 576.
This court next “consider[s] the substantive
reasonableness of the sentence imposed.” Gall, 552 U.S. at 51.
At this stage, the court “take[s] into account the totality of
the circumstances, including the extent of any variance from the
Guidelines range.” Id. “If the district court decides to
impose a sentence outside the Guidelines range, it must ensure
that its justification supports ‘the degree of the variance.’”
United States v. Evans, 526 F.3d 155, 161 (4th Cir.), cert.
denied, 129 S. Ct. 476 (2008) (quoting Gall, 552 U.S. at 51).
Johnson claims that the district court erred in
treating him as a “de facto” career offender, and applying the
Guidelines range that would apply if the Guidelines considered
him a career offender. This court has recently held that a
district court may treat a defendant as a de facto career
criminal in a factual context similar to Johnson’s. See United
States v. Myers, 589 F.3d 117, 126 (4th Cir. 2009) (affirming de
facto career criminal designation for defendant with multiple
past convictions that were not calculated towards criminal
history category because they were committed prior to the
defendant serving a lengthy prison sentence). Here, Johnson had
similarly been released from prison following a lengthy
sentence, and as a result, his numerous past convictions were
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not counted towards his criminal history category. See U.S.
Sentencing Guidelines Manual § 4B1.3(a)(1) (2009). We find the
district court did not err in departing to a career criminal
Guidelines range.
Johnson further challenges the sentence as
substantively unreasonable because he claims it is more severe
than necessary under § 3553(a). We have reviewed the record,
and find that the district court considered Johnson’s arguments,
offered a thorough explanation for its sentence, and imposed a
sentence that, although above the Guidelines, was not
unreasonable.
Accordingly, we affirm the judgment of the district
court. 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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