United States v. William Johnston

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM RAY JOHNSTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, Senior District
Judge. (1:99-cr-00472-JFM-1)
Submitted: December 14, 2012 Decided: December 27, 2012
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
James Wyda, Federal Public Defender, LaKeytria Felder, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Martin J. Clarke,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
In 2001, William Ray Johnston was sentenced to 130
months of imprisonment for being a felon in possession of a
firearm and to five years of supervised release thereafter. On
October 12, 2010, Johnston was sentenced to time served for his
first violation of supervised release, which was the five days
from October 1 to October 5, 2010. In 2012, Johnson was
convicted of subsequent release violations and was sentenced to
sixty months of imprisonment. He appeals this five-year
sentence raising two issues: (1) whether the district court
erred by imposing a sentence that exceeded the maximum term of
imprisonment allowed by statute, given its failure to account
for time served on a prior revocation; and (2) whether his
sentence was procedurally and substantively reasonable. For the
reasons that follow, we vacate and remand for resentencing.
The Government concedes that Johnston was sentenced
five days beyond the five-year maximum sentence by virtue of his
first revocation sentence. Thus, we vacate and remand for
resentencing so that Johnston’s total sentence will not be in
excess of five years. See United States v. Hergott, 562 F.3d
968, 970-71 (8th Cir. 2009) (noting under the applicable
version of 18 U.S.C. § 3583(e)(3) (2006) that the statutory
maximum term of imprisonment for revocation of supervised
release is sixty months minus any time served on previous
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revocations related to the same conviction). A sentence that
exceeds the statutory maximum is prejudicial even if only for a
minimal amount of time. Glover v. United States, 531 U.S. 198,
203 (2001).
Next, Johnston alleges that his sentence was otherwise
procedurally and substantively unreasonable. This court will
affirm a sentence imposed after revocation of supervised release
if it is within the prescribed statutory range and is not
plainly unreasonable. United States v. Crudup, 461 F.3d 433,
437 (4th Cir. 2006). We find no other reversible error and
decline to order the district court to conduct another
sentencing hearing on remand. A sixty-month sentence would be
within Johnston’s advisory Sentencing Guidelines range of 51-63
months, as argued by the Government on appeal. We find no
reason not to apply the appellate presumption of correctness
allowed for a Guidelines range sentence. Gall v. United States,
552 U.S. 38, 51 (2007).
Accordingly, we vacate and remand for resentencing
consistent with this opinion. 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.
VACATED AND REMANDED
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