US v. Andrew Johnson, Jr., No. 10-4221 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4221 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ANDREW JOHNSON, JR., Defendant -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 Affirmed by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 § 2113(a) (2006). bank robbery in violation of 18 U.S.C. For the reasons that follow, we affirm. Johnson, who had been recently released from a 17 year federal bank robbery instant offense, sentence argues on at the appeal time committed the his that he sentence was unreasonable and not in accord with 18 U.S.C. § 3553(a) (2006). We disagree. A sentence is reviewed abuse of discretion standard. 38, 51 (2007). for reasonableness under an Gall v. United States, 552 U.S. 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 analyzed the district the court arguments considered presented the by § 3553(a) the sufficiently explained the selected sentence. 575-76; see United (4th Cir. 2009) States (holding v. that, factors, parties, and Lynn, 592 F.3d at Carter, 564 F.3d 325, 330 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 ). 2 Properly preserved claims of procedural error are subject to harmless error review. Lynn, 592 F.3d at 576. This court next consider[s] reasonableness of the sentence imposed. the substantive 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. district court may This court has recently held that a treat a defendant as a de facto criminal in a factual context similar to Johnson s. career 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 history category that were because not they calculated were committed defendant serving a lengthy prison sentence). similarly been released from towards prison prior criminal to the Here, Johnson had following a lengthy sentence, and as a result, his numerous past convictions were 3 not counted towards his criminal history category. Sentencing Guidelines Manual § 4B1.3(a)(1) (2009). See U.S. 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. legal before We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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