US v. Jermaine Johnson, No. 10-4454 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4454 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:06-cr-00006-BEL-1) Submitted: December 1, 2010 Decided: December 17, 2010 Before DUNCAN, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland, for Appellant. Albert David Copperthite, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Appellant Jermaine Johnson pled guilty to one count of possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a) (2006). After determining Johnson qualified for the career offender enhancement pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2006), the district court sentenced Johnson to 168 months imprisonment. Counsel has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), indicating that this court should affirm the district court s judgment, but explaining that Johnson wishes to question the reasonableness of his sentence. moved to Johnson withdraw has not from filed further a pro Counsel has also representation Johnson. supplemental se of brief despite receiving notice that he may do so, and the Government declined to file a responsive brief. Because we conclude the district court committed no reversible error in this case, we affirm its judgment. This court reviews a district court s sentence reasonableness under an abuse-of-discretion standard. for Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, requires 511 F.3d appellate 468, 473-74 (4th consideration of Cir. both substantive reasonableness of a sentence. 2007). This review the procedural and Gall, 552 U.S. at 51. In determining procedural reasonableness, this court considers 2 whether the district court properly calculated the defendant s advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently explained Regardless of whether the below, or within-Guidelines record an the selected individualized district court sentence, assessment facts of the case before it. sentence. imposes it must based on an place the Id. above, on the particular United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009) (internal quotation marks omitted). Finally, this court reviews the substantive reasonableness of the sentence, examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a). United States Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). sentence this imposed court reasonable. 2008). is within considers it the appropriate Guidelines on appeal be to v. If the range, presumptively United States v. Go, 517 F.3d 216, 218 (4th Cir. This presumption may be rebutted by a showing that the sentence is unreasonable when measured against the § 3553(a) factors. United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir. 2006) (internal quotation marks omitted). Johnson s argument that his classification as a career offender overrepresents the seriousness of his offense has no 3 merit in light of his robust criminal history. Furthermore, Johnson cannot benefit from Amendment 706 to the United States Sentencing career Guidelines offender because status attributable to him. his rather sentence than the was based quantity on of his cocaine See United States v. Munn, 595 F.3d 183, 188 (4th Cir. 2010) (A sentence may not be reduced pursuant to Amendment 706 if the defendant seeking the reduction sentenced pursuant to the Career Offender Provision. ). we conclude the district Guidelines range. court provided court properly calculated was Thus, Johnson s The record also establishes that the district an individualized analysis of the § 3553(a) factors as they applied to Johnson s circumstances and analyzed the arguments conclude presented Johnson s by the parties. within-Guidelines Accordingly, sentence is we both procedurally and substantively reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court s judgment. At this juncture, we also deny counsel s motion to withdraw from further representation of Johnson. Rather, 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 4 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 before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 5
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