US v. Kenneth Johnson, No. 09-4284 (4th Cir. 2011)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4284 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENNETH JOSEPH JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Charleston. David C. Norton, Chief District Judge. (2:91-cr-00529-DCN-2) Submitted: March 21, 2011 Decided: April 6, 2011 Before NIEMEYER and WYNN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. J. Christopher Mills, J. CHRISTOPHER MILLS, LLC, Columbia, South Carolina, for Appellant. William N. Nettles, United States Attorney, Jimmie Ewing, Assistant United States Attorney, Columbia, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Kenneth Joseph Johnson appeals his sixty-three month sentence imposed on revocation of supervised release. He argues that there was an insufficient factual basis for revocation and that the because district the court court s sentence failed to was consider plainly the unreasonable U.S. Sentencing Guidelines Manual Chapter 7 policy statements in formulating his within-Guidelines sentence. I. We affirm. Factual Basis This court reviews the district court s decision to revoke a defendant s discretion. United (4th Cir. 1999). supervised States v. release Pregent, for 190 an F.3d abuse of 279, 282 The district court need only find a violation of a condition of supervised release by a preponderance of the evidence. 18 U.S.C. § 3583(e)(3) States, 529 U.S. 694, 700 (2000). determinations informing occurred for clear error. the (2006); Johnson v. United This court reviews factual conclusion that a violation United States v. Carothers, 337 F.3d 1017, 1019 (8th Cir. 2003). Johnson notes that his supervised release violation was based on his recent federal conviction, and that his appeal of that conviction was pending before this court at the time he appealed his supervised release revocation and sentence. 2 He asserts that revocation if will the no conviction longer be is vacated, valid. We the basis recently Johnson s underlying conviction and sentence. for affirmed United States v. Johnson, No. 09-4280, 2011 WL 288522 (4th Cir. Jan. 31, 2011) (unpublished). Accordingly, there is no question that an adequate factual basis supported the district court s revocation decision. II. A release sentence should statutory be maximum Sentence imposed affirmed and is after if it not revocation is plainly within of supervised the applicable unreasonable. United States v. Crudup, 461 F.3d 433, 437, 439-40 (4th Cir. 2006). first review generally the the sentence procedural for and reasonableness, substantive We follow[ing] considerations that [are] employ[ed] in [the] review of original sentences, . . . with some necessary modifications to take into account unique nature of supervised release revocation sentences. at 438-39; see (4th Cir. 2008) United ( In States v. applying Finley, the 531 plainly F.3d 288, the Id. 294 unreasonable standard, we first determine, using the instructions given in Gall [v. United States, 552 U.S. 38 (2007)], whether a sentence is unreasonable. ). 3 A sentence is reviewed for reasonableness under abuse of discretion standard. Gall, 552 U.S. at 51. review of requires substantive States v. consideration reasonableness Lynn, 592 of F.3d a 572, both the sentence. 575 This procedural Id.; see an and United (4th Cir. 2010). After determining whether the district court properly calculated the defendant s advisory guideline range, we must decide whether the district court considered the § 3553(a) factors, analyzed the arguments presented by the parties, and sufficiently explained Lynn, 592 F.3d at 575-76; see United the selected sentence. States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is free of significant procedural error, the appellate court reviews the substantive reasonableness of the sentence. Lynn, 592 F.3d at 575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007). Although the district court must consider the Chapter 7 policy statements and the requirements of § 3553(a) and § 3583, the sentencing court retains broad discretion to revoke a defendant s probation [or supervised release] and impose a term of imprisonment up to the statutory maximum. United States v. Moulden, 478 F.3d 652, 657 (4th Cir. 2007) (citing Crudup, 461 F.3d at 439). Johnson concedes that because he did not request a different sentence or object to his sentence, our review is for 4 plain error. review to a See Lynn, 592 F.3d at 577 (applying plain error claim that sentence was unreasonable where the defendant did not request a different sentence); Fed. R. Crim. P. 52(b). To establish plain error, Johnson must show that an error occurred, that the error was plain, and that the error affected his substantial rights. United States v. Muhammad, 478 F.3d 247, 249 (4th Cir. 2007). requirements, correction of Even if Johnson satisfies these the error remains within [the court s] discretion, which [the court] should not exercise . . . unless the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings. Id. (internal quotation marks and citation omitted). We have reviewed the record and conclude that Johnson has not satisfied this strict standard. He claims that the district court did not consider the Chapter 7 policy statements. While the court did not explicitly discuss the statements, we have held that the district court need not discuss the Chapter 7 statements, so long as it is clear from the record that the See United States v. Davis, 53 court considered the statements. F.3d 638, 642 (4th Cir. 1995) (district court need not engage in ritualistic incantation in order to consideration of [the Chapter 7 statements] ). establish its Our review of the record leads us to conclude that the court did consider the 5 Chapter 7 statements, and the court did not err, let alone plainly so. Accordingly, we affirm the judgment of the district court revoking month sentence. facts and materials supervised legal before We release dispense and with imposing oral argument contentions are adequately the and argument court a sixty-three because presented would not the in the aid the decisional process. AFFIRMED 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.