US v. Tavon Johnson, No. 11-4089 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4089 UNITED STATES OF AMERICA, Plaintiff Appellee, v. TAVON BERNARD JOHNSON, a/k/a Brandon Thomas, a/k/a Keith Bernard Miller, Defendant - Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:10-cr-00174-WDQ-1) Submitted: November 21, 2011 Decided: December 16, 2011 Before MOTZ, KING, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion. James Wyda, Federal Public Defender, Ebise Bayisa, Assistant Federal Public Defender, Greenbelt, Maryland, for Appellant. Rod J. Rosenstein, United States Attorney, Barbara S. Sale, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Tavon Bernard Johnson pleaded guilty to possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (2006), and possession of a firearm after having previously been convicted of a crime punishable by a term of imprisonment § 922(g) exceeding (2006). The one year, district in court violation sentenced of 18 U.S.C. Johnson total of 151 months of imprisonment and he now appeals. to a Finding no error, we affirm. Johnson argues on procedurally and sentence reasonableness, for appeal substantively that the unreasonable. applying an abuse sentence We of review is a discretion Gall v. United States, 552 U.S. 38, 51 (2007); see standard. also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009), cert. denied, 130 S. Ct. 290 (2009). examine the sentence for In so doing, we first significant procedural error, including failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider selecting a the [18 sentence U.S.C.] based on § 3553(a) clearly [(2006)] erroneous failing to adequately explain the chosen sentence. factors, facts, or Gall, 552 U.S. at 51. We then consider the sentence imposed. Id. the substantive reasonableness of We will presume on appeal that a 2 sentence within a properly calculated advisory Guidelines range is reasonable. United States v. Allen, 491 F.3d 178, 193 (4th Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56 (2007) (upholding presumption within-Guidelines sentence). of reasonableness for Moreover, [t]he fact that [we] might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court. Gall, 552 U.S. at 51. Johnson argues that the sentence is procedurally unreasonable because the district court failed to respond to his sentencing arguments, failed to consider the § 3553(a) factors, and failed to adequately explain the sentence. A district court must conduct an individualized assessment of the particular facts of every sentence, whether the court imposes a sentence above, below, or within the Guidelines range. Carter, 564 F.3d [w]here [the imposing a range,] . . . 325, parties] . . . a 330 (4th present[] sentence district Cir. 2009). In nonfrivolous [outside judge United States v. the should addition, reasons advisory address Guidelines the party s arguments and explain why he has rejected those arguments. at 328 review (internal the quotation adequacy abuse of discretion. of the marks and district citation court s for Id. omitted). We explanation for See United States v. Lynn, 592 F.3d 572, 578-79 (4th Cir. 2010) (claim for failure to adequately explain 3 sentence preserved if defendant argues for a sentence other than that imposed). We have thoroughly reviewed the record and conclude that the district sentencing court Johnson. did The responded to Johnson s rejection of each of not commit court specifically sentencing those thoroughly explained its sentence, thoughtfully procedural and arguments, arguments. reasons for evaluated error explicitly explaining Moreover, imposing Johnson s in the the its court chosen history and characteristics, the seriousness of the offenses of conviction, and the need appropriately sentencing for deterrence considered disparities, U.S.C. § 3553(a). and the and to protect advisory policy the public, Guidelines considerations. and range, See 18 Finally, we conclude that Johnson has failed to overcome the presumption of reasonableness applied to his within-Guidelines sentence. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately presented in the materials before the court and argument would not aid in the decisional process. AFFIRMED 4
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