US v. David Johnson, No. 19-4519 (4th Cir. 2020)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 19-4519 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DAVID DAMOND JOHNSON, a/k/a Double Up, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:09-cr-00826-CMC-9) Submitted: April 30, 2020 Decided: May 4, 2020 Before WILKINSON, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jill E.M. HaLevi, MEDIATION & LEGAL SERVICES, LLC, Charleston, South Carolina, for Appellant. Christopher Dolan Taylor, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Florence, South Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: David Damond Johnson appeals the 37-month sentence imposed upon revocation of his supervised release. Counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal but questioning whether Johnson’s revocation sentence is plainly unreasonable. Although informed of his right to file a pro se supplemental brief, Johnson has not done so. The Government has declined to file a response brief. We affirm. “A district court has broad discretion when imposing a sentence upon revocation of supervised release. We will affirm a revocation sentence if it is within the statutory maximum and is not plainly unreasonable.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013) (citation and internal quotation marks omitted). “[W]e first consider whether the sentence imposed is procedurally or substantively unreasonable.” Id. Only when the sentence is unreasonable will we determine whether the sentence “is plainly so.” Id. (internal quotation marks omitted). “A revocation sentence is procedurally reasonable if the district court adequately explains the chosen sentence after considering the Sentencing Guidelines’ nonbinding Chapter Seven policy statements and the applicable 18 U.S.C. § 3553(a) [(2018)] factors.” United States v. Slappy, 872 F.3d 202, 207 (4th Cir. 2017) (footnote omitted); see 18 U.S.C. § 3583(e) (2018) (listing relevant factors). “[A] revocation sentence is substantively reasonable if the court sufficiently states a proper basis for its conclusion that the defendant should receive the sentence imposed.” Slappy, 872 F.3d at 207 (alteration and internal quotation marks omitted). “A sentence within the policy statement range is presumed 2 reasonable.” United States v. Padgett, 788 F.3d 370, 373 (4th Cir. 2015) (internal quotation marks omitted). In fashioning an appropriate sentence, “the court should sanction primarily the defendant’s breach of trust, while taking into account, to a limited degree, the seriousness of the underlying violation and the criminal history of the violator.” USSG ch. 7, pt. A(3)(b); see Webb, 738 F.3d at 641. “A court need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence, but it still must provide a statement of reasons for the sentence imposed.” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010) (internal quotation marks omitted). An explanation is sufficient if we can determine “that the sentencing court considered the applicable sentencing factors with regard to the particular defendant before it and also considered any potentially meritorious arguments raised by the parties with regard to sentencing.” United States v. Gibbs, 897 F.3d 199, 204 (4th Cir. 2018) (alterations and internal quotation marks omitted). While the court must consider certain factors enumerated under § 3553(a), supervised release revocation proceedings are governed by 18 U.S.C. § 3583(e), which excludes consideration of “the need for the sentence . . . to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” 18 U.S.C. § 3553(a)(2)(A); see 18 U.S.C. § 3583(e). However, “mere reference to such considerations does not render a revocation sentence procedurally unreasonable when those factors are relevant to, and considered in conjunction with, the enumerated § 3553(a) factors.” Webb, 738 F.3d at 642. 3 We find no unreasonableness, plain or otherwise, in Johnson’s sentence, which was within the properly calculated policy statement range. The district court discussed the nature and seriousness of Johnson’s offense, reviewed his history and characteristics, considered Johnson’s breach of the court’s trust and the need to protect the public from Johnson, and did not unduly rely on impermissible factors. Although the court did not explicitly address some of Johnson’s arguments in mitigation, our review of the proceedings show that the court considered the arguments and did not find them persuasive. In accordance with Anders, we have reviewed the entire record in this case and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. 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 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 contentions are adequately presented in the materials before this court and argument would not aid the decisional process. AFFIRMED 4
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