Filed: Apr. 20, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5230 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DENNIS STEPHEN JOHNSTON, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:09-cr-00072-D-1) Submitted: March 28, 2011 Decided: April 20, 2011 Before WILKINSON, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. M. Gordon Widenhous
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5230 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. DENNIS STEPHEN JOHNSTON, Defendant – Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (7:09-cr-00072-D-1) Submitted: March 28, 2011 Decided: April 20, 2011 Before WILKINSON, DAVIS, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. M. Gordon Widenhouse..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-5230
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DENNIS STEPHEN JOHNSTON,
Defendant – Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
District Judge. (7:09-cr-00072-D-1)
Submitted: March 28, 2011 Decided: April 20, 2011
Before WILKINSON, DAVIS, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
M. Gordon Widenhouse, Jr., RUDOLF, WIDENHOUSE & FIALKO, Chapel
Hill, North Carolina, for Appellant. George E. B. Holding,
United States Attorney, Jennifer P. May-Parker, Joe Exum, Jr.,
Assistant United States Attorneys, Raleigh, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dennis Stephen Johnston pled guilty without a plea
agreement to two counts of producing child sex images, in
violation of 18 U.S.C. § 2251(a), (d) (2006). The district
court calculated Johnston’s advisory Guidelines range under the
U.S. Sentencing Guidelines Manual (“USSG”) (2008) to be life
imprisonment, and imposed a sentence of 360 months on each
count, to run consecutively. Johnston timely appeals his
sentence, challenging its substantive reasonableness. We
affirm.
We review the district court’s sentence for
reasonableness under an abuse-of-discretion standard. Gall v.
United States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of a sentence.
Id. In determining whether a
sentence is substantively reasonable, we “take into account the
totality of the circumstances.”
Id. at 51; United States v.
Pauley,
511 F.3d 468, 473 (4th Cir. 2007). This court presumes
that a sentence within a properly determined advisory Guidelines
range is substantively reasonable. See United States v. Abu
Ali,
529 F.3d 210, 261 (4th Cir. 2008). That presumption may be
rebutted by a showing “that the sentence is unreasonable when
measured against the [18 U.S.C.] § 3553(a) [2006] factors.”
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United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
Johnston claims his sentence is substantively
unreasonable because the district court, in fashioning his
sentence: (1) impermissibly relied on solely one § 3553(a)
factor, i.e., the nature and circumstances of the offense
conduct; (2) erred in imposing consecutive sentences, resulting
in a sentence greater than necessary to achieve the goals of
sentencing; and (3) improperly rejected his statement of
remorse. Johnston’s sentence is entitled to a presumption of
reasonableness on appeal because he was sentenced within a
properly-calculated advisory Guidelines range.
In attempting to rebut the presumption, Johnston first
argues that the district court failed to consider his remorse.
The record clearly reflects that the court considered Johnston’s
expressed remorse but found it incredible. Johnston further
argues that the court singled out one factor — the extremity of
his conduct — in fashioning the sentence. Our review of the
record reveals the court explicitly considered the need to
promote respect for the law, deterrence to others who may engage
in similar conduct, and the need to protect society from
Johnston. Undeniably, the egregiousness of Johnston’s offense
conduct weighed heavily in the court’s determination. This,
however, does not constitute error. In fact, this court has
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acknowledged that, “in many cases, the sentencing decision will
ultimately turn on a single § 3553(a) factor.” United States v.
Engle, 592 F.3d 495, 504 (4th Cir.), cert. denied,
131 S. Ct.
165 (2010).
Johnston also argues the court’s imposition of
consecutive sentences for a total of 720 months’ imprisonment
was greater than necessary to achieve a sentence under
§ 3553(a). However, as noted in the presentence report and by
the district court, under the Guidelines, “if the sentence on
the count carrying the highest statutory maximum is less than
the total punishment, then the sentence on one or more of the
other counts shall run consecutively, but only to the extent
necessary to produce a combined sentence equal to the total
punishment.” USSG § 5G1.2(d); see also United States v. Allen,
491 F.3d 178, 195 (4th Cir. 2007) (“[T]he Guidelines allowed the
district court to ‘stack’ multiple counts consecutively to
achieve a sentence within the Guidelines range.”). Because
Johnston’s advisory Guidelines range was life imprisonment and
his 720-month sentence achieves a life sentence, the district
court did not err in imposing consecutive sentences in this
case.
We conclude that Johnston has not rebutted the
presumption of reasonableness that we apply to a sentence within
the properly calculated Guidelines range. Accordingly, we
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affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED
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