Filed: Dec. 16, 2011
Latest Update: Feb. 22, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4089 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TAVON BERNARD JOHNSON, a/k/a Brandon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 unpubli
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4089 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. TAVON BERNARD JOHNSON, a/k/a Brandon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 unpublis..
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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 exceeding one year, in violation of 18 U.S.C.
§ 922(g) (2006). The district court sentenced Johnson to a
total of 151 months of imprisonment and he now appeals. Finding
no error, we affirm.
Johnson argues on appeal that the sentence is
procedurally and substantively unreasonable. We review a
sentence for reasonableness, applying an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007); see
also United States v. Layton,
564 F.3d 330, 335 (4th Cir. 2009),
cert. denied,
130 S. Ct. 290 (2009). In so doing, we first
examine the sentence for “significant procedural error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to consider the [18 U.S.C.] § 3553(a) [(2006)] factors,
selecting a sentence based on clearly erroneous facts, or
failing to adequately explain the chosen sentence.”
Gall, 552
U.S. at 51.
We then “consider the substantive reasonableness of
the sentence imposed.” Id. We will presume on appeal that a
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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 of reasonableness for
within-Guidelines sentence). 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. United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). In addition,
“[w]here [the parties] present[] nonfrivolous reasons for
imposing a . . . sentence [outside the advisory Guidelines
range,] . . . a district judge should address the party’s
arguments and explain why he has rejected those arguments.”
Id.
at 328 (internal quotation marks and citation omitted). We
review the adequacy of the district court’s explanation for
abuse of discretion. See United States v. Lynn,
592 F.3d 572,
578-79 (4th Cir. 2010) (claim for failure to adequately explain
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sentence preserved if defendant argues for a sentence other than
that imposed).
We have thoroughly reviewed the record and conclude
that the district court did not commit procedural error in
sentencing Johnson. The court specifically and explicitly
responded to Johnson’s sentencing arguments, explaining its
rejection of each of those arguments. Moreover, the court
thoroughly explained its reasons for imposing the chosen
sentence, thoughtfully evaluated Johnson’s history and
characteristics, the seriousness of the offenses of conviction,
and the need for deterrence and to protect the public, and
appropriately considered the advisory Guidelines range,
sentencing disparities, and policy considerations. See 18
U.S.C. § 3553(a). 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. 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 in the decisional
process.
AFFIRMED
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