Filed: Jul. 12, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5178 UNITED STATES OF AMERICA, Plaintiff – Appellee, and ARTHUR ANDERSEN, LLP; AOL, Inc. Parties-in-Interest, v. CHARLES E. JOHNSON, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:05-cr-00012-LO-2) Submitted: May 27, 2010 Decided: July 12, 2010 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unp
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5178 UNITED STATES OF AMERICA, Plaintiff – Appellee, and ARTHUR ANDERSEN, LLP; AOL, Inc. Parties-in-Interest, v. CHARLES E. JOHNSON, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:05-cr-00012-LO-2) Submitted: May 27, 2010 Decided: July 12, 2010 Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges. Affirmed by unpu..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5178
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
and
ARTHUR ANDERSEN, LLP; AOL, Inc.
Parties-in-Interest,
v.
CHARLES E. JOHNSON, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:05-cr-00012-LO-2)
Submitted: May 27, 2010 Decided: July 12, 2010
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mark H. Allenbaugh, ALLENBAUGH SAMINI GHOSHEH, LLP, Irvine,
California, for Appellant. Dana J. Boente, United States
Attorney, Timothy D. Belevetz, Charles F. Connolly, Assistant
United States Attorneys, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
After a bench trial, Charles E. Johnson was convicted
of conspiracy to commit securities fraud, in violation of 18
U.S.C. § 371 (2006), securities fraud, in violation of 15 U.S.C.
§§ 78j(b), 78ff (2006); 17 C.F.R. § 240.10b-5; 18 U.S.C. § 2
(2006), tampering with a witness, in violation of 18 U.S.C.A.
§ 1512(b)(3) (West 2000 & Supp. 2010), and obstruction of an
official proceeding, in violation of 18 U.S.C.A. § 1512(c)(2).
He was sentenced to 108 months’ imprisonment and ordered to pay
$9.7 million in restitution, of which $6.7 million he was
jointly and severably liable. We affirm.
Johnson’s argument that the venue in the Eastern
District of Virginia for Count Three was improper was previously
considered and rejected by this court. See United States v.
Johnson, 510 F.3d 521 (4th Cir. 2007). It is well-settled that
this panel cannot overrule a prior decision, only an en banc
court may overrule a prior panel decision. See Jones v.
Angelone,
90 F.3d 900, 905 (4th Cir. 1996).
We reject Johnson’s sentencing arguments. This court
reviews Johnson’s sentence “under a deferential abuse-of-
discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). In conducting this review, the court “must first ensure
that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating)
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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.” Id. at 51.
“When rendering a sentence, the district court must make an
individualized assessment based on the facts presented,”
applying the “relevant § 3553(a) factors to the specific
circumstances of the case before it.” United States v. Carter,
564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and
emphasis omitted). The court must also “state in open court the
particular reasons supporting its chosen sentence” and “set
forth enough to satisfy” this court that it has “considered the
parties’ arguments and has a reasoned basis for exercising [its]
own legal decisionmaking authority.”
Id. (internal quotation
marks omitted). Once this court has determined that the
sentence is free of procedural error, it must consider the
substantive reasonableness of the sentence, “tak[ing] into
account the totality of the circumstances.”
Gall, 552 U.S. at
51. If the sentence is within the appropriate Guidelines range,
this court applies a presumption on appeal that the sentence is
reasonable. See United States v. Go,
517 F.3d 216, 218 (4th
Cir. 2008).
In assessing a challenge to the district court’s
application of the Sentencing Guidelines, this court reviews a
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district court’s factual findings for clear error and its legal
conclusions de novo. United States v. Sosa-Carabantes, 561 F.3d
256, 259 (4th Cir. 2009). A sentencing court is to make factual
findings by a preponderance of the evidence. United States v.
Jeffers,
570 F.3d 557, 570 (4th Cir.), cert. denied,
130 S. Ct.
645 (2009). These factual findings will be reversed only if
this court is “left with the definite and firm conviction that a
mistake has been committed.” United States v. Harvey,
532 F.3d
326, 337 (4th Cir. 2008) (internal quotation marks omitted).
Johnson’s argument that U.S. Sentencing Guidelines
Manual § 2F1.1 (2000) is irrational and unreasonable is without
merit. * Furthermore, Johnson did not raise this issue before the
district court and review is for plain error. See United
States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). Johnson
must show (1) an error, (2) that was plain, and (3) that
affected his substantial rights. United States v. Massenburg,
564 F.3d 337, 342-43 (4th Cir. 2009). Even if he makes that
showing, this Court will consider the error “only if seriously
affects the fairness, integrity and public reputation of
judicial proceedings.” United States v. Olano,
507 U.S. 725,
731 (1993). We find no error.
*
USSG § 2F1.1 was deleted in 2001 and replaced by USSG
§ 2B1.1.
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We further find no error in the district court’s
finding that the amount of loss for sentencing purposes was $9.7
million. Whether the district court used the clear and
convincing standard of proof or the preponderance of the
evidence standard of proof in arriving at the amount of loss and
the other enhancement, the evidence supporting these findings
was clearly sufficient. As a result of Johnson receiving these
funds, either for his own use or to pass onto a third party,
PurchasePro, Incorporated, suffered substantial pecuniary harm.
We find no merit to Johnson’s argument that the Fifth
Amendment requires that the facts supporting sentencing
enhancements be found by the court using the beyond-a-
reasonable-doubt standard. See United States v. Grubbs, 585
F.3d 793 (4th Cir. 2009), cert. denied, __ S. Ct. __ (2010) (No.
09-9104) (rejecting Appellant’s argument that the Fifth
Amendment requires a higher standard of proof at sentencing);
see also United States v. Villareal-Amarillas,
562 F.3d 892, 897
(8th Cir. 2009); United States v. Jones,
489 F.3d 243, 250 (6th
Cir. 2007); United States v. Grier,
475 F.3d 556, 561 (3d Cir.
2007); United States v. White,
472 F.3d 458, 464 (7th Cir.
2007).
Finally, we find no procedural or substantive error
with Johnson’s sentence. The district court clearly considered
Johnson’s arguments for a below-Guidelines sentence and balanced
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his claims against his criminal conduct, his attempts to
obstruct justice and the need to deter other leaders of publicly
held corporations from engaging in similar conduct.
Accordingly, we affirm the convictions and sentence.
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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