US v. Charles Johnson, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:05-cr-00012-LO-2 Copies to all parties and the district court/agency. [998377259] [08-5178]

US v. Charles Johnson, Jr.

Doc. 0

Case: 08-5178 Document: 65

Date Filed: 07/12/2010

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-5178 UNITED STATES OF AMERICA, Plaintiff ­ Appellee, and ARTHUR ANDERSEN, LLP; AOL, Inc.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 Affirmed by unpublished per curiam opinion.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.

Dockets.Justia.com

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Unpublished opinions are not binding precedent in this circuit.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. Johnson's argument

We affirm. that the venue in the Eastern

District of Virginia for Count Three was improper was previously considered and rejected by this court. Johnson, 510 F.3d 521 (4th Cir. 2007). See United States v. 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. reviews Johnson's sentence "under a deferential This court abuse-of-

discretion standard." (2007). that the

Gall v. United States, 552 U.S. 38, 41

In conducting this review, the court "must first ensure district court committed no significant procedural

error, such as failing to calculate (or improperly calculating) 3

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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." "When rendering a sentence, the based § 3553(a) district on the court facts to

Id. at 51. make an

must

individualized applying the

assessment "relevant

presented," the specific

factors

circumstances of the case before it."

United States v. Carter,

564 F.3d 325, 328 (4th Cir. 2009) (internal quotation marks and emphasis omitted). particular reasons The court must also "state in open court the 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." marks omitted). is free Once of this court Id. (internal quotation has determined it must that the the into

sentence

procedural of

error, the

consider

substantive

reasonableness

sentence,

"tak[ing]

account the totality of the circumstances." 51.

Gall, 552 U.S. at

If the sentence is within the appropriate Guidelines range,

this court applies a presumption on appeal that the sentence is reasonable. Cir. 2008). In assessing a challenge to the district court's See United States v. Go, 517 F.3d 216, 218 (4th

application of the Sentencing Guidelines, this court reviews a 4

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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 A sentencing court is to make factual United States v.

256, 259 (4th Cir. 2009).

findings by a preponderance of the evidence.

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. * district Furthermore, Johnson did not raise this issue before the court and review is for plain error. See United Johnson (3) that

States v. Lynn, 592 F.3d 572, 576-77 (4th Cir. 2010). must show (1) an error, (2) that was plain, and

affected his substantial rights.

United States v. Massenburg, Even if he makes that

564 F.3d 337, 342-43 (4th Cir. 2009).

showing, this Court will consider the error "only if seriously affects the fairness, integrity and public reputation of

judicial proceedings." 731 (1993).

United States v. Olano, 507 U.S. 725,

We find no error.

USSG § 2F1.1 was deleted in 2001 and replaced by USSG § 2B1.1. 5

*

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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. convincing Whether standard the of district proof or court the used the clear of and the

preponderance

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 be that by the the facts court supporting using the sentencing beyond-a-

enhancements

found

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); 2007). Finally, we find no procedural or substantive error with Johnson's sentence. The district court clearly considered United States v. White, 472 F.3d 458, 464 (7th Cir.

Johnson's arguments for a below-Guidelines sentence and balanced 6

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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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