US v. Jayvius Johnson

Filing 920100223

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-4622

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JAYVIUS MARKIESE JOHNSON, Defendant - Appellant.

Appeal from the United States District Court for the District of South Carolina, at Greenville. G. Ross Anderson, Jr., Senior District Judge. (6:03-cr-00682-GRA-2)

Submitted:

February 18, 2010

Decided:

February 23, 2010

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville, South Carolina, for Appellant. W. Walter Wilkins, III, United States Attorney, Columbia, South Carolina, Maxwell B. Cauthen, III, Assistant United States Attorney, Greenville, South Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Jayvius Johnson appeals from his thirty-six month On

sentence, imposed upon revocation of his supervised release.

appeal, Johnson contends the district court failed to adequately explain the basis for its decision to depart upward from the policy statement range (seven to thirteen months) and argues that his sentence is plainly unreasonable, both procedurally and substantively. We will affirm a sentence imposed after revocation of supervised release if it is not plainly unreasonable. States v. Crudup, 461 F.3d 433, 437 (4th Cir. United The

2006).

sentence first must be assessed for reasonableness, "follow[ing] generally the procedural and substantive considerations that we employ in our review of original sentences, . . . with some necessary modifications to take into account the unique nature of supervised if a release revocation is found sentences." Id. or at 438-39.

Only

sentence

procedurally

substantively

unreasonable will this court "decide whether the sentence is plainly unreasonable." Id. at 439.

Although the district court must consider the Chapter 7 policy statements and the requirements of 18 U.S.C.

§§ 3553(a), 3583 (2006), "the [district] court ultimately has broad discretion to revoke its previous sentence and impose a term of imprisonment up to the statutory maximum." 2 Crudup, 461

F.3d at 439. beyond

"[A] court's statement of its reasons for going policy statements in imposing a sentence

non-binding

after revoking a . . . supervised release term need not be as specific as has been required when courts departed from

guidelines." Id. Johnson's challenge to the reasonableness of his

sentence lacks merit.

Johnson admitted the charged failure to The court

pay restitution and stated that he had no excuse.

noted that Johnson was back for the second time for the same violation, that he was trying to avoid paying back the funds, and that Johnson was consistently defiant in court. In response

to Johnson's motion for reconsideration, the court stated that it had considered the applicable statutory factors and noted that Johnson's failure to pay restitution was a continuing,

monthly problem and that Johnson had lied about making payments, about his change in address, and about his employment status. The court further goods had considered false that Johnson was charged with

obtaining release

under been

pretenses

during

his his

supervised term. We

and

noncompliant

throughout

conclude that the record shows that the district court carefully evaluated the circumstances and reached a reasonable conclusion that the maximum sentence was appropriate. For imposed was the foregoing and reasons, thus 3 we find the sentence court's

reasonable

affirm

the

district

judgment. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in the the materials decisional

would

aid

process. AFFIRMED

4