US v. Dennis Johnston

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 7:09-cr-00072-D-1. Copies to all parties and the district court/agency. [998572304].. [09-5230]

Case: 09-5230

Document: 49

Date Filed: 04/20/2011

Page: 1

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.

Case: 09-5230

Document: 49

Date Filed: 04/20/2011

Page: 2

PER CURIAM:
Dennis

Stephen

agreement

to

two

violation

of

18

Johnston

counts
U.S.C.

guilty

without

producing

of

pled

child

sex

§ 2251(a),

(d)

(2006).

a

plea

images,
The

in

district

court calculated Johnston’s advisory Guidelines range under the
U.S. Sentencing Guidelines Manual (“USSG”) (2008) to be life
imprisonment,
count,

to

sentence,

and

run

imposed

a

sentence

consecutively.

challenging

its

of

Johnston

substantive

360

months

timely

on

each

appeals

his

reasonableness.

We

affirm.
We

review

the

district

court’s

sentence

reasonableness under an abuse-of-discretion standard.
United States, 552 U.S. 38, 51 (2007).
consideration

of

both

the

Gall v.

This review requires

procedural

reasonableness of a sentence.

for

and

substantive

In determining whether a

Id.

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
See United States v. Abu

range is substantively reasonable.

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.]

2

§

3553(a)

[2006]

factors.”

Case: 09-5230

United

States

v.

Document: 49

Date Filed: 04/20/2011

Montes-Pineda,

445

F.3d

Page: 3

375,

379

(4th

Cir.

2006) (internal quotation marks omitted).
Johnston
unreasonable
sentence:
factor,

claims

because

the

his
district

(1) impermissibly
i.e.,

the

nature

sentence
court,

relied
and

is

on

in

substantively
fashioning

solely

circumstances

one
of

his

§ 3553(a)

the

offense

conduct; (2) erred in imposing consecutive sentences, resulting
in a sentence greater than necessary to achieve the goals of
sentencing;
remorse.

and

(3)

improperly

rejected

his

statement

of

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.
record

reveals

the

court

explicitly

Our review of the

considered

the

need

to

promote respect for the law, deterrence to others who may engage
in

similar

Johnston.

conduct,

and

the

need

to

protect

society

from

Undeniably, the egregiousness of Johnston’s offense

conduct weighed heavily in the court’s determination.
however, does not constitute error.
3

This,

In fact, this court has

Case: 09-5230

Document: 49

Date Filed: 04/20/2011

Page: 4

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

§ 3553(a).

than

necessary

to

achieve

a

sentence

under

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

USSG § 5G1.2(d); see also United States v. Allen,

punishment.”

491 F.3d 178, 195 (4th Cir. 2007) (“[T]he Guidelines allowed the
district
achieve

court
a

to

sentence

‘stack’
within

multiple
the

counts

Guidelines

consecutively

range.”).

to

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

rebutted

the

case.
We

conclude

that

Johnston

has

not

presumption of reasonableness that we apply to a sentence within
the

properly

calculated

Guidelines
4

range.

Accordingly,

we

Case: 09-5230

Document: 49

Date Filed: 04/20/2011

affirm the district court’s judgment.

Page: 5

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

5