US v. Maurice Johnston

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 4:07-cr-00071-F-1 Copies to all parties and the district court/agency. [998488033] [10-4043]

US v. Maurice Johnston

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Case: 10-4043 Document: 32

Date Filed: 12/20/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4043 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MAURICE RAYMOND JOHNSTON, Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. James C. Fox, Senior District Judge. (4:07-cr-00071-F-1) Submitted: November 22, 2010 Decided: December 20, 2010

Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas P. McNamara, Federal Public Defender, G. Alan DuBois, Assistant Federal Public Defender, James E. Todd, Jr., Research and Writing Attorney, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. MayParker, Eric D. Goulian, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Maurice eighty-seven Raymond in Johnston prison appeals his sentence guilty of to

months

after

pleading

possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1), 924 (West 2000 & Supp. 2010). On appeal,

he contends that the district court committed procedural error by failing to adequately explain its decision to reject his

request for a within-Guidelines sentence and instead to impose a one-level category history. upward because We affirm. This court reviews for abuse of discretion sentences imposed by a district court. Gall v. United States, 552 U.S. departure it to Johnston's criminal history criminal

under-represented

Johnston's

38, 51 (2007); United States v. Layton, 564 F.3d 330, 335 (4th Cir.), cert. denied, 130 S. Ct. 290 (2009). procedurally unreasonable when a district A sentence is court commits

"significant procedural error," including "failing to adequately explain the chosen sentence." sentencing

Gall, 552 U.S. at 51. in open court the

Thus, the particular

court

"`must

state

The Government argues that Johnston waived this ground at sentencing, or else failed to preserve it. Review of the record belies this claim. Additionally, defense counsel's arguments corresponded sufficiently with the statutory factors in 18 U.S.C. § 3553(a)(1)-(2) (2006) to preserve the issue of whether the district court adequately explained its sentence. See United States v. Lynn, 592 F.3d 572, 581 (4th Cir. 2010). 2

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reasons

supporting

its

chosen

sentence.'"

United

States

v.

Carter, 564 F.3d 325, 328 (4th Cir. 2009) (quoting 18 U.S.C. § 3553(c) (2006)). A district court's explanation "need not be elaborate or lengthy." Id. at 330. Instead, it need only show "`that

[the district court] has considered the parties' arguments and has a reasoned basis for exercising [its] own legal

decisionmaking authority.'"

United States v. Engle, 592 F.3d

495, 500 (4th Cir. 2010) (quoting Rita v. United States, 551 U.S. 338, 356 (2007)) (alterations in original), cert. denied, __ S. Ct. __, 2010 WL 2345029 (U.S. Oct. 4, 2010) (No. 09-1512). The court need not explicitly reference § 3553(a) or discuss every factor on the record. 339, 345 (4th Cir. 2006). United States v. Johnson, 445 F.3d An explanation is adequate when it

"allow[s] for meaningful appellate review and . . . promote[s] the perception of fair sentencing." Gall, 552 U.S. at 50.

Johnston contends that his sentence must be vacated because the district court did not explain of a its reasons for

rejecting sentence.

his

arguments

in

favor

within-Guidelines Our

The Government contends that no error occurred.

review of the record convinces us the Government is correct. Both Johnston and his attorney offered reasons for the district court to impose a within-Guidelines sentence, including the

nature and circumstances of Johnston's offense and his history 3

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and characteristics. request with a

The district court responded to Johnston's of Johnston's criminal history,

recitation

concluding "that the criminal history category of IV grossly under represents your propensity for violence and high risk to commit additional crimes." (J.A. 84). The record demonstrates

that the district court determined that Johnston's history of violent and drug-related crimes and institutional offenses,

particularly a 2001 conviction for discharging a shotgun into an occupied vehicle, outweighed any mitigating factors. We discern

no basis to question the propriety of the court's exercise of its discretion. We therefore affirm the district court's judgment. dispense with oral argument because the facts and We

legal

contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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