US v. Jermaine Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to withdraw as counsel [998390263-2] Originating case number: 1:06-cr-00006-BEL-1 Copies to all parties and the district court/agency. [998486806] [10-4454]

US v. Jermaine Johnson

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-4454 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JERMAINE JOHNSON, Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:06-cr-00006-BEL-1) Submitted: December 1, 2010 Decided: December 17, 2010

Before DUNCAN, AGEE, and WYNN, Circuit Judges. Affirmed by unpublished per curiam opinion. Thomas J. Saunders, LAW OFFICE OF THOMAS J. SAUNDERS, Baltimore, Maryland, for Appellant. Albert David Copperthite, Assistant United States Attorney, Baltimore, Maryland, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Appellant Jermaine Johnson pled guilty to one count of possessing with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a) (2006). After determining Johnson

qualified for the career offender enhancement pursuant to U.S. Sentencing Guidelines Manual § 4B1.1 (2006), the district court sentenced Johnson to 168 months' imprisonment. Counsel has

filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), indicating that this court should affirm the

district court's judgment, but explaining that Johnson wishes to question the reasonableness of his sentence. moved Johnson to withdraw not from a further pro se Counsel has also of brief Johnson. despite

representation supplemental

has

filed

receiving notice that he may do so, and the Government declined to file a responsive brief. Because we conclude the district

court committed no reversible error in this case, we affirm its judgment. This court reviews a district court's sentence for

reasonableness under an abuse-of-discretion standard.

Gall v.

United States, 552 U.S. 38, 51 (2007); see also United States v. Pauley, requires 511 F.3d 468, 473-74 (4th of Cir. both 2007). the This review and

appellate

consideration

procedural

substantive reasonableness of a sentence.

Gall, 552 U.S. at 51.

In determining procedural reasonableness, this court considers 2

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whether the district court properly calculated the defendant's advisory Guidelines range, considered the 18 U.S.C. § 3553(a) (2006) factors, analyzed any arguments presented by the parties, and sufficiently of explained the the selected court it based sentence. imposes must on an Id. above, on the

Regardless below, record or "an

whether

district

within-Guidelines individualized

sentence,

place the

assessment

particular

facts of the case before it."

United States v. Carter, 564 F.3d

325, 330 (4th Cir. 2009) (internal quotation marks omitted). Finally, this court reviews the substantive

reasonableness of the sentence, "examin[ing] the totality of the circumstances to see whether the sentencing court abused its discretion in concluding that the sentence it chose satisfied the standards set forth in § 3553(a)." United States v.

Mendoza-Mendoza, 597 F.3d 212, 216 (4th Cir. 2010). sentence this imposed is within it the on appropriate appeal to Guidelines be

If the range,

court

considers

presumptively

reasonable. 2008).

United States v. Go, 517 F.3d 216, 218 (4th Cir.

This presumption may be rebutted by a showing "that the

sentence is unreasonable when measured against the § 3553(a) factors." United States v. Montes-Pineda, 445 F.3d 375, 379

(4th Cir. 2006) (internal quotation marks omitted). Johnson's argument that his classification as a career offender overrepresents the seriousness of his offense has no 3

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merit in light of his robust criminal history.

Furthermore,

Johnson cannot benefit from Amendment 706 to the United States Sentencing career Guidelines because rather his sentence the was based of on his

offender

status

than

quantity

cocaine

attributable to him.

See United States v. Munn, 595 F.3d 183,

188 (4th Cir. 2010) (A sentence may not be reduced pursuant to "Amendment 706 if the defendant seeking the reduction was

sentenced pursuant to the Career Offender Provision."). we conclude the district court properly calculated

Thus,

Johnson's

Guidelines range. court provided an

The record also establishes that the district individualized analysis of the § 3553(a)

factors as they applied to Johnson's circumstances and analyzed the arguments presented by the parties. Accordingly, is we both

conclude

Johnson's

within-Guidelines

sentence

procedurally and substantively reasonable. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm the district court's judgment. At this

juncture, we also deny counsel's motion to withdraw from further representation of Johnson. Rather, this court requires that

counsel inform Johnson, in writing, of the right to petition the Supreme Court of the United States for further review. If

Johnson requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move 4

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in

this

court

for

leave

to

withdraw

from

representation.

Counsel's motion must state that a copy thereof was served on Johnson. We dispense with oral argument because the facts and legal before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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