US v. Tavon Johnson
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:10-cr-00174-WDQ-1. Copies to all parties and the district court/agency. [998745840]. [11-4089]
Appeal: 11-4089
Document: 33
Date Filed: 12/16/2011
Page: 1 of 4
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-4089
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TAVON BERNARD JOHNSON, a/k/a Brandon Thomas, a/k/a Keith
Bernard Miller,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:10-cr-00174-WDQ-1)
Submitted:
November 21, 2011
Decided:
December 16, 2011
Before MOTZ, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Ebise Bayisa, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant.
Rod J. Rosenstein, United States Attorney, Barbara S. Sale,
Assistant United States Attorney, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
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Date Filed: 12/16/2011
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PER CURIAM:
Tavon
Bernard
Johnson
pleaded
guilty
to
possession
with intent to distribute cocaine, in violation of 21 U.S.C.
§ 841(a)
(2006),
and
possession
of
a
firearm
after
having
previously been convicted of a crime punishable by a term of
imprisonment
§ 922(g)
exceeding
(2006).
The
one
year,
district
in
court
violation
sentenced
of
18
U.S.C.
Johnson
total of 151 months of imprisonment and he now appeals.
to
a
Finding
no error, we affirm.
Johnson
argues
on
procedurally
and
sentence
reasonableness,
for
appeal
substantively
that
the
unreasonable.
applying
an
abuse
sentence
We
of
review
is
a
discretion
Gall v. United States, 552 U.S. 38, 51 (2007); see
standard.
also United States v. Layton, 564 F.3d 330, 335 (4th Cir. 2009),
cert. denied, 130 S. Ct. 290 (2009).
examine
the
sentence
for
In so doing, we first
“significant
procedural
error,”
including “failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as mandatory, failing
to
consider
selecting
a
the
[18
sentence
U.S.C.]
based
on
§ 3553(a)
clearly
[(2006)]
erroneous
failing to adequately explain the chosen sentence.”
factors,
facts,
or
Gall, 552
U.S. at 51.
We
then
“consider
the sentence imposed.”
Id.
the
substantive
reasonableness
of
We will presume on appeal that a
2
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sentence within a properly calculated advisory Guidelines range
is reasonable.
United States v. Allen, 491 F.3d 178, 193 (4th
Cir. 2007); see Rita v. United States, 551 U.S. 338, 346-56
(2007)
(upholding
presumption
within-Guidelines sentence).
of
reasonableness
for
Moreover, “[t]he fact that [we]
might reasonably have concluded that a different sentence was
appropriate is insufficient to justify reversal of the district
court.”
Gall, 552 U.S. at 51.
Johnson
argues
that
the
sentence
is
procedurally
unreasonable because the district court failed to respond to his
sentencing arguments, failed to consider the § 3553(a) factors,
and failed to adequately explain the sentence.
A district court
must conduct an “individualized assessment” of the particular
facts of every sentence, whether the court imposes a sentence
above, below, or within the Guidelines range.
Carter,
564
F.3d
“[w]here
[the
imposing
a
range,]
.
.
.
325,
parties]
.
.
.
a
330
(4th
present[]
sentence
district
Cir.
2009).
In
nonfrivolous
[outside
judge
United States v.
the
should
addition,
reasons
advisory
address
Guidelines
the
party’s
arguments and explain why he has rejected those arguments.”
at
328
review
(internal
the
quotation
adequacy
abuse of discretion.
of
the
marks
and
district
citation
court’s
for
Id.
omitted).
We
explanation
for
See United States v. Lynn, 592 F.3d 572,
578-79 (4th Cir. 2010) (claim for failure to adequately explain
3
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sentence preserved if defendant argues for a sentence other than
that imposed).
We have thoroughly reviewed the record and conclude
that
the
district
sentencing
court
Johnson.
did
The
responded
to
Johnson’s
rejection
of
each
of
not
commit
court
specifically
sentencing
those
thoroughly
explained
its
sentence,
thoughtfully
procedural
and
arguments,
arguments.
reasons
for
evaluated
error
explicitly
explaining
Moreover,
imposing
Johnson’s
in
the
the
its
court
chosen
history
and
characteristics, the seriousness of the offenses of conviction,
and
the
need
appropriately
sentencing
for
deterrence
considered
disparities,
U.S.C. § 3553(a).
and
the
and
to
protect
advisory
policy
the
public,
Guidelines
considerations.
and
range,
See
18
Finally, we conclude that Johnson has failed
to overcome the presumption of reasonableness applied to his
within-Guidelines sentence.
Accordingly, we affirm the judgment of the district
court.
legal
We dispense with oral argument because the facts and
contentions
are
adequately
presented
in
the
materials
before the court and argument would not aid in the decisional
process.
AFFIRMED
4
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