US v. William Maurice Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion to expedite decision [999215129-2] Originating case number: 8:12-cr-00282-PJM-1 Copies to all parties and the district court/agency. [999306396].. [13-4672]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-4672

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM MAURICE JOHNSON,
Defendant - Appellant.

Appeal from the United States District Court for the District of
Maryland, at Greenbelt.
Peter J. Messitte, Senior District
Judge. (8:12-cr-00282-PJM-1)

Submitted:

February 20, 2014

Decided:

February 28, 2014

Before KING, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Michael N. Loebl, FULCHER HAGLER LLP, Augusta, Georgia, for
Appellant. Rod J. Rosenstein, United States Attorney, Kelly O.
Hayes, Assistant United States Attorney, Greenbelt, Maryland,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
William Maurice Johnson appeals the district court’s
judgment

revoking

nine-month

prison

his

supervised

term.

Johnson

release
challenges

arguing that it is plainly unreasonable.
A
sentence

district

upon

court

revoking

has
a

and

broad

imposing

this

a

sentence,

We affirm.
discretion

defendant’s

to

impose

supervised

a

release.

United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010).
We will affirm a sentence imposed after revocation of supervised
release if it is within the applicable statutory maximum and not
“plainly unreasonable.”
437,

439-40

(4th

United States v. Crudup, 461 F.3d 433,

Cir.

2006).

In

determining

whether

a

revocation sentence is plainly unreasonable, we first assess the
sentence

for

unreasonableness,

“follow[ing]

generally

the

procedural and substantive considerations that we employ in our
review of original sentences.”
A
procedurally

supervised
reasonable

Id. at 438.

release
if

the

revocation

district

sentence

court

is

considered

the

Sentencing Guidelines’ Chapter 7 advisory policy statements and
the

18

U.S.C.

§ 3553(a)

(2012)

factors

it

is

permitted

consider in a supervised release revocation case.
§ 3583(e) (2012); Crudup, 461 F.3d at 439.

to

18 U.S.C.

Although a district

court need not explain the reasons for imposing a revocation
sentence

in

as

much

detail

as
2

when

it

imposes

an

original

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sentence, it “still must provide a statement of reasons for the
sentence

imposed.”

quotation

marks

Thompson,

omitted).

595

The

F.3d

at

reasons

547

(internal

articulated

by

the

district court for a given sentence need not be “couched in the
precise language of § 3553(a),” so long as the “reasons can be
matched

to

a

[§ 3553(a)]

factor

and

appropriate

[were]

particular situation.”

clearly

for

tied

consideration
to

[the

under

defendant’s]

United States v. Moulden, 478 F.3d 652,

658 (4th Cir. 2007).
A revocation sentence is substantively reasonable if
the

district

defendant

court

should

statutory maximum.
is

found

“then

stated

receive

Id. at 439.

the

whether

or

basis

sentence

substantively

the

sentence

is

for

concluding

imposed,

up

to

the
the

Only if a sentence

unreasonable
plainly

will

we

unreasonable.”

A sentence is plainly unreasonable if it is clearly

or obviously unreasonable.
In

proper

Crudup, 461 F.3d at 440.

procedurally

decide

a

this

nine-month

prison

statutory

maximum.

case,

Id.
there

sentence
18

is

does

U.S.C.

no

dispute

that

not

exceed

the

§§ 3559(a),

Johnson’s
applicable

3583(e)(3)

(2012).

The district court also considered the advisory policy statement
range of six to twelve months’ imprisonment, see U.S. Sentencing
Guidelines Manual (“USSG”) §§ 7B1.1(a)(3), (b), 7B1.4(a), p.s.
(2012), and heard argument from counsel for both parties.
3

On

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appeal,

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Johnson

unreasonable

contends

because

the

Pg: 4 of 7

that

the

district

sentence

court

erred

is

in

plainly

failing

to

afford him the opportunity to allocute, erroneously considered
irrelevant evidence in making its factual findings and imposing
sentence,

failing

to

calculate

the

advisory

policy

statement

range, and failing to adequately explain its selected sentence.
After review of the parties’ briefs and the record, we conclude
that these challenges are without merit.
Because

Johnson

he

did

not

object

to

the

alleged

denial of allocution in the district court, our review is for
plain error only.
(4th

Cir.

2007).

demonstrate
(2) the

United States v. Muhammad, 478 F.3d 247, 249

that

error

substantial

To
(1)

was

the

plain;

rights.

1121, 1126 (2013).

establish

plain

district
and

(3)

Henderson

v.

court
the

error,

Johnson

committed
error

United

an

must
error;

affected

States,

133

his

S. Ct.

Even if these requirements are met, however,

we will “exercise our discretion to correct the error only if it
seriously affects the fairness, integrity or public reputation
of judicial proceedings.”

United States v. Nicholson, 676 F.3d

376, 381 (4th Cir. 2012) (internal quotation marks omitted).
A

defendant

at

a

supervised

release

revocation

proceeding is entitled to “an opportunity to make a statement
and present any information in mitigation.”
32.1(b)(2)(E).

Fed. R. Crim. P.

This right to allocution is not satisfied by
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“[m]erely affording the Defendant’s counsel the opportunity to
speak”; instead, “[t]rial judges should leave no room for doubt
that

the

defendant

has

been

speak prior to sentencing.”

issued

a

personal

invitation

to

United States v. Cole, 27 F.3d 996,

998 (4th Cir. 1994) (internal quotation marks omitted).
Assuming
question

to

without

Johnson

as

to

deciding

that

whether

he

the
had

district
anything

court’s
“new

or

different” he wanted to say at the revocation hearing amounted
to a plain deprivation of Johnson’s right to allocute, we turn
to

an

assessment

substantial rights.

of

whether

the

error

affected

Johnson’s

“[A] defendant [is] not prejudiced by the

denial of allocution when there was no possibility that he could
have received a shorter sentence.”

Muhammad, 478 F.3d at 249.

If, however, we can identify a ground on which a lower sentence
might have been based, we may notice the error.
27 F.3d

at

999

(“When . . . the

possibility

See Cole,

remains

that

an

exercise of the right of allocution could have led to a sentence
less

than

that

received, . . . fairness

and

integrity

of

the

court proceedings would be brought into serious disrepute were
we to allow the sentence to stand.”).

Upon review, we conclude

that Johnson has failed to demonstrate he was prejudiced by the
district court’s failure to afford him a proper opportunity to
allocute.

5

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Next,

Johnson

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argues

that

the

district

court

erroneously considered irrelevant evidence in making its factual
findings and in imposing sentence.

However, because Johnson

fails to present this argument in accordance with Fed. R. App.
P.

28(a)(8)(A)

(“[T]he

[appellant’s]

argument . . . must

contain . . . appellant’s contentions and the reasons for them,
with citations to the authorities and parts of the record on
which

the

appellant

relies.”),

we

deem

it

waived.

Wahi

v.

Charleston Area Med. Ctr., Inc., 562 F.3d 599, 607 (4th Cir.
2009).
Finally, we reject as without merit Johnson’s argument
that

the

nine-month

sentence

is

unreasonable

because

the

district court failed to calculate the advisory policy statement
range and provide a sufficient explanation for its sentencing
decision.

It is clear from the record that the court considered

the properly-calculated policy statement range; that the court
was not the entity that calculated the range does not render the
nine-month sentence unreasonable.
Crudup,

461

F.3d

at

439.

See Moulden, 478 F.3d at 656;

Further,

in

rejecting

counsel’s

request for a sentence below the policy statement range, the
district court considered Johnson’s history and characteristics,
the nature and circumstances of his violative behavior, and the
need

for

the

sentence

§ 3553(a)(1), (2)(B).

to

afford

deterrence.

18

U.S.C.

The court’s comments also indicate that
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it imposed the sentence to sanction Johnson’s breach of trust,
despite

prior

lenient

treatment.

See

USSG

Ch.

7,

Pt.

A,

introductory cmt. 3(b) (“[A]t revocation the [district] court
should sanction primarily the defendant’s breach of trust.”).
We
explained

its

conclude

that

rationale

for

the

district

imposing

the

court

adequately

nine-month

prison

sentence and relied on proper considerations in doing so.

Based

on the broad discretion that a district court has to revoke a
term of supervised release and impose a prison term up to and
including the statutory maximum, Johnson’s revocation sentence
is

not

unreasonable.

Therefore,

we

conclude

that

Johnson’s

sentence is not plainly unreasonable.
Accordingly, we affirm the district court’s judgment.
We deny Johnson’s motion to expedite decision and dispense with
oral

argument

adequately

because

presented

in

the
the

facts

and

materials

legal
before

contentions
this

court

are
and

argument would not aid the decisional process.
AFFIRMED

7