UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4242
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
versus
JONATHAN PAUL JOHNSON,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (CR-04-545)
Argued: February 2, 2006 Decided: April 12, 2006
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion. Judge
Gregory wrote a separate opinion concurring in the judgment.
ARGUED: Stacey Denise Haynes, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellant. Joshua Snow Kendrick, Columbia, South Carolina, for
Appellee. ON BRIEF: Jonathan S. Gasser, Acting United States
Attorney, Columbia, South Carolina, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Jonathan Paul Johnson pled guilty to one count of being a
felon in possession of a firearm and one count of possession with
intent to distribute a quantity of cocaine and a quantity of
marijuana. The Pre-Sentence Investigation Report (“PSR”)
designated Johnson as a career offender and assigned him an offense
level of 34 with a criminal history of VI, which produced a
sentencing guideline range of 262-327 months of imprisonment.
During a sentencing hearing where neither party objected to the
PSR, the district court accepted this range; however, without
explanation, the district court varied from the range and sentenced
Johnson to two concurrent 120-month terms of imprisonment. The
United States now appeals this sentence pursuant to 18 U.S.C. §
3742(b), arguing that the sentence is unreasonable. For the
reasons set forth below, we vacate and remand this case for
resentencing.
Approximately one month before the district court sentenced
Johnson, the Supreme Court decided United States v. Booker, 543
U.S. 220 (2005), effectively rendering the federal sentencing
guidelines advisory and establishing a “reasonableness” standard of
sentencing review. Despite the advisory nature of the guidelines,
our cases applying Booker have emphasized that when sentencing a
defendant, a district court must still calculate the proper
guideline range and consider that range along with other relevant
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factors set forth in the guidelines and in 18 U.S.C. § 3553(a), and
if the district court “imposes a sentence outside the guideline
range, it should explain its reason for doing so.” United States
v. White, 405 F.3d 208, 216 (4th Cir. 2005); United States v.
Hughes, 401 F.3d 540, 546 (4th Cir. 2005). The explanation of a
sentence outside the guideline range “must be tied to the factors
set forth in § 3553(a) and must be accompanied by findings of fact
as necessary.” United States v. Moreland, 437 F.3d 424, 432 (4th
Cir. 2006). Moreover, if a sentence “is imposed outside the
Guideline range and the district court provides an inadequate
statement of reasons . . . in departing from the Guidelines’
recommendation,” then that sentence “will be found unreasonable and
vacated.” United States v. Green, 436 F.3d 449, 457 (4th Cir.
2006).
As noted, the district court accepted the guideline range of
262-327 months. Before imposing sentence, the district court
discussed the case generally with Johnson and his counsel. This
discussion centered on the fact that Johnson was a young man with
children and that he had grown up in a bad neighborhood. During
this discussion, Johnson’s counsel requested that the judge
sentence Johnson to concurrent 120-month sentences. In response,
counsel for the government reviewed Johnson’s criminal history and
urged a sentence within the guideline range. After some further
discussion with Johnson, the district court pronounced the
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sentence, varying from the guideline range and imposing the
concurrent 120-month sentences. In doing so, the district court
offered no explanation for its decision to sentence Johnson below
the guideline range. Although the government objected based on the
sentence being outside the guideline range, the district court
noted the objection but did not elaborate on the basis for the
sentence.
In this circumstance, we vacate and remand this case so that
the district court can resentence Johnson in a manner consistent
with our post-Booker precedent. We express no opinion on the
ultimate issue of whether the 120-month sentence is appropriate.*
VACATED AND REMANDED
*
Although neither party objected to the sentencing range in
the district court, they now both assert that the PSR miscalculated
the sentencing range and that it actually should have been 188-235
months. Even so, Johnson’s 120-month sentence still falls below
the sentencing range and requires explanation by the district
court.
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GREGORY, Circuit Judge, concurring in the judgment:
Although I concur in the judgment, I write separately to note
that the record in this case could support the district court’s 68-
month downward variance. For example, at the sentencing hearing,
the district court discussed various aspects of Johnson’s history
and characteristics, touching upon his youth, education, four
dependent children, and the difficult familial circumstances that
contributed to his criminal activities. Further, the presentence
investigation report detailed Johnson’s experiences as a sixteen-
year-old honor roll student who, upon being uprooted to a drug-
riddled neighborhood, committed three felony offenses over the next
two years to support his mother and three younger sisters.
Finally, the record could lead one to conclude that the Guidelines
range overstated Johnson’s criminal history by including a career
criminal offender enhancement for offenses committed in quick
succession during Johnson’s troubled youth, two of which were
punished by concurrent sentences. Indeed, prior to United States
v. Booker, 543 U.S. 220 (2005), several courts of appeals affirmed
the use of substantial downward departures under U.S.S.G. § 4A1.3
where the career criminal offender enhancement overstated the
defendant’s criminal history. See, e.g., United States v. Bowser,
941 F.2d 1019, 1026 (10th Cir. 1991) (affirming the district
court’s determination that the career criminal offender enhancement
over-represented the defendant’s criminal history where the
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defendant committed the predicate offenses at age twenty, the
offenses were committed in close proximity to one another, and were
punished by concurrent sentences; affirming the resulting downward
departure from a Guidelines range of 262-327 months to 92-115
months). See also United States v. Feemster, 435 F.3d 881, 883-84
(8th Cir. 2006) (remarking that it was appropriate for the district
court to consider the defendant’s history and characteristics in
deciding whether a career criminal offender enhancement overstated
the defendant’s criminal history, particularly where a juvenile
conviction increased substantially the Guidelines range).
Therefore, under the circumstances, the district court’s decision
to vary and the degree of the variance could be reasonable if
supported by a sufficient explanation from the district court.
Here, however, the district court, which, of course, had to
proceed without the guidance of United States v. Green, 436 F.3d
449 (4th Cir. 2006), and United States v. Moreland, 437 F.3d 424
(4th Cir. 2006), did not explicitly set forth how Johnson’s history
and characteristics--or any other mitigating facts--supported both
the decision to vary and the extent of the variance. Accordingly,
I concur in the judgment to remand for resentencing.
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