UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4791
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM L. JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph Robert Goodwin,
District Judge. (3:02-cr-00148)
Submitted: November 30, 2006 Decided: January 4, 2007
Before WIDENER and NIEMEYER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE LLP, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States
Attorney, Miller A. Bushong III, Assistant United States Attorney,
Beckley, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William L. Johnson appeals the 151-month sentence he
received after his case was remanded for resentencing in light of
United States v. Booker, 543 U.S. 220 (2005). We affirm.
Johnson was initially sentenced as a career offender to
the same 151-month term after he pled guilty to distributing
cocaine base (crack). His case was remanded twice for rulings on
his motion to reconsider his sentence. We then affirmed the
sentence. United States v. Johnson, 112 F. App’x 266 (4th Cir.
Oct. 19, 2004) (No. 03-4105). The Supreme Court subsequently
vacated our judgment and remanded the case for reconsideration in
light of Booker. We found no Sixth Amendment error, but vacated
the sentence under United States v. White, 405 F.3d 208, 223-24
(4th Cir.), cert. denied, 126 S. Ct. 668 (2005), and remanded for
resentencing under an advisory guideline scheme because the
district court’s comments at sentencing indicated that it was
dissatisfied with the mandatory guideline system and unhappy with
the length of the guideline sentence. United States v. Johnson,
166 F. App’x 85 (4th Cir. Feb. 10, 2006) (No. 03-4105).
On remand, Johnson requested a downward variance based
on his age (he was sixty-seven) and health problems. However, at
the resentencing hearing, the district court made the following
finding:
I cannot find, given the criminal history of this
defendant, even with his substantial and substantially
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serious and long-lasting health problems that a variance
would stand up. And I believe that with a Criminal
History Category of VI that a sentence at the bottom of
the guideline range is a reasonable sentence, and that a
sentence below that would be unreasonable, or at least
incapable of being sustained by lengthy explanation of
other factors.
The court also expressed its view that the discretion afforded it
under Booker was largely illusory because a downward variance would
be unlikely to be upheld.
We have held that, in a post-Booker sentencing, the court
must calculate the advisory guideline range and then consider
whether that range “serves the factors set forth in § 3553(a)[*]
and, if not, select a sentence that does serve those factors.”
United States v. Green, 436 F.3d 449, 456 (4th Cir.), cert. denied,
126 S. Ct. 2309 (2006). In selecting a sentence that serves the §
3553(a) factors, “the district court should first look to whether
a departure is appropriate based on the Guidelines Manual or
relevant case law.” United States v. Moreland, 437 F.3d 424, 432
(4th Cir.), cert. denied, 126 S. Ct. 2054 (2006). If the resulting
departure range does not address the court’s concerns, the district
court may impose a variance sentence. Id. If the district court
imposes a variance sentence, “[t]he district court must articulate
the reasons for the sentence imposed, particularly explaining any
departure or variance from the guideline range” in light of the
factors in § 3553(a). Id.; Green, 436 F.3d at 456.
*
18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2006).
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We review a post-Booker sentence “to determine whether
the sentence is within the statutorily prescribed range and is
reasonable.” Moreland, 437 F.3d at 433 (internal quotation marks
and citation omitted). “[A] sentence within the proper advisory
Guidelines range is presumptively reasonable.” United States v.
Johnson, 445 F.3d 339, 341 (4th Cir. 2006) (citations omitted).
A post-Booker sentence may be unreasonable for procedural
or substantive reasons. “A sentence may be procedurally
unreasonable, for example, if the district court provides an
inadequate statement of reasons . . . . A sentence may be
substantively unreasonable if the court relies on an improper
factor or rejects policies articulated by Congress or the
Sentencing Commission.” Moreland, 437 F.3d at 434 (citations
omitted). “[A] district court’s explanation should provide some
indication (1) that the court considered the § 3553(a) factors with
respect to the particular defendant; and (2) that it has also
considered the potentially meritorious arguments raised by both
parties about sentencing.” United States v. Montes-Pineda, 445
F.3d 375, 380 (4th Cir. 2006) (citations omitted), petition for
cert. filed, ___ U.S.L.W. ___ (U.S. July 21, 2006) (No. 06-5439).
“[I]n determining whether there has been an adequate explanation,
[this court does] not evaluate a court’s sentencing statements in
a vacuum.” Id. at 381. Rather, “[t]he context surrounding a
district court’s explanation may imbue it with enough content for
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[this court] to evaluate both whether the court considered the
§ 3553(a) factors and whether it did so properly.” Id.
Here, the district court sentenced Johnson to the bottom
of the advisory sentencing guideline range after considering the
arguments of counsel. Johnson attempts to rebut the presumption of
reasonableness by arguing that the court’s expressed reasons for
denying him a variance were vague, and did not address what the
court may have believed was the appropriate sentence. We note that
we remanded Johnson’s case most recently for the specific purpose
of allowing the district court to exercise its discretion and
impose what it considered to be the appropriate sentence without
the restrictions of a mandatory guideline scheme. The court chose
to impose a sentence within the guideline range. We conclude that
the sentence was reasonable.
We therefore affirm the sentence imposed by the district
court. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
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