United States v. Johnson

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 09-4622

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAYVIUS MARKIESE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of
South Carolina, at Greenville. G. Ross Anderson, Jr., Senior
District Judge. (6:03-cr-00682-GRA-2)

Submitted: February 18, 2010 Decided: February 23, 2010

Before WILKINSON, MICHAEL, and KING, Circuit Judges.

Affirmed by unpublished per curiam opinion.

David W. Plowden, Assistant Federal Public Defender, Greenville,
South Carolina, for Appellant. W. Walter Wilkins, III, United
States Attorney, Columbia, South Carolina, Maxwell B. Cauthen,
III, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

Jayvius Johnson appeals from his thirty-six month

sentence, imposed upon revocation of his supervised release. On

appeal, Johnson contends the district court failed to adequately

explain the basis for its decision to depart upward from the

policy statement range (seven to thirteen months) and argues

that his sentence is plainly unreasonable, both procedurally and

substantively.

We will affirm a sentence imposed after revocation of

supervised release if it is not plainly unreasonable. United

States v. Crudup, 461 F.3d 433, 437 (4th Cir. 2006). The

sentence first must be assessed for reasonableness, “follow[ing]

generally the procedural and substantive considerations that we

employ in our review of original sentences, . . . with some

necessary modifications to take into account the unique nature

of supervised release revocation sentences.” Id. at 438-39.

Only if a sentence is found procedurally or substantively

unreasonable will this court “decide whether the sentence is

plainly unreasonable.” Id. at 439.

Although the district court must consider the Chapter

7 policy statements and the requirements of 18 U.S.C.

§§ 3553(a), 3583 (2006), “the [district] court ultimately has

broad discretion to revoke its previous sentence and impose a

term of imprisonment up to the statutory maximum.” Crudup, 461

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F.3d at 439. “[A] court’s statement of its reasons for going

beyond non-binding policy statements in imposing a sentence

after revoking a . . . supervised release term need not be as

specific as has been required when courts departed from

guidelines.” Id.

Johnson’s challenge to the reasonableness of his

sentence lacks merit. Johnson admitted the charged failure to

pay restitution and stated that he had no excuse. The court

noted that Johnson was back for the second time for the same

violation, that he was trying to avoid paying back the funds,

and that Johnson was consistently defiant in court. In response

to Johnson’s motion for reconsideration, the court stated that

it had considered the applicable statutory factors and noted

that Johnson’s failure to pay restitution was a continuing,

monthly problem and that Johnson had lied about making payments,

about his change in address, and about his employment status.

The court further considered that Johnson was charged with

obtaining goods under false pretenses during his supervised

release and had been noncompliant throughout his term. We

conclude that the record shows that the district court carefully

evaluated the circumstances and reached a reasonable conclusion

that the maximum sentence was appropriate.

For the foregoing reasons, we find the sentence

imposed was reasonable and thus affirm the district court’s

3
judgment. 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