UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4622
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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
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