UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5041
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELMONTA RASHEED JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. N. Carlton Tilley,
Jr., Senior District Judge. (1:12-cr-00152-NCT-1)
Submitted: August 30, 2013 Decided: September 12, 2013
Before KING, AGEE, and THACKER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patrick Michael Megaro, BROWNSTONE, P.A., Winter Park, Florida,
for Appellant. Ripley Rand, United States Attorney, T. Nick
Matkins, Special Assistant United States Attorney, Greensboro,
North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Delmonta Rasheed Johnson pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1) (2006), and was sentenced to 120 months in prison.
Johnson asserts that the district court’s judicial fact-finding
at sentencing, which resulted in a nine-level increase in his
total offense level, violated his right to a jury trial and
United States v. Booker, 543 U.S. 220 (2005), as well as his
Eighth Amendment right to be free from excessive punishment.
Finding no error, we affirm.
Although claims of constitutional error are reviewed
de novo, United States v. Malloy, 568 F.3d 166, 180 (4th Cir.
2009), we review the district court’s factual findings
underlying its application of a sentencing enhancement for clear
error, and its legal conclusions de novo. United States v.
Alvarado Perez, 609 F.3d 609, 612 (4th Cir. 2010).
We reject Johnson’s argument that his right to a jury
trial was violated by the district court’s judicial fact-finding
at sentencing. Because Johnson was sentenced to the statutory
maximum applicable to his offense, none of the enhancements to
Johnson’s base offense level resulted in a sentence greater than
that authorized by his guilty plea. 18 U.S.C. § 924(a)(2)
(2006). Accordingly, the district court did not violate the
Sixth Amendment or Booker in applying the enhancements. See
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Rita v. United States, 551 U.S. 338, 352 (2007) (recognizing
that the Supreme Court’s “Sixth Amendment cases do not
automatically forbid a sentencing court to take account of
factual matters not determined by a jury and to increase the
sentence in consequence”); Booker, 543 U.S. at 232-44 (holding
that judge-found sentence enhancements mandatorily imposed under
the Guidelines that result in a sentence greater than that
authorized by the jury verdict or facts admitted by the
defendant violate the Sixth Amendment’s guarantee of the right
to trial by jury); United States v. Benkahla, 530 F.3d 300, 312
(4th Cir. 2008) (holding that, as long as the Guidelines range
is treated as advisory, a sentencing court may consider and find
facts by a preponderance of the evidence, provided that those
facts do not increase a sentence beyond the statutory maximum);
United States v. Battle, 499 F.3d 315, 322-23 (4th Cir. 2007)
(stating that the district court did not violate the Sixth
Amendment by imposing a sentence based on facts not found by a
jury).
Although Johnson also complains that the district
court was not authorized to deny him credit for acceptance of
responsibility based on conduct the district court found
relevant to the underlying conviction, the Guidelines make clear
that “a defendant who falsely denies, or frivolously contests,
relevant conduct that the court determines to be true has acted
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in a manner inconsistent with acceptance of responsibility[.]”
U.S. Sentencing Guidelines Manual (“USSG”) § 3E1.1 cmt. n.1(A)
(2011). The Guidelines also make clear that committing,
suborning, or attempting to suborn perjury—which the district
court explicitly found Johnson did—are examples of conduct that
warrant the obstruction of justice enhancement. See USSG
§ 3C1.1 cmt. n.4(B) (2011). Accordingly, we discern no error in
the district court’s decision to deny Johnson a reduction in his
offense level for acceptance of responsibility, and to increase
the offense level because he obstructed justice by committing
perjury and allowing others to do so in his defense.
Johnson also asserts that the district court erred
when it determined that his cocaine possession constituted a
drug trafficking crime justifying a four-level enhancement under
USSG § 2K2.1(b)(6)(B), because he argues he was not convicted of
cocaine possession, and because the district court allegedly
made erroneous factual findings. It is well-established,
however, “that a sentencing court may consider uncharged and
acquitted conduct in determining a sentence, as long as that
conduct is proven by a preponderance of the evidence.” United
States v. Grubbs, 585 F.3d 793, 799 (4th Cir. 2009).
Moreover, we review a district court’s factual
findings for clear error and afford the “highest degree of
appellate deference” to those factual findings when they are
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based on assessments of witness credibility. See United States
v. Thompson, 554 F.3d 450, 452 (4th Cir. 2009). In this case,
the district court explicitly stated it was rejecting Johnson’s
version of the events because it believed his version was
fabricated. We defer to the district court’s credibility
determination.
We also reject Johnson’s argument that his sentence
violates the Eighth Amendment. In this regard, Johnson claims
that his sentence is excessive because it was increased based on
“extraneous culpability for facts [with which he] was neither
charged, nor conceded, nor convicted[,]” and because he
summarily claims the sentence failed to take into account his
life and characteristics. To the extent that Johnson’s argument
could be construed as suggesting he received a sentence
disproportionate to others convicted of being a felon in
possession of a firearm, “proportionality review [under the
Eighth Amendment] is not available for any sentence less than
life imprisonment without the possibility of parole.” United
States v. Ming Hong, 242 F.3d 528, 532 (4th Cir. 2001).
Moreover, and Johnson’s argument to the contrary, the record
establishes that the district court fully considered Johnson’s
individual circumstances and justified why it believed the
statutory maximum sentence should be imposed in this case.
Because the district court was authorized to increase Johnson’s
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offense level based on facts it found by a preponderance of the
evidence, and since the district court imposed the statutory
maximum applicable to Johnson’s crime and adequately justified
that sentence under the Guidelines and relevant 18 U.S.C.A.
§ 3553(a) (West 2000 & Supp. 2013) factors, we discern no
procedural, substantive or constitutional error in Johnson’s
sentence.
We have considered Johnson’s arguments and affirm the
district court’s judgment. We dispense with oral argument
because the facts and legal contentions are adequately presented
in the materials before this court and argument would not aid
the decisional process.
AFFIRMED
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