United States v. David Johnson

FILED
NOT FOR PUBLICATION AUG 06 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 08-30148

Plaintiff - Appellant, D.C. No. 3:06-cr-00096-KI

v.
MEMORANDUM*
DAVID ANTHONY JOHNSON,

Defendant - Appellee.

UNITED STATES OF AMERICA, No. 08-30149

Plaintiff - Appellant, D.C. No. 3:07-cr-00310-KI

v.

DAVID ANTHONY JOHNSON,

Defendant - Appellee.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Submitted July 13, 2010**
Portland, Oregon

Before: GOODWIN, PREGERSON and WARDLAW, Circuit Judges.

The United States of America (“the government”) appeals the sentence

imposed upon David Anthony Johnson (“Johnson”). The parties are familiar with

the facts of this case, which we repeat here only to the extent necessary to explain

our decision. We review the substantive reasonableness of Johnson’s sentence for

abuse of discretion, United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009), and

affirm.

The Sentencing Guidelines “constitute[] only a touch-stone in the district

court's sentencing considerations.” Id. at 872. The Guidelines are but one factor in

the sentencing analysis under 18 U.S.C. § 3553(a). United States v. Carty, 520

F.3d 984, 991 (9th Cir. 2008) (en banc). The district court must explain a non-

Guidelines sentence, but need not “tick off” all of the § 3553 factors. Id. at 992.

An adequate explanation may be inferred from the record as a whole. Id. at 993.

This court must give “due deference” to the district court’s analysis of the

sentencing factors. Autery, 555 F.3d at 872.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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 Here, the record clearly demonstrates that the district court properly

considered the sentencing factors. The district court explicitly discussed several

of the factors, including Johnson’s criminal history, the nature of Johnson’s

offense, and the need for deterrence and punishment.

The government’s argument that the district court did not adequately

consider the need to avoid unwarranted sentencing disparities is not persuasive.

The district court’s sentencing analysis included a comparison with co-defendants

Ceasar and Pumphrey. The district court found that Johnson, like Ceasar and

Pumphrey, rendered “substantial cooperation” to the government. However,

whereas Ceasar and Pumphrey continued to engage in criminal conduct after their

“substantial cooperation,” the district court recognized that Johnson's post-arrest

conduct had been “very impressive,” “unique,” and “extraordinary.”

We conclude that the district court provided an adequate explanation of its

sentencing decision and did not abuse its discretion in weighing the § 3553

sentencing factors.

AFFIRMED.

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