NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 09-3322 and 09-3323
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UNITED STATES OF AMERICA
v.
ASHLEY J. JOHNSON,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 3-04-cr-00012-002 and 3-06-cr-00026-001)
District Judge: Honorable Kim R. Gibson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2010
Before: FISHER and COWEN, Circuit Judges, and PRATTER,* District Judge.
(Filed: September 30, 2010)
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OPINION OF THE COURT
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*
Honorable Gene E.K. Pratter, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
PRATTER, District Judge.
Ashley Johnson pled guilty to bank robbery in 2005. She was sentenced to a term
of imprisonment followed by a term of supervised release. In March of 2009, after she
completed her prison term, Ms. Johnson pled guilty to having failed to surrender for the
service of her bank robbery sentence on the appointed date in 2005, a violation of 18
U.S.C. § 3146(a)(2). She also conceded that, after leaving prison, she had violated
conditions of her supervised release. In conjunction with these latter offenses, the District
Court sentenced Ms. Johnson to two 15-month prison terms, to be served consecutively,
and in doing so, denied at least two specific requests from Ms. Johnson that would have
reduced her failure-to-surrender sentence.
Ms. Johnson appeals these two 15-month sentences, contending that the District
Court abused its discretion. We will affirm the District Court’s judgments.1
I. Factual and Procedural Background
We write exclusively for the parties, who are familiar with the factual context and
legal history of this case. Thus, we set forth only those facts necessary to our analysis.
On January 4, 2005, Ms. Johnson pled guilty to bank robbery, a violation of 18
U.S.C. § 2113(a) and 18 U.S.C. § 2(a). Four months later, the District Court sentenced
her to a term of 12 months plus one day imprisonment, to be followed by a three-year
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and this Court has
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
2
term of supervised release. Although Ms. Johnson was informed that she was required to
report to the Federal Correctional Institution in Danbury, Connecticut on May 25, 2005,
she failed to do so, and two days later, a Deputy U.S. Marshal obtained a bench warrant
for her arrest. Ms. Johnson was apprehended by Pennsylvania state troopers in Altoona,
Pennsylvania, and the U.S. Marshals Service then transferred her to the Danbury facility.
Ms. Johnson served her bank robbery sentence without incident, and she was
released from federal prison. However, in July of 2006, while she was still on supervised
release, Ms. Johnson was charged with violating Pennsylvania drug laws.2 She pled
guilty to the drug charge in the Blair County Court of Common Pleas, and was sentenced
to two to four years in prison. After approximately three years in state custody, Ms.
Johnson was paroled to a federal detainer. On March 24, 2009, she pled guilty in federal
district court to having failed to surrender for the service of her bank robbery sentence in
violation of 18 U.S.C. § 3146(a)(2). The next day, she waived her right to a preliminary
hearing regarding the revocation of her supervised release, and conceded that she had
violated its terms when she committed the aforementioned Pennsylvania drug offense.
On July 23, 2009, the District Court held a hearing to determine sentencing for Ms.
Johnson’s failure-to-surrender and revocation offenses. Regarding her sentence for her
failure to surrender, the Court considered the application of 18 U.S.C. § 3553(a), which
2
Ms. Johnson was also charged with theft in Maryland. Her mere presence in
Maryland was a violation of the terms of her supervised release.
3
identifies factors to be weighed by a sentencing court. During the hearing, Ms. Johnson
made at least two specific requests, one for a reduction of her base offense level under
U.S.S.G. § 2J1.6(b)(1)(A), on the ground that she had voluntarily surrendered within 96
hours of the time that she was scheduled to report for service of her sentence; and another
for a downward departure pursuant to U.S.S.G. § 4A1.3(b)(1), on the ground that her
criminal history category overstated the gravity of her past crimes. During the hearing,
the Court allowed Ms. Johnson to present evidence and testimony relating to these two
issues, but ultimately rejected her arguments and sentenced her to a 15-month term of
imprisonment.3 This sentence is within the calculated advisory guideline range.
Next, regarding Ms. Johnson’s revocation sentence, the District Court reviewed
her revocation report, and once again considered the § 3553(a) factors. After allowing
counsel and Ms. Johnson to present arguments relating to the § 3553(a) factors, the
District Court sentenced Ms. Johnson to an additional 15-month term of imprisonment, to
be served consecutively with her failure-to-surrender sentence. This sentence is also
within the calculated advisory guideline range.
3
The District Court reviewed Ms. Johnson’s two requests as applications for a
downward “departure,” and again as part of her petition for a variance.
4
II. Discussion
Ms. Johnson argues that her two 15-month prison sentences are each substantively
unreasonable. In addition, she claims that the District Court erred or abused its discretion
in denying her two requests relating to the failure-to-report sentence.
A. Reasonableness of the Failure-to-Report Sentence
This Court reviews Ms. Johnson’s sentence for an abuse of the District Court’s
discretion. Gall v. United States, 552 U.S. 38, 51 (2007); United States v. Tomko, 562
F.3d 558, 567 (3d Cir. 2009). The appellate review proceeds in two stages. Tomko, 562
F.3d at 567. First, we ensure that the District Court committed no significant procedural
error, such as improperly calculating the Guideline offense level range, failing to consider
the § 3553(a) factors, or failing to adequately explain the sentence. Second, we consider
the substantive reasonableness of the sentence. Id. The “touchstone of reasonableness is
whether the record as a whole reflects rational and meaningful consideration of the
[§ 3553(a) factors],” United States v. Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc).
We are “highly deferential” to the sentencing court’s application of these factors. Tomko,
562 F.3d at 568 (quoting United States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007)).
At both stages of this review, the party challenging the sentence has the burden of
showing unreasonableness. Id. at 567 (citing United States v. Cooper, 437 F.3d 324, 332
(3d Cir. 2006)). Assuming the District Court’s sentence is procedurally sound, “we will
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affirm unless no reasonable sentencing court would have imposed the same sentence on
that particular defendant for the reasons the District Court provided.” Id. at 568.
Ms. Johnson does not allege that the District Court committed a procedural error
with regard to the determination of her failure-to-report sentence, so we must consider the
substantive reasonableness of the sentence by examining the record to see whether the
District Court appropriately weighed the § 3553(a) factors in sentencing Ms. Johnson.
Having done so, we find that the record in this case “more than adequately demonstrates
the District Court’s meaningful consideration” of these factors. See United States v.
Lessner, 498 F.3d 185, 203 (3d Cir. 2007).
Although a sentencing court “need not make findings as to each factor if the record
otherwise makes clear that the court took the factors into account,” Cooper, 437 F.3d at
329, the District Court in this case considered the application of each relevant factor
explicitly. In doing so, the Court rationally related its analysis to the sentence it imposed
on Ms. Johnson for her failure to surrender. Indeed, a review of the record not only
illustrates that the Court considered and applied the law, but that the Court explained its
deliberation to the parties, and that the Court’s reasoning was cogent and thorough.
In short, Ms. Johnson has not satisfied her burden of demonstrating that the
District Court abused its discretion by handing down a procedurally flawed or
substantively unreasonable sentence for her failure-to-report offense. She has made no
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such showing, and the Court concludes there has been no evidence presented that the
District Court was unreasonable in its sentencing of the Defendant.
B. Reasonableness of the Revocation Sentence
A district court may “revoke a term of supervised release and sentence [a]
defendant to imprisonment ... if it finds, by a preponderance of the evidence, that the
defendant violated a condition of supervised release.” 18 U.S.C. § 3583(e). The law says
that where such a sentence is imposed, any term of imprisonment “shall be consecutive to
the sentence of imprisonment for any other offense.” 18 U.S.C. § 3146(b)(2).
Just as Ms. Johnson does not claim that the District Court made a procedural error
in determining her failure-to-report sentence, she likewise makes no such allegation
regarding her revocation sentence. And just as the District Court made explicit reference
to each of the relevant § 3553(a) factors in sentencing Ms. Johnson for failure to report,
the Court also reviewed these factors as it announced Ms. Johnson’s revocation sentence.
Both parties were provided with an opportunity to present arguments regarding the
application of the § 3553(a) factors to this case. After hearing these arguments, the
District Court gave Ms. Johnson a substantively reasonable sentence that was within the
advisory guideline range. The sentencing court also provided coherent reasons for its
determination, with abundant and direct reference to the considerations promulgated by
the Sentencing Commission.
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Ms. Johnson has failed to meet her burden of showing that the District Court
abused its discretion by handing down a procedurally flawed or unreasonable sentence
based on the revocation of Ms. Johnson’s supervised release.
C. Requests Relating to the Failure-to-Surrender Sentence
Under certain circumstances, the Guidelines empower sentencing courts to
downwardly depart by assigning the convicted defendant a criminal history category other
than the otherwise-applicable criminal history category. See United States v. Grier, 585
F.3d 138, 143 (3d Cir. 2009) (citing U.S.S.G. § 1B1.1 cmt. n.1(E)). A district court may
exercise its discretion to make such a ruling where “reliable information indicates that the
defendant’s criminal history category substantially over-represents the seriousness of the
defendant's criminal history or the likelihood that the defendant will commit other
crimes.” U.S.S.G. § 4A1.3(B)(1).
In this case, Ms. Johnson sought a formal downward departure on the ground that
her criminal history category of IV allegedly overstated the seriousness of her past crimes.
The District Court heard argument on this point, and found that Ms. Johnson’s category
assignment of IV correlated with the gravity of the illicit behavior that formed the basis of
her past convictions. We see no reason to disturb the District Court’s well-reasoned
exercise of discretion.
Nor can this Court divine that the District Court abused its discretion in denying
Ms. Johnson’s request that the Court reduce the offense level it used in calculating its
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sentence for her failure to report. The Guidelines provide that the base offense level for
this offense shall be reduced by five levels where a defendant “voluntarily surrendered
within 96 hours of the time [she] was originally scheduled to report.” U.S.S.G.
§ 2J1.6(b)(1)(A). The Court denied Ms. Johnson’s request for the five-point reduction on
the eminently reasonable ground that she “voluntarily” surrendered only after the state
police tracked her down at her sister’s home in Altoona.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s sentence.
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