UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4395
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
CHRISTIAN JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Newport News. Henry Coke Morgan, Jr.,
Senior District Judge. (4:12-cr-00083-HCM-TEM-1)
Submitted: November 14, 2013 Decided: January 17, 2014
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
Paul G. Watson IV, PAUL G. WATSON IV, PC, Eastville, Virginia,
for Appellant. Louis Albert Crisostomo, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C.; Howard Jacob Zlotnick,
Assistant United States Attorney, Newport News, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Christian Johnson appeals his convictions and 385-
month sentence imposed after he pled guilty, pursuant to a plea
agreement, to one count of interference with commerce by
robbery, in violation of 18 U.S.C. § 1951 (2012), and two counts
of possessing and brandishing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C. § 924(c) (2012).
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), because appellant specifically
desired to appeal his sentence. Counsel acknowledges that
Johnson was sentenced to the statutory minimum on the firearm
counts and one month on the robbery count, but questions whether
the sentence was excessive. Johnson was informed of his right
to file a pro se supplemental brief, but has not filed a brief.
The Government declined to file a brief.
This court reviews a sentence for procedural and
substantive reasonableness under an abuse of discretion
standard. Gall v. United States, 552 U.S. 38, 51 (2007). The
same standard applies whether the sentence is “inside, just
outside, or significantly outside the Guidelines range.” United
States v. Rivera-Santana, 668 F.3d 95, 100-01 (4th Cir.)
(internal citation and quotation marks omitted), cert. denied,
133 S. Ct. 274 (2012). In determining procedural
reasonableness, this court considers whether the district court
2
properly calculated the defendant’s advisory Guidelines range,
gave the parties an opportunity to argue for an appropriate
sentence, considered the 18 U.S.C. § 3553(a) (2012) factors,
selected a sentence based on clearly erroneous facts, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
49-51. In reviewing any sentence outside the Guidelines range,
the appellate court must give due deference to the sentencing
court’s decision because it has “flexibility in fashioning a
sentence outside of the Guidelines range,” and need only “set
forth enough to satisfy the appellate court that it has
considered the parties’ arguments and has a reasoned basis” for
its decision. United States v. Diosdado-Star, 630 F.3d 359, 364
(4th Cir. 2011), (citing Gall, 552 U.S. at 56); see also United
States v. Carter, 564 F.3d 325, 328 (4th Cir. 2009) (sentencing
court “must make an individualized assessment based on the facts
presented”) (citation and emphasis omitted).
If the sentence is free of procedural error, the court
reviews it for substantive reasonableness, taking into account
the totality of the circumstances. Gall, 552 U.S. at 51. This
court presumes that a sentence within or below a properly
calculated Guidelines range is substantively reasonable. United
States v. Susi, 674 F.3d 278, 289 (4th Cir. 2012). Moreover, a
statutorily required sentence is per se reasonable. United
States v. Farrior, 535 F.3d 210, 224 (4th Cir. 2008).
3
In this case, as counsel notes in the Anders brief,
the district court sentenced Johnson to the statutorily mandated
sentences of eighty-four and 300 months on the § 924(c) counts,
which must be consecutive to each other and to the sentence on
any other count. See Abbott v. United States, 131 S. Ct. 18
(2010) (sentences for violation of § 924(c) are mandatorily
consecutive to sentence for any other offenses). On the robbery
count, the court varied downward from the Guidelines range and
imposed a sentence of only one month. Johnson does not assert
any procedural error in the determination of his sentence, and
our review of the record reveals that the district court
correctly calculated the Guidelines range on the robbery count
and determined that consecutive sentences of eighty-four and 300
months were required on the firearm counts, considered the
§ 3553(a) factors, and adequately explained its sentence. The
sentence is thus procedurally reasonable. The sentence is also
substantively reasonable, as the district court could not have
imposed less than the statutory mandatory minimum sentences, and
its sentence on the robbery count is less than two percent of
the bottom of the Guidelines range on that count. United
States v. Robinson, 404 F.2d 850, 862 (4th Cir. 2005) (absent
government motion for departure for substantial assistance under
§ 3553(e), district court has no discretion to sentence below
statutory minimum).
4
In accordance with Anders, we have reviewed the record
in this case and have found no meritorious issues for appeal.
We therefore affirm Johnson’s convictions and sentence. We
remand to the district court, however, for correction of two
minor clerical errors in the written judgment. The “nature of
offense” description of the § 924(c) counts should be amended to
read “Possessing and Brandishing a Firearm in Furtherance of a
Crime of Violence,” and the count numbers should be amended to
reflect that the counts were in a superseding indictment. This
court requires that counsel inform Johnson, in writing, of the
right to petition the Supreme Court of the United States for
further review. If Johnson requests that a petition be filed,
but counsel believes that such a petition would be frivolous,
then counsel may move in this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Johnson.
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 AND REMANDED
5