United States v. Johnson , 294 F. App'x 4 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4436
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARCUS JOHNSON, a/k/a Jay Johnson,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Robert C. Chambers,
District Judge. (3:06-cr-00220-1)
Submitted: September 16, 2008 Decided: September 18, 2008
Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Mary Lou Newberger, Federal Public Defender, George H. Lancaster,
Jr., Assistant Federal Public Defender, Jonathan D. Byrne, OFFICE
OF THE FEDERAL PUBLIC DEFENDER, Charleston, West Virginia, for
Appellant. Karen L. Bleattler, Joanne Vella Kirby, Assistant
United States Attorneys, Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Marcus Johnson pled guilty pursuant to a written plea
agreement to distribution of cocaine base, in violation of 21
U.S.C. § 841(a)(1) (2000) (“Count One”); and possessing, using, and
carrying a firearm during and in relation to a drug trafficking
crime, in violation of 18 U.S.C.A. § 924(c)(1)(A) (West 2000 &
Supp. 2008) (“Count Three”). Johnson was sentenced to a total term
of imprisonment of seventy-two months and one day. Finding no
error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
grounds for appeal, but questioning whether Johnson’s sentence is
greater than necessary to comply with the purposes of sentencing
expressed in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008).
Although Johnson was notified of his right to file a pro se
supplemental brief, he did not do so, and the Government elected
not to file a responding brief.
When determining a sentence, the district court must
calculate the appropriate advisory Guidelines range and consider it
in conjunction with the factors set forth in § 3553(a). Gall v.
United States, 128 S. Ct. 586, 596 (2007). Appellate review of a
district court’s imposition of a sentence, “whether inside, just
outside, or significantly outside the Guidelines range,” is for
abuse of discretion. Id. at 591. Sentences within the applicable
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Guidelines range may be presumed by the appellate court to be
reasonable. United States v. Pauley, 511 F.3d 468, 473 (4th Cir.
2007).
The district court followed the necessary procedural
steps in sentencing Johnson, appropriately treating the Sentencing
Guidelines as advisory, properly calculating and considering the
applicable Guidelines range, and weighing the relevant § 3553(a)
factors. Furthermore, Johnson’s sentence, which is well below the
applicable Guidelines range for Count One and no greater than the
statutory minimum for Count Three, may be presumed reasonable.
Thus, we conclude that the district court did not abuse its
discretion in imposing the chosen sentence.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm the judgment of the district court.
This court requires that counsel inform their client, in writing,
of his right to petition the Supreme Court of the United States for
further review. If the client requests that a petition be filed,
but counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsels’ motion must state that a copy thereof
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before the court and argument would not aid in the
decisional process.
AFFIRMED
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