Date: 04-23-2015

Case Style: United States of America v. Marcus Johnson a/k/a Jay Johnson

Case Number: 14-4840

Judge: Per Curiam

Court: United States Court of Appeals for the Fourth Circuit on appeal from the District of West Virginia (Cabell County)

Plaintiff's Attorney: David Schles

Defendant's Attorney: Joseph Franklin

Description: CURIAM:
Marcus Johnson appeals the district court’s judgment
revoking his term of supervised release and sentencing him to 18
months’ imprisonment, less 1 day, and 30 months’ supervised
release. Counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
evidence was sufficient to support the court’s finding that
Johnson violated a condition of supervised release and whether
the sentence was procedurally and substantively reasonable.
Although advised of his right to file a pro se supplemental
brief, Johnson has not done so. The Government has declined to
file a response brief. Following our careful review of the
record, we affirm.
A district court’s judgment revoking supervised release and
imposing a term of imprisonment is reviewed for abuse of
discretion. United States v. Pregent, 190 F.3d 279, 282 (4th
Cir. 1999); United States v. Copley, 978 F.2d 829, 831 (4th Cir.
1992). The district court need only find a violation of a
condition of supervised release by a preponderance of the
evidence. 18 U.S.C. § 3583(e)(3) (2012); Copley, 978 F.2d at
831. A preponderance of the evidence “simply requires the trier
of fact to believe that the existence of a fact is more probable
3
than its nonexistence.” United States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (internal quotation marks omitted).
We conclude that the district court did not abuse its discretion in finding that Johnson violated two conditions of supervised release. Johnson voluntarily conceded to one of the two violations, and the evidence clearly supported the court’s finding that Johnson committed a second violation.
“A district court has broad discretion when imposing a sentence upon revocation of supervised release.” United States v. Webb, 738 F.3d 638, 640 (4th Cir. 2013). We will affirm a revocation sentence if it falls within the prescribed statutory range and is not plainly unreasonable. Id. In making this determination, we first consider whether the sentence imposed is procedurally or substantively unreasonable, applying the same general considerations employed in review of original criminal sentences. United States v. Crudup, 461 F.3d 433, 438 (4th Cir. 2006). “This initial inquiry takes a more deferential appellate posture concerning issues of fact and the exercise of discretion than reasonableness review for [Sentencing G]uidelines sentences.” United States v. Moulden, 478 F.3d 652, 656 (4th Cir. 2007) (internal quotation marks omitted). Only if we find the sentence unreasonable will we consider whether it is “plainly” so. Id. at 657 (internal quotation marks omitted).
4
A supervised release revocation sentence is procedurally reasonable if the district court considered the policy statements contained in Chapter Seven of the Sentencing Guidelines and the 18 U.S.C. § 3553(a) (2012) factors applicable to revocation sentences. 18 U.S.C. § 3583(e); Webb, 738 F.3d at 641. Although a district court must provide a statement of reasons for the sentence it imposes, it “need not be as detailed or specific when imposing a revocation sentence as it must be when imposing a post-conviction sentence[.]” United States v. Thompson, 595 F.3d 544, 547 (4th Cir. 2010). A revocation sentence is substantively reasonable if the district court stated a proper basis for concluding the defendant should receive the sentence imposed, up to the statutory maximum. Crudup, 461 F.3d at 440. Our review of the record reveals no procedural or substantive error by the district court. We thus conclude that Johnson’s sentence is not plainly unreasonable.
In accordance with Anders, we have reviewed the record and have found no meritorious issues for appeal. We therefore affirm the district court’s judgment. 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.
5
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.

Outcome: AFFIRMED

Plaintiff's Experts:

Defendant's Experts:

Comments: