U.S. v. Johnson, 05-4378.

• Citation: 445 F.3d 339
• Decision Date: 07 April 2006
• Docket Number: No. 05-4378.,05-4378.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Artez Lamont JOHNSON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

445 F.3d 339

UNITED STATES of America, Plaintiff-Appellee, v. Artez Lamont JOHNSON, Defendant-Appellant.

No. 05-4378.

United States Court of Appeals, Fourth Circuit.

Argued February 1, 2006.

Decided April 7, 2006.

ARGUED: Bridgett Britt Aguirre, Fuquay-Varina, North Carolina, for Appellant. Christine Witcover Dean, Assistant United States Attorney, Office of the United States Attorney, Raleigh, North Carolina, for Appellee. ON BRIEF: Frank D. Whitney, United States Attorney, Anne M. Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Before WILKINS, Chief Judge, and WILKINSON and LUTTIG, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Chief Judge WILKINS and Judge LUTTIG joined.

OPINION

WILKINSON, Circuit Judge.

In this case we address both substantive and procedural challenges to the reasonableness of a sentence imposed within a properly calculated advisory Sentencing Guidelines range. We reject both challenges and affirm the sentence.

I.

On December 10, 2003, a confidential informant and an undercover officer contacted defendant Artez Lamont Johnson about a drug purchase. Johnson agreed to sell drugs, and arranged for their delivery with the assistance of Travis Leon Webb. That same day, the confidential informant and undercover officer purchased 24.3 grams of crack cocaine and 13.9 grams of powder cocaine from Johnson for $1500. On December 17, 2003, the undercover officer again contacted defendant for drugs. The two met, and Johnson sold the officer 18.7 grams of crack cocaine and seven grams of powder cocaine for $1000.

Several weeks later, on February 1, 2004, a police officer with the Roanoke Rapids, North Carolina Police Department stopped defendant for speeding. After smelling marijuana, the officer requested permission to search the vehicle, and Johnson consented. The officer discovered 22.8 grams of crack cocaine in a hidden compartment in the car, as well as related drug paraphernalia. Defendant was arrested.

On September 16, 2004, Johnson was charged in a three-count indictment. Count One alleged that Johnson aided and abetted Travis Leon Webb in the distribution of more than five grams of cocaine base (crack cocaine) and a quantity of cocaine. See 18 U.S.C. § 2 (2000); 21 U.S.C. § 841(a)(1) (2000). Count Two charged distribution of more than five grams of cocaine base and a quantity of cocaine, see id., and Count Three charged possession with intent to distribute more than five grams of cocaine base, see id. On November 16, 2004, defendant pled guilty to all three counts.

The U.S. Sentencing Guidelines Manual § 3D1.2 (2004) provides that "[a]ll counts involving substantially the same harm shall be grouped together," and that this grouping applies, inter alia, "[w]hen the offense level is determined largely on the basis of ... the quantity of a substance involved." Relying on this provision, the presentence report totaled the amount of cocaine in defendant's various charges, and recommended a base offense level of 32. It also proposed a three-level reduction for acceptance of responsibility, for a final offense level of 29. Combined with a criminal history category of II, the applicable Guidelines range was 97 to 121 months in prison.

Johnson did not object to this Guidelines calculation, but contended that, with the Guidelines now advisory, see United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 756-57, 160 L.Ed.2d 621 (2005), the district court should not apply § 3D1.2's drug quantity grouping provision. The district court disagreed, concluding that Johnson's suggestion would "gut[ ] the guidelines." Following the recommendation in the presentence report, the district court instead determined that the proper range was 97 to 121 months. It thereafter sentenced defendant on each count to 97 months in prison and five years of supervised release, with the sentences to run concurrently. Defendant noted a timely appeal.

II.

Defendant was sentenced under the advisory Sentencing Guidelines, and we thus review his sentence for reasonableness. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 765, 160 L.Ed.2d 621 (2005); United States v. Green, 436 F.3d 449, 456 (4th Cir.2006). "The reasonableness of a sentence ultimately will turn on the particular factors of each case," but "certain principles would appear to be universally applicable." United States v. Moreland, 437 F.3d 424, 433 (4th Cir.2006). Foremost among these is that a sentence within the proper advisory Guidelines range is presumptively reasonable. See id.; Green, 436 F.3d at 457. This approach to post-Booker appellate review is required for three basic reasons: the process by which the Guidelines were established, their incorporation of Congress's sentencing objectives, and the individualized factfinding required to apply them.

While we stated in both Moreland and Green that Guidelines sentences are presumptively reasonable, neither case involved a sentence within a properly calculated Guidelines range. See Moreland, 437 F.3d at 435 (variance sentence); Green, 436 F.3d at 458 (incorrectly calculated Guidelines range). Because the instant case presents our first occasion to apply this presumption, we take this opportunity to briefly explore the three justifications outlined above in greater detail.

A.

The first reason that Guidelines sentences are presumptively reasonable under Booker is the legislative and administrative process by which they were created. Dissatisfied with widespread sentencing disparities among offenders who engaged in similar criminal conduct, Congress in the Sentencing Reform Act of 1984 established the United States Sentencing Commission and charged it with devising a set of determinate sentencing guidelines. See 18 U.S.C.A. § 3551 et seq. (West 2005); 28 U.S.C.A. § 991 et seq. (West 2005); Booker, 125 S.Ct. at 762; Mistretta v. United States, 488 U.S. 361, 366-70, 109 S.Ct. 647,102 L.Ed.2d 714 (1989). Though its goals were overarching, see 28 U.S.C.A. § 991(b)(1), Congress was hardly inattentive to detail, see Mistretta, 488 U.S. at 374-77, 109 S.Ct. 647. It instructed the Commission to craft a sentencing range "for each category of offense involving each category of defendant," 28 U.S.C.A. § 994(b)(1), and to establish categories of offenses and defendants based on a variety of different factors, id. §§ 994(c), (d). While Congress granted the Commission wide discretion, that discretion was focused by both the general structure and more specific considerations that Congress enumerated. See United States v. LaBonte, 520 U.S. 751, 753, 117 S.Ct. 1673, 137 L.Ed.2d 1001 (1997).

The Sentencing Commission, in turn, promulgated offense levels, criminal history categories, and grounds for upward and downward departures. See generally U.S. Sentencing Guidelines Manual (2005). It supplemented these guidelines with policy statements and further commentary. See id.; Stinson v. United States, 508 U.S. 36, 41, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). As the Commission noted:

The Commission emphasizes that it drafted the initial guidelines with considerable caution. It examined the many hundreds of criminal statutes in the United States Code. It began with those that were the basis for a significant number of prosecutions and sought to place them in a rational order.

It developed additional distinctions relevant to the application of these provisions and it applied sentencing ranges to each resulting category. In doing so, it relied upon pre-guidelines sentencing practice as revealed by its own statistical analyses based on summary reports of some 40,000 convictions, a sample of 10,000 augmented presentence reports, the parole guidelines, and policy judgments.

U.S. Sentencing Guidelines Manual § 1A1.1 cmt. background (2005) (reproducing comments to the 1990 amendments). This research is ongoing, as the Commission is instructed to periodically review and revise the Guidelines. See 28 U.S.C.A. § 994(o); Booker, 125 S.Ct. at 766. The Commission may also only promulgate guidelines pursuant to the publication and hearing requirements of informal rulemaking. See 28 U.S.C.A. § 994(x); Stinson, 508 U.S. at 44-45, 113 S.Ct. 1913. Moreover, Congress was free to modify or reject any guideline when first promulgated, see Act of Oct. 12, 1984, Pub. L. No. 98-473, § 235, 98 Stat. 1837, 2032, and remains free to do so now, see 28 U.S.C.A. § 994(p); Mistretta, 488 U.S. at 393-94, 109 S.Ct. 647.

By now, the Guidelines represent approximately two decades of close attention to federal sentencing policy. See United States v. Mykytiuk, 415 F.3d 606, 607 (7th Cir.2005). It would be an oddity, to say the least, if a sentence imposed pursuant to this congressionally sanctioned and periodically superintended process was not presumptively reasonable.

B.

The second reason that Guidelines sentences are presumptively reasonable is that the process described above has led to the incorporation into the Guidelines of the factors Congress identified in 18 U.S.C.A § 3553(a) as most salient in sentencing determinations.^*

Congress in fact instructed the Commission to take these § 3553(a) factors into account when constructing the Guidelines. See 28 U.S.C.A. §§ 991(b)(1)(A), (b)(2); 994(a)(2), (b)(1), (g), (m). The Commission has done so. Initially, by devising a recommended sentencing range for every type of misconduct and every level of criminal history, the Guidelines as a whole embrace "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." 18 U.S.C.A. § 3553(a)(6). Indeed, uniformity of sentencing was one of the Guidelines' primary purposes, see Booker, 125 S.Ct. at 761; Mistretta, 488 U.S. at 366-67, 109 S.Ct. 647, and the Guidelines themselves thus constitute one of the factors in § 3553(a), see 18 U.S.C.A. § 3553(a)(4).

The § 3553(a) factors are built into the Guidelines in...