United States of America v.  Artez Lamont Johnson

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 05-4378 
ARTEZ LAMONT JOHNSON,
Defendant-Appellant. 
Appeal from the United States District Court
for the Eastern District of North Carolina, at New Bern.
Louise W. Flanagan, Chief District Judge.
(CR-04-50)
Argued: February 1, 2006
Decided: April 7, 2006
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.
COUNSEL
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. Whit-
ney, United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.

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OPINION
WILKINSON, Circuit Judge:
In this case we address both substantive and procedural challenges
to the reasonableness of a sentence imposed within a properly calcu-
lated advisory Sentencing Guidelines range. We reject both chal-
lenges and affirm the sentence.
I.
On December 10, 2003, a confidential informant and an under-
cover 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 confi-
dential 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 con-
tacted 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 defen-
dant for speeding. After smelling marijuana, the officer requested per-
mission 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.
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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,
125 S. Ct. 738, 756-57 (2005), the district court should not apply
§ 3D1.2’s drug quantity grouping provision. The district court dis-
agreed, concluding that Johnson’s suggestion would "gut[ ] the guide-
lines." 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 Guide-
lines, and we thus review his sentence for reasonableness. See United
States v. Booker, 125 S. Ct. 738, 765 (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 "cer-
tain 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 indi-
vidualized factfinding required to apply them.
While we stated in both Moreland and Green that Guidelines sen-
tences are presumptively reasonable, neither case involved a sentence
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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 rea-
sonable under Booker is the legislative and administrative process by
which they were created. Dissatisfied with widespread sentencing dis-
parities 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
(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. It instructed the Commission to craft a sentencing
range "for each category of offense involving each category of defen-
dant," 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 (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 (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.
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It developed additional distinctions relevant to the applica-
tion 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 statis-
tical 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 pursu-
ant to the publication and hearing requirements of informal rulemak-
ing. See 28 U.S.C.A. § 994(x); Stinson, 508 U.S. at 44-45. Moreover,
Congress was free to modify or reject any guideline when first pro-
mulgated, 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.
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 presump-
tively reasonable.
B.
The second reason that Guidelines sentences are presumptively rea-
sonable is that the process described above has led to the incorpora-
tion into the Guidelines of the factors Congress identified in 18
U.S.C.A. § 3553(a) as most salient in sentencing determinations.*
*Those factors are:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant; (2) the need for the sentence
imposed — (A) to reflect the seriousness of the offense, to pro-
mote respect for the law, and to provide just punishment for the
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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 sen-
tencing range for every type of misconduct and every level of crimi-
nal 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 Guide-
lines’ primary purposes, see Booker, 125 S. Ct. at 761; Mistretta, 488
U.S. at 366-67, 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 other ways as
well. The offense levels and criminal history categories squarely
address "the nature and circumstances of the offense and the history
and characteristics of the defendant." 18 U.S.C.A. § 3553(a)(1). The
various adjustments and enhancements bear upon the need for the
sentence "to reflect the seriousness of the offense . . . and to provide
just punishment." Id. § 3553(a)(2)(A). And the elevated criminal his-
tory categories for repeat offenders and career criminals reflect the
congressional intention "to afford adequate deterrence to criminal
conduct," id. § 3553(a)(2)(B) and "to protect the public from further
crimes of the defendant," id. § 3553(a)(2)(C). See U.S. Sentencing
Guidelines Manual ch. 4, pt. A, introductory cmt. The conclusion to
offense; (B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant;
and (D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treatment
in the most effective manner; (3) the kinds of sentences avail-
able; (4) the kinds of sentence and the sentencing range estab-
lished [by the Sentencing Guidelines]; (5) any pertinent policy
statement [issued by the Sentencing Commission]; (6) the need
to avoid unwarranted sentence disparities among defendants with
similar records who have been found guilty of similar conduct;
and (7) the need to provide restitution to any victims of the
offense.
18 U.S.C.A. § 3553(a).
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be drawn is that the advisory Guidelines are not something separate
and apart from Congress’s objectives in § 3553(a). Rather, they
embody many of those objectives.
C.
This leads to the third reason why Guidelines sentences must be
treated as presumptively reasonable, namely, that such sentences are
based on individualized factfinding and this factfinding takes place in
a process that invites defendants to raise objections and requires
courts to resolve them. Both of these features are designed to lead to
a presumptively reasonable sentence.
First, the Guidelines range applicable to each defendant is an indi-
vidualized determination. Offense level and criminal history category,
the two central components of the Guidelines matrix, are determined
only after ascertaining a defendant’s own conduct and background.
See Fed. R. Crim. P. 32(d); U.S. Sentencing Guidelines Manual
§ 1B1.1; see also United States v. Hughes, 401 F.3d 540, 545 (4th
Cir. 2005) (noting that imposition of a Guidelines range involves an
accounting of "the individual characteristics of each defendant").
Second, this individualized factfinding is extensive, and is designed
to give the sentencing court a comprehensive overview of the defen-
dant. Certain information specific to the defendant’s misconduct and
prior record, criminal and otherwise, is usually set forth in a presen-
tence report. See Fed. R. Crim. P. 32(c)(1)(A), (d); U.S. Sentencing
Guidelines Manual § 6A1.1. To assure reliability, the defendant may
object to those facts with which he disagrees, Fed. R. Crim. P. 32(f),
requiring the district court to rule on any disputed portions of the pre-
sentence report, id. 32(i)(3)(B). The entire process, in short, is
designed to lead to a full and credible set of facts particular to the
defendant himself. The resulting findings form the basis for the appli-
cable Guidelines range, and departures or variances are available
when that range does not accurately capture the particular circum-
stances of an individual defendant, see Moreland, 437 F.3d at 432-33
(noting distinction between departures and variances); U.S. Sentenc-
ing Guidelines Manual § 5K2.0. Such an individualized sentence is
necessarily a presumptively reasonable one.
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D.
As our repair to these admittedly basic points makes clear, the
Guidelines are not arbitrary benchmarks, nor is their reasonableness
simply a matter of administrative convenience. Booker found a fatal
constitutional defect in the mandatory nature of the Guidelines sys-
tem, 125 S. Ct. at 750-51, but those values that the Guidelines serve
— uniformity, transparency in sentencing, and individualized fact-
finding — are features of a reasoned sentencing approach, and rele-
vant to an advisory system just as they were to a mandatory one.
Since Johnson was sentenced within the properly calculated Guide-
lines range, his sentence cannot be other than presumptively reason-
able.
III.
Notwithstanding the foregoing, Johnson disputes the reasonable-
ness of his sentence in two separate ways, one substantive, the other
procedural. See Moreland, 437 F.3d at 434 ("Reasonableness review
involves both procedural and substantive components."). We will
address each in turn.
First, Johnson argues that it is substantively unreasonable to group
the drug quantities in his three charges, as required by the Guidelines.
See U.S. Sentencing Guidelines Manual § 3D1.2 (2004) (setting forth
rules for grouping multiple counts). This grouping provision, which
the district court applied, yielded a base offense level of 32. Accord-
ing to Johnson, it would have been more appropriate for the district
court to impose a sentence based on the drug quantities in each indi-
vidual charge, the largest of which would have generated a base
offense level of 28.
To the extent Johnson believes that § 3D1.2’s grouping provision
is unreasonable or unfair as a general matter, the proper forum in
which to raise this issue is Congress or the Sentencing Commission,
not a federal court. Congress and the Commission have, as we dis-
cussed above, spent approximately twenty years refining the Guide-
lines with an eye toward the sentencing objectives in 18 U.S.C.A.
§ 3553(a). We are, consequently, ill-equipped and disinclined to quar-
rel with the Commission’s conclusion that grouping of closely related
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counts is an appropriate way "to provide incremental punishment for
significant additional criminal conduct." U.S. Sentencing Guidelines
Manual ch. 3, pt. D, introductory cmt. (2005); see also United States
v. Eura, No. 05-4437, slip op. at 12-13 (4th Cir. Feb. 24, 2006) (hold-
ing unreasonable district court’s non-application of the 100:1 crack
cocaine/powder cocaine ratio because it "impermissibly usurps Con-
gress’s judgment about the proper sentencing policy for cocaine
offenses") (internal quotation marks omitted).
Johnson is of course free to challenge the application of § 3D1.2
to his particular case, see Eura, slip op. at 13, as he did below. John-
son concedes, however, that the Guidelines range was properly calcu-
lated. Nor did he contest any facts in his presentence report. See
United States v. Terry, 916 F.2d 157, 162 (4th Cir. 1990). The district
court concluded that the advisory Guidelines provided a fair estima-
tion of the punishment defendant should receive, and we find that
conclusion an eminently reasonable one.
Second, Johnson contends that his sentence was procedurally
unreasonable because the district court did not articulate express find-
ings under each factor in 18 U.S.C.A. § 3553(a). It is true that in addi-
tion to first determining the proper advisory Guidelines range, the
district court must also consider the various factors in § 3553(a). See
Green, 436 F.3d 455-56; Hughes, 401 F.3d at 546. But this is not to
say that the district court must robotically tick through § 3553(a)’s
every subsection. "To establish the reasonableness of a sentence, a
district court need not explicitly discuss every § 3553(a) factor on the
record." Eura, slip op. at 11; see also United States v. Williams, 425
F.3d 478, 480 (7th Cir. 2005). This is particularly the case when the
district court imposes a sentence within the applicable Guidelines
range. See Green, 436 F.3d at 456 (noting that district courts must
"especially explain[ ]" deviations from the Guidelines).
Were district courts obligated to conduct a § 3553(a) roll call, as
defendant insists, we would simply exalt form over substance. Many
of the § 3553(a) factors are already incorporated into any Guidelines
determination, and the § 3553(a) factors can themselves overlap.
Compare 18 U.S.C.A. § 3553(a)(2)(A) (courts shall consider the need
for sentences "to promote respect for the law") with id.
§ 3553(a)(2)(B) (courts shall consider the need for sentences "to
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afford adequate deterrence to criminal conduct"). Requiring district
courts to address each factor on the record would thus be an exercise
in unproductive repetition that would invite flyspecking on appeal.
We see no reason to countenance pointless remands when the record
shows that the § 3553(a) factors were "adequately and properly con-
sidered." Eura, slip op. at 11.
The record more than sufficiently shows this here. In imposing the
97-month sentence, the district court stated that it found the findings
in the presentence report credible and reliable, that it had used these
findings to calculate an advisory Guidelines range, and that it had also
considered the § 3553(a) factors. While the district court’s specific
reference to § 3553 was certainly not required, see, e.g., United States
v. McBride, 434 F.3d 470, 476 n.3 (6th Cir. 2006); United States v.
Long Soldier, 431 F.3d 1120, 1123 (8th Cir. 2005), it may well have
been sufficient, see, e.g., United States v. Alonzo, 435 F.3d 551, 552,
554 (5th Cir. 2006) (holding that sentence was reasonable where dis-
trict court indicated "that it had ‘considered the Guidelines’" and
stated "that ‘the sentence within those Guidelines is consistent and
takes into account the purposes of 18, United States Code, Section
3553(a)’"); United States v. Scott, 426 F.3d 1324, 1330 (11th Cir.
2005) ("[T]he district court explicitly acknowledged that it had con-
sidered [defendant’s] arguments at sentencing and that it had consid-
ered the factors set forth in § 3553(a). This statement alone is
sufficient in post-Booker sentences.").
Here, however, the district court went considerably further by
undertaking a detailed inquiry into the various circumstances bearing
upon Johnson’s sentence. It addressed defendant’s character, specifi-
cally took note of letters written on his behalf, and heard argument on,
inter alia, the circumstances of his offenses and his relationship with
his family, see United States v. Jiménez-Beltre, 2006 WL 562154 at
*3 (1st Cir. Mar. 9, 2006) (en banc) (noting that when reviewing sen-
tences under an advisory system, a district court’s reasoning "can
often be inferred by comparing what was argued by the parties or con-
tained in the pre-sentence report with what the judge did"). The dis-
trict court here also canvassed Johnson’s criminal history, explaining
that while his past criminal conduct was not "considerable," he none-
theless had committed a drug offense before, had lied in his pre-trial
interview about recent marijuana use, and was facing pending state
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forgery charges. In addition, the court recommended Johnson for a
special treatment program after chronicling his problems with drug
and alcohol abuse. Although the district court did not explicitly match
these various findings to particular § 3553(a) factors, it was not
required to do so. See Eura, slip op. at 11; see also United States v.
Williams, 436 F.3d 706, 708-09 (6th Cir. 2006). Nothing about the
proceedings suggests defendant’s request for a remand is well-taken.
IV.
Because the district court properly calculated the advisory Guide-
lines range and adequately considered the § 3553(a) factors, we find
defendant’s sentence reasonable. The judgment is
AFFIRMED.
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