United States v. Johnnie Lewis, 4th Cir. (2012)
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Scribd Government DocsUnited States v. Johnnie Lewis, 4th Cir. (2012)
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Scribd Government DocsUNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4058
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JOHNNIE ONEIL LEWIS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.
James C. Fox, Senior
District Judge. (5:09-cr-00368-F-1)
Submitted:
September 14, 2012
Decided:
September 26, 2012
Before SHEDD, DAVIS, and DIAZ, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Thomas P. McNamara, Federal Public Defender, G. Alan DuBois,
Assistant Federal Public Defender, James E. Todd, Jr., Research
and Writing Attorney, Raleigh, North Carolina, for Appellant.
Thomas G. Walker, United States Attorney, Jennifer P. MayParker, Yvonne V. Watford-McKinney, Assistant United States
Attorneys, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie
ONeil
Lewis
appeals
the
eighty-seven-month
sentence he received after we remanded his case for resentencing
in light of United States v. Simmons, 649 F.3d 237 (4th Cir.
2011) (en banc).
Lewis contends that the district court erred
procedurally by failing to address his arguments for a sentence
at the low end of the Guidelines range.
We affirm.
When he was resentenced, Lewis Guidelines range was
70-87 months.
In support of his request for a sentence at the
low end, Lewis reminded the court of the facts of his very
difficult
childhood,
which
had
been
detailed
at
the
first
sentencing, and informed the court that, while incarcerated, he
had reflected on the harm he had done to the victim he robbed
and his childrens need for his presence in their lives.
He
also informed the court that he had acquired certain job skills,
voluntarily entered a drug program, endeavored to further his
education in an unspecified manner, and was determined not to go
back to prison after his release.
Before imposing sentence at
the top of the Guidelines range, the district court made an
individualized assessment of Lewis situation in light of the
sentencing factors set out in 18 U.S.C. 3553(a) (2006), but
did not specifically address his arguments for a sentence at the
low end of the range.
We review a sentence for reasonableness under an abuse
of discretion standard.
Gall v. United States, 552 U.S. 38, 51
(2007).
requires
This
review
consideration
of
both
procedural and substantive reasonableness of a sentence.
the
Id.;
see United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
The
sentencing
court
must
make
based on the facts presented.
an
individualized
assessment
United States v. Carter, 564
F.3d 325, 328 (4th Cir. 2009) (citing Gall, 552 U.S. at 50).
When
the
defendant
presents
non-frivolous
reasons
for
sentence different from the one the court imposes, the court is
expected
to
provide
at
least
brief
explanation
or,
if
circumstances warrant, a lengthier explanation of its reasons
for rejecting the defendants argument.
551
U.S.
Guidelines
338,
357
range,
(2007).
this
If
court
the
Rita v. United States,
sentence
presumes
sentence is substantively reasonable.
on
is
appeal
within
the
that
the
United States v. Go, 517
F.3d 216, 218 (4th Cir. 2008); see Rita, 551 U.S. at 346-56
(permitting appellate presumption of reasonableness for withinGuidelines sentence).
Here,
the
district
court
made
an
individualized
assessment of Lewis and his offense as required.
Lewis contends
that he offered non-frivolous reasons for a sentence at the low
end of the Guidelines range, which the district court failed to
address.
He relies principally on United States v. Villegas3
Miranda, 579 F.3d 798 (7th Cir. 2009), in which the Seventh
Circuit found procedural error in the district courts failure
to address an argument for a downward departure that had been
held in other circuits to be sufficient to warrant a departure.
Id. at 803.
However, a sentencing judge may reject without
discussion
stock
arguments
that
are
made
routine.
United States v. Young, 590 F.3d 467, 474 (7th Cir.
2009) (quotation marks and citation omitted).
Lewis
court
arguments
did
not
were
of
this
procedurally
nature,
err
in
and
failing
as
matter
of
We conclude that
that
to
the
district
address
them
specifically.
We therefore affirm the district courts judgment.
dispense
with
oral
argument
because
the
facts
and
We
legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
