United States v. Johnson (2009)

United States v. Johnson, 572 F.3d 449, 453 (8th Cir. 2009). -5- There was sufficient evidence to support a finding by the jury that Two Hearts possessed methamphetamine at the time of his arrest, and was an unlawful user of a controlled substance.

“We first review for significant procedural error and then for substantive reasonableness.” United States v. Johnson, 572 F.3d 449, 454 (8th Cir.2009).

Even if we accepted the defendant’s argument regarding procedural error, we would conclude the error was harmless and still affirm “based on the district court’s alternative decision to impose an upward variance based on the § 3553(a) factors.” United States v. Johnson, 572 F.3d 449, 455 (8th Cir.2009).

First we review for significant procedural error, which may include failing to consider the 18 U.S.C. § 3553 (a) factors, and then we review for substantive reasonableness under the “ ‘deferential abuse-of-discretion standard.’ ” United States v. Johnson, 572 F.3d 449, 454 (8th Cir.) (quoting Gall, 552 U.S. at 41 , 128 S.Ct. 586 ), cert. denied, — U.S. -, 130 S.Ct. 569 , 175 L.Ed.2d 393 (2009).

First, we review for significant procedural error, including “ ‘failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence — including an explanation for any deviation from the Guidelines range.’ ” United States v. Johnson, 572 F.3d 449, 454 (8th Cir.2009) (quoting Gall v. Unit…

We review a sentence for reasonableness, “applying the ‘familiar abuse-of-discretion standard.’ ” United States v. Johnson, 572 F.3d 449, 454 (8th Cir.) (quoting Gall v. United States, 552 U.S. 38, 46 , 128 S.Ct. 586 , 169 L.Ed.2d 445 (2007)), cert. denied, — U.S.-, 130 S.Ct. 569 , 175 L.Ed.2d 393 (2009).

Furthermore, the district court stated that “[i]n the event that the court was mistaken about the propriety of all its upward departures and the Defendant’s advisory Sentencing Guidelines range were 97 to 120 months . . . instead of 120 months of imprisonment, the court would nonetheless have imposed a sentence of 120 months imprisonment.” Sentencing Mem. 50-1, Waldner, No. 2:06-cr-01019-LRR; see United States v. Johnson, 572 F.3d 449, 455 (8th Cir. 2009) (“Even assuming tha…

Furthermore, the district court stated that “[i]n the event that the court was mistaken about the propriety of all its upward departures and the Defendant’s advisory Sentencing Guidelines range were 97 to 120 months ... instead of 120 months of imprisonment, the court would nonetheless have imposed a sentence of 120 months imprisonment.” Sentencing Mem. 50-1, Waldner, No. 2:06-cr-01019-LRR; see United States v. Johnson, 572 F.3d 449, 455 (8th Cir.2009) (“Even assuming that t…

See United States v. Johnson, 572 F.3d 449, 454 (8th Cir. 2009).

See United States v. Johnson, 572 F.3d 449, 455 (8th Cir.2009).

See United States v. Johnson, 572 F.3d 449, 455 (8th Cir.2009) (concluding that any error in assessing an upward departure was harmless and affirming the sentence “based on the district court’s alternative decision to impose an upward variance based on the *1012 § 3553(a) factors”); United States v. Sanchez-Martinez, 633 F.3d 658, 660 (8th Cir.2011) (finding any procedural error harmless “because the record is clear that the district court intended to impose the same sentenc…