United States v. Daniel Johnson ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-5004
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
DANIEL DONDREKUS JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:11-cr-02354-HMH-1)
Submitted: October 22, 2013 Decided: October 25, 2013
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Jessica Salvini, SALVINI & BENNETT, LLC, Greenville, South
Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant
United States Attorney, Greenville, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Dondrekus Johnson pleaded guilty, under an oral
plea agreement, * to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1) (2006). The district court
sentenced Johnson to forty-two months’ imprisonment. Johnson’s
counsel has submitted a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), stating that there are no
meritorious issues for appeal, but questioning whether the
district court erred in sentencing Johnson and whether counsel
was ineffective in failing to negotiate a conditional guilty
plea. In his pro se supplemental brief, Johnson argues that the
Government breached the oral plea agreement and that the
district court erred in denying his motion to suppress. We
affirm.
We review Johnson’s sentence under a deferential
abuse-of-discretion standard. Gall v. United States, 552 U.S.
38, 41 (2007). This review requires consideration of both the
procedural and substantive reasonableness of the sentence. Id.
*
This court does not favor oral plea agreements. See
United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997) (“[W]e
believe it behooves the government to reduce all oral pleas to
writing. Accordingly, we suggest that lower courts require all
future plea agreements to be reduced to writing.” (footnote
omitted)); United States v. Iaquinta, 719 F.2d 83, 84 n.2 (4th
Cir. 1983) (“We recommend that plea agreements be written and
their terms be clear.”).
2
at 51; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010).
After determining whether the district court correctly
calculated the advisory Guidelines range, we must decide whether
the court considered the 18 U.S.C. § 3553(a) (2006) sentencing
factors, analyzed the arguments presented by the parties, and
sufficiently explained the selected sentence. Gall, 552 U.S. at
51.
Once we have determined that the sentence is free of
procedural error, we consider its substantive reasonableness,
“tak[ing] into account the totality of the circumstances.”
Gall, 552 U.S. at 51; Lynn, 592 F.3d at 575. If the sentence is
within the properly calculated Guidelines range, we presume on
appeal that the sentence is reasonable. United States v. Susi,
674 F.3d 278, 289 (4th Cir. 2012). Such a presumption is
rebutted only if the defendant demonstrates “that the sentence
is unreasonable when measured against the § 3553(a) factors.”
United States v. Montes-Pineda, 445 F.3d 375, 379 (4th Cir.
2006) (internal quotation marks omitted).
Because the district court correctly calculated and
considered as advisory the applicable Guidelines range and
adequately explained its sentencing determination, we conclude
that Johnson’s sentence was procedurally reasonable.
Furthermore, our review of the record leads us to conclude that
Johnson has not overcome the presumption of reasonableness
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applicable to his within-Guidelines sentence. Accordingly, we
conclude that the district court did not abuse its discretion in
sentencing Johnson.
Counsel also questions whether Johnson received
ineffective assistance of trial counsel. Claims of ineffective
assistance of counsel, normally raised in a 28 U.S.C. § 2255
motion, are not cognizable on direct appeal unless the record
conclusively establishes counsel’s deficient performance and
resulting prejudice. United States v. Powell, 680 F.3d 350, 359
(4th Cir. 2012). As that is not the case in the record before
us, we decline to rule on the merits of the claim.
Our review of the claims raised in Johnson’s pro se
supplemental brief convinces us that they entitle him to no
relief. In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. We therefore affirm Johnson’s conviction and sentence.
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. Counsel’s motion must state that a copy thereof
was served on Johnson.
4
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.
AFFIRMED
5