United States v. Johnson , 259 F. App'x 542 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5176
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WENDELL ANTONIO JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (CR-04-128)
Submitted: October 24, 2007 Decided: December 11, 2007
Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.
Affirmed in part; dismissed in part by unpublished per curiam
opinion.
Matthew W. Greene, SMITH & GREENE, P.L.L.C., Fairfax, Virginia, for
Appellant. Donald Ray Wolthuis, OFFICE OF THE UNITED STATES
ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Wendell A. Johnson pled guilty to conspiracy to
distribute 50 grams or more of cocaine base and five kilograms of
cocaine, in violation of 21 U.S.C. § 846 (2000) (Count One),
distribution of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000) (Count Seven), and possession with intent to distribute 500
grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1)
(2000) (Count Eight). The district court sentenced Johnson to 300
months’ imprisonment on each of Counts One and Eight and a term of
240 months on Count Seven, all to be served concurrently, imposed
a five-year term of supervised release on each count, all to run
concurrently, and ordered Johnson to pay a $300 special assessment.
Johnson noted a timely appeal from the amended judgment of
conviction,1 and Johnson’s counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are
no meritorious grounds for appeal, but questioning whether the
1
The judgment was amended to correct a clerical error.
Counsel had filed a motion requesting correction of the Judgment
Order to reflect that the narcotics with which Johnson was involved
was cocaine powder, not cocaine base, as reflected in the Judgment
Order. On February 2, 2007, the district court entered a
Memorandum Opinion and Order and an Amended Judgment, in which it
granted the motion in part, and denied it in part. Specifically,
the district court found that the judgment order’s description of
Count Seven should be changed to reflect that the offense was
distribution of cocaine, not cocaine base. However, the district
court found that because Johnson had pled guilty to a conspiracy
that had two objectives (cocaine and cocaine base distribution),
Counts One and Eight were accurately described, even though Johnson
was held accountable only for cocaine powder at sentencing.
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district court committed reversible error in failing to sua sponte
order a second hearing,2 as to whether Johnson voluntarily and
knowingly pled guilty. Johnson was given an opportunity to file a
pro se brief, but has failed to do so.
The Government has moved to dismiss the appeal, asserting
that because Johnson validly waived his right to appeal sentencing
guideline factors and determinations, in his plea agreement, we
lack jurisdiction over the appeal. We grant the motion in part and
deny it in part, as discussed below.
A defendant may waive the right to appeal if that waiver
is knowing and intelligent. United States v. Amaya-Portillo, 423
F.3d 427, 430 (4th Cir. 2005). Generally, if the district court
fully questions a defendant regarding the waiver of his right to
appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both
valid and enforceable. United States v. Johnson, 410 F.3d 137, 151
(4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68
(4th Cir. 1991). The question of whether a defendant validly
waived his right to appeal is a question of law that we review de
novo. United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005).
Our review of the record leads us to conclude that
Johnson knowingly and voluntarily waived the right to appeal his
sentence. Although the waiver provision in the plea agreement
2
Johnson contends this hearing should have been conducted
prior to the district court’s entry of its Amended Order correcting
the clerical error.
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precludes our review of the sentence, we note that Johnson did not
waive his right to appeal his conviction. Thus the waiver does not
preclude our review of the issue Johnson raises by counsel, nor any
error in Johnson’s conviction that may be revealed by our review
pursuant to Anders.
We find that Johnson has not presented a fair and just
reason to support his claim that a second evidentiary hearing was
necessitated, nor was he entitled to a hearing as a matter of
right. He does not contend that his Rule 11 hearing was improper,
nor is any error evident on the record relative to that hearing.3
He does not contend that he sought a second guilty plea hearing
and, in fact, contends that the district court should have
conducted such a hearing sua sponte. There is no legal basis to
support such a contention, nor does Johnson provide any. The
correction made by the district court with regard to the Amended
Judgment was clerical in nature, and was made to clarify that, as
to Count Seven, Johnson would be held accountable for distribution
of powder, not crack, cocaine.4 The amendment to the Judgment
3
Johnson did not move in the district court to withdraw his
guilty plea, and any error committed during the Fed. R. Crim. P. 11
hearing is reviewed for plain error. See United States v.
Martinez, 277 F.3d 517, 525 (4th Cir. 2002).
4
As the district court held, Count One related to the
conspiracy count, and Johnson clearly pled guilty to involvement
with a conspiracy that distributed and possessed both powder and
crack cocaine, as reflected in the indictment. As such, Count One
was accurately described in the Judgment Order and no amendment was
required. Moreover, Count Eight related to possession and intent
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Order did not in any way affect Johnson’s guilty plea. Rather, it
was merely reflective of the plea Johnson entered into in the first
instance. Correction of a clerical error such as this does not
necessitate an evidentiary hearing, nor was it error for the
district court not to sua sponte offer such a hearing to Johnson.
The record is clear as to the offenses to which Johnson pled
guilty. No evidentiary hearing was necessary, and Johnson’s claim
of error in the district court’s failure to provide him with such
a hearing is without merit. Thus, we deny, in part, the
Government’s motion to dismiss and affirm Johnson’s conviction.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues not
covered by the waiver. We therefore affirm Johnson’s conviction
and dismiss any appeal of his sentence. We further deny, at this
juncture, counsel’s motion to be relieved. This court requires
that counsel inform his client, in writing, of his right to
petition the Supreme Court of the United States for further review.
If the client 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 the
to distribute cocaine, and also was accurately described in the
Judgment Order. Hence, the only amendment necessary was to correct
that portion of the judgment order that related to Count Seven to
reflect that Johnson possessed with the intent to distribute
cocaine, not crack cocaine.
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client. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART;
DISMISSED IN PART
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