United States v. Johnson ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 01-4648
STACY TREMAINE JOHNSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Senior District Judge.
(CR-00-114-FO)
Submitted: May 30, 2002
Decided: June 20, 2002
Before WILLIAMS, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Sue Genrich Berry, BOWEN, BERRY, POWERS & SLAUGHTER,
P.L.L.C., Wilmington, North Carolina, for Appellant. John Stuart
Bruce, United States Attorney, Anne M. Hayes, Assistant United
States Attorney, Michael Gordon James, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2 UNITED STATES v. JOHNSON
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Following a guilty plea to one count of possession with intent to
distribute in excess of five grams of cocaine base, in violation of 21
U.S.C.A. § 841(a)(1) (West 1999), Stacy Tremaine Johnson was sen-
tenced to 327 months in prison. Johnson appeals, claiming that he was
deprived of assistance of counsel at sentencing, the district court
failed to make an inquiry into the factual basis for his guilty plea, and
he was entitled to an additional reduction in his offense level for
acceptance of responsibility. We find no merit to his claims; conse-
quently, we affirm.
Johnson first argues that the district court deprived him of the right
to counsel at sentencing by allowing his attorney to withdraw and
then requiring Johnson to proceed pro se. In fact, when Johnson’s
court-appointed attorney (his third) moved to withdraw one business
day before sentencing, the court required Johnson to proceed with
hybrid representation, directing his lawyer to continue as standby
counsel. Such a decision was within the district court’s discretion.
McKaskle v. Wiggins, 465 U.S. 168, 176 (1984); United States v.
West, 877 F.2d 281, 286 (4th Cir. 1989). In this capacity, at Johnson’s
request, counsel actively participated at the sentencing hearing, chal-
lenging provisions in the presentence investigation report, and playing
a significant role in obtaining a lower offense level than that recom-
mended in the report.
At the Fed. R. Crim. P. 11 hearing, the district court advised John-
son that in order for the court to find him guilty of Count Two of the
indictment, the government would have "to prove by competent evi-
dence and beyond a reasonable doubt that on or about August 5, 1999,
that [Johnson] knowingly and intentionally possessed with the intent
to distribute in excess of five grams of crack cocaine." Shortly there-
after, when the court asked if he needed more advice, Johnson said,
UNITED STATES v. JOHNSON 3
"I’m guilty of Count Two." Johnson argues on appeal that this
exchange does not provide a sufficient inquiry into the factual basis
of his guilty plea. Because he did not raise this claim in the district
court, we review the district court’s findings for plain error. United
States v. Martinez, 277 F.3d 517, 527 (4th Cir. 2002).
Under Fed. R. Crim. P. 11(f), a court may not enter a judgment
upon a guilty plea unless it is satisfied that there is a factual basis for
that plea. We find that, in light of Johnson’s explicit admission of
guilt at the sentencing hearing and evidence in the presentence inves-
tigation report supporting the guilty plea, the district court did not
commit plain error in finding a factual basis to support the plea. Mar-
tinez, 277 F.3d at 531-32.
Finally, Johnson argues that the district court erred by awarding
him only a two-level reduction in offense level for acceptance of
responsibility rather than a three-level reduction as provided by
United States Guidelines Manual § 3E1.1(b) (2001). To obtain this
additional one-level reduction, Johnson bore the burden of establish-
ing by a preponderance of the evidence that he was entitled to the
adjustment. United States v. Urrego-Linares, 879 F.2d 1234, 1238-39
(4th Cir. 1989). We find that the district court did not err by conclud-
ing that Johnson failed to meet this burden.*
For these reasons, we affirm Johnson’s conviction and sentence.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
*To the extent that Johnson argues that he was denied effective assis-
tance of counsel because his standby counsel did not raise this objection
at the sentencing hearing, we find that his claim is not cognizable on
direct appeal because it does not conclusively appear from the face of the
record that counsel was ineffective. United States v. King, 119 F.3d 290,
295 (4th Cir. 1997).