United States v. Johnston , 47 F. App'x 208 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 02-4254
WILLIAM JOHNSTON, a/k/a Sld Dft 1,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Chief District Judge.
(CR-00-135)
Submitted: August 22, 2002
Decided: September 11, 2002
Before WILKINS, WILLIAMS, and KING, Circuit Judges.
Affirmed and remanded by unpublished per curiam opinion.
COUNSEL
Marshall A. Swann, Charlotte, North Carolina, for Appellant. Robert
J. Conrad, Jr., United States Attorney, Robert J. Gleason, Assistant
United States Attorney, Charlotte, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. JOHNSTON
OPINION
PER CURIAM:
William Johnston pleaded guilty to possession of a firearm after
having been convicted of a crime punishable by more than one year
imprisonment, in violation of 18 U.S.C. § 922(g) (2000); possession
with intent to distribute 50 grams or more of cocaine base, in viola-
tion of 21 U.S.C. § 841(a)(1) (2000); and using, possessing, and car-
rying a firearm during and in relation to a drug trafficking crime, in
violation of 18 U.S.C. § 924(c)(1) (2000). The Government sought an
enhanced sentence pursuant to 21 U.S.C. § 851 (2000), based upon
Johnston’s two previous felony drug convictions. Johnston’s attorney
has filed a brief in accordance with Anders v. California, 386 U.S.
738 (1967), raising one potential issue for review but stating that, in
his view, there are no meritorious issues for appeal. Johnston was
advised of his right to file a pro se supplemental brief, but he did not
do so.
Johnston contends that the Government breached the plea agree-
ment by refusing to file a motion for downward departure pursuant to
§ 5K1.1 of the Sentencing Guidelines.* Johnston’s plea agreement,
however, contained no unconditional promise to file a motion for
downward departure, but instead left the decision to the Govern-
ment’s discretion. There is no evidence that the Government’s refusal
to move for a downward departure was based upon an unconstitu-
tional motive or that the Government acted in bad faith. See Wade v.
United States, 504 U.S. 181, 185-86 (1992); United States v. Snow,
234 F.3d 187, 190-91 (4th Cir. 2000). We conclude that Johnston’s
allegation of a breach of the plea agreement is meritless.
In accordance with Anders, we have reviewed the entire record in
this case. Our review convinces us that Johnston’s plea was knowing
and voluntary, and was supported by an adequate factual basis. See
Fed. R. Crim. P. 11. Johnston’s sentence of life imprisonment was
statutorily mandated. We have found no meritorious issues for appeal,
and we therefore affirm Johnston’s convictions and sentence. We
*U.S. Sentencing Guidelines Manual (2000).
UNITED STATES v. JOHNSTON 3
remand the case to the district court for correction of clerical errors
in the judgment order. See Fed. R. Crim. P. 36. Specifically, the "Na-
ture of Offense" descriptions on page one of the order are incorrect
for Counts One and Two, as is the statutory citation under Count
Two. These errors do not affect the validity of Johnston’s convictions
or sentence.
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. Coun-
sel’s motion must state that a copy thereof was served on the client.
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 AND REMANDED