United States v. Johnson ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-4054
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TRAVIS DWAYNE JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Florence. Terry L. Wooten, District Judge.
(CR-02-333)
Submitted: February 28, 2006 Decided: March 16, 2006
Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant. Jonathan S. Gasser,
United States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Travis Dwayne Johnson appeals from his 204-month sentence
imposed following his guilty plea to possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)
(2000). Johnson’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), stating that there were no
meritorious issues for appeal, but addressing the propriety of the
colloquy pursuant to Fed. R. Crim. P. 11, and Johnson’s sentence as
an armed career criminal. At the direction of the court, the
parties filed supplemental briefs addressing the validity of
Johnson’s sentence under United States v. Booker, 543 U.S. 220(2005). Johnson was informed of his right to file a pro se
supplemental brief, but he has not done so. Because our review of
the record discloses no reversible error, we affirm Johnson’s
conviction and sentence.
We find that Johnson’s guilty plea was knowingly and
voluntarily entered after a thorough hearing pursuant to Rule 11.
Johnson was properly advised of his rights, the offense charged,
and the maximum sentence for the offense. The court also
determined that there was an independent factual basis for the plea
and that the plea was not coerced or influenced by any promises.
See North Carolina v. Alford, 400 U.S. 25, 31 (1970); United
States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).
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Johnson questions whether the district court properly
counted his South Carolina burglary convictions as violent felony
offenses for purposes of the Armed Career Criminal Act. The
statute defines “violent felony” to include burglary. 18 U.S.C.
§ 924(e)(2)(B)(ii) (2000). Thus, the district court properly
considered Johnson’s burglary convictions as predicate offenses
under the armed career criminal statute. See Taylor v. United
States, 495 U.S. 575, 598-99 (1990); United States v. Hairston, 71
F.3d 115, 117 (4th Cir. 1995) (applying categorical approach to
definition of violent felony).
In his supplemental brief, Johnson raises three grounds
of error under Booker. First, he asserts that the district court
erred in applying U.S. Sentencing Guidelines Manual § 5G1.3(a)
(2002) as mandatory and imposing his federal sentence to run
consecutive to the state sentences that he was serving. Because
this issue was not presented in the district court, this court
reviews for plain error. United States v. Olano, 507 U.S. 725,
731-32 (1993); United States v. White, 405 F.3d 208, 215 (4th Cir.
2005).
The district court’s imposition of Johnson’s sentence
under the mandatory sentencing guidelines regime was error, which
was plain. White, 405 F.3d at 216-17. In determining whether an
error affected the defendant’s substantial rights--the third prong
of the analysis--the defendant must show that the error “‘affected
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the outcome of the district court proceedings.’” Id. at 223(quoting Olano, 507 U.S. at 734).
Johnson asserts that the district court did not have the
opportunity to consider an alternative application of the
guidelines because Blakely v. Washington, 542 U.S. 296 (2004), and
Booker had not yet been decided. He states that “it might appear
that the district court considered a concurrent sentence.” The
asserted confusion arose due to a misstatement in the presentence
report. The district court corrected this error, stating that “it
actually should have said consecutive. It’s mandatory. I have no
discretion.” The court later explained, “even if [a consecutive
sentence] is not mandated [by the guidelines], I believe a
consecutive sentence is appropriate in this case.”
Because our review of “the record as a whole provides no
nonspeculative basis for concluding that the treatment of the
guidelines as mandatory ‘affect[ed] the district court’s selection
of the sentence imposed,’” White, 405 F.3d at 223 (quoting
Williams v. United States, 503 U.S. 193, 203 (1992)), we conclude
that Johnson has not shown that he was prejudiced by the district
court’s determination of his sentence under the mandatory guideline
regime.
Johnson next contends that his sentence violates Booker
because the district court sentenced him as an armed career
criminal based on facts not included in the indictment, admitted by
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him, or found by a jury beyond a reasonable doubt. We have
recently held that a district court’s finding that a defendant had
qualifying felony convictions that supported an armed career
criminal designation does not violate Booker. See United States v.
Cheek, 415 F.3d 349, 352-54 (4th Cir.), cert. denied, 126 S. Ct.
640 (2005).
The final issue asserted in Johnson’s supplemental brief
is whether the district court’s finding that he had at least three
prior convictions for violent felonies committed on different
occasions from one another and sentencing him under the Armed
Career Criminal Act runs afoul of Booker. We have recently held
that the dates of commission of the prior offenses is a fact of a
prior conviction and need not be alleged in the indictment,
admitted by the defendant, or found beyond a reasonable doubt. See
United States v. Thompson, 421 F.3d 278, 286 (4th Cir.), pet. for
cert. filed (Oct. 25, 2005) (No. 05-7266). Accordingly, we find no
Booker error, much less plain error, by the district court in
making this determination.
As required by Anders, we have reviewed the entire record
and have found no meritorious issues for appeal. We therefore
affirm Johnson’s conviction and 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
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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 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
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