United States v. Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TERRY DONNELL JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad, Jr.,
Chief District Judge. (3:05-cr-00003)
Submitted: August 31, 2007 Decided: September 13, 2007
Before MOTZ and GREGORY, Circuit Judges, and WILKINS, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Thomas A. Will, Jr., LAW OFFICE OF THOMAS A. WILL, JR., Gastonia,
North Carolina, for Appellant. Gretchen C.F. Shappert, United
States Attorney, Karen S. Marston, Thomas Tullidge Cullen, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Terry Donnell Johnson pled guilty to possession with
intent to distribute cocaine base and possession of a firearm by a
convicted felon. He was sentenced to 262 months on the drug charge
and a concurrent 120-month sentence for the weapons offense. He now
appeals. His attorney has filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), raising two issues but stating
that both appear to lack merit. Johnson has filed a pro se
supplemental brief raising additional issues. Finding no
reversible error, we affirm.
Johnson contends that his guilty plea was not voluntarily
and knowingly entered. Our review of the transcript of Johnson’s
arraignment discloses that the proceeding was properly conducted
under Fed. R. Crim. P. 11. This “raise[s] a strong presumption
that the plea is final and binding.” See United States v. Lambey,
974 F.2d 1389, 1394 (4th Cir. 1992). Further, a defendant’s
declarations during the plea colloquy “carry a strong presumption
of verity.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Here,
Johnson represented at his Rule 11 hearing that he was entering his
plea freely and voluntarily with a full understanding of the
charges against him, the penalties he faced, and the rights he was
waiving by pleading guilty. He also informed the court that he was
not under the influence of drugs or alcohol and that no one had
threatened, intimidated, or forced him to plead guilty. Finally,
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Johnson expressed his satisfaction with his attorney. Under these
circumstances, we conclude that the plea was both knowing and
voluntary.
Although Johnson contests his treatment as a career
offender, we note that he had the requisite two previous felony
convictions for drug offenses, neither of which has been overturned
by the North Carolina state courts. We conclude that Johnson was
properly treated as a career offender under U.S. Sentencing
Guidelines Manual § 4B1.1(a) (2005). We also find that Johnson’s
sentence, imposed within the properly calculated advisory sentence
range and applicable statutory limits, is reasonable. See United
States v. Johnson, 445 F.3d 339, 341 (4th Cir. 2006); United
States v. Moreland, 437 F.3d 424, 433 (4th Cir.), cert. denied, 126
S. Ct. 2054 (2006); see also United States v. Rita, 127 S. Ct. 2456(2007). Finally, his sentence does not violate the Double Jeopardy
Clause. See United States v. Hondo, 366 F.3d 363, 365 (4th Cir.
2004).
Johnson contends that he was denied effective assistance
of counsel. To allow for adequate development of the record, a
defendant must usually bring a claim of ineffective assistance in
a 28 U.S.C. § 2255 (2000) motion unless it conclusively appears
from the record that counsel did not provide effective
representation. United States v. Richardson, 195 F.3d 192, 198
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(4th Cir. 1999). Here, no such error is apparent from our review
of the record.
We have examined the entire record in this case in
accordance with the requirements of Anders, and we find no
meritorious issues for appeal. Accordingly, we affirm. This court
requires 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, counsel may move
in this court for leave to withdraw from representation. Counsel’s
motion must state that a copy of the motion 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 decisonal process.
AFFIRMED
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