United States v. Tony Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4861
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Wilmington. Louise W. Flanagan,
District Judge. (7:12-cr-00019-FL-2)
Submitted: July 12, 2013 Decided: July 24, 2013
Before KING and GREGORY, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Paul Camarena, NORTH & SEDGWICK, Chicago, Illinois, for
Appellant. Jennifer P. May-Parker, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tony Johnson appeals his conviction and 105-month
sentence imposed following his guilty plea, pursuant to a plea
agreement, to two counts of possession with intent to distribute
a quantity of cocaine base, in violation of 21 U.S.C.
§ 841(a)(1) (2006). Counsel for Johnson filed a brief in
accordance with Anders v. California, 386 U.S. 738 (1967),
certifying that there are no meritorious issues for appeal but
questioning whether the magistrate judge complied with Rule 11
in accepting Johnson’s guilty plea and whether Johnson’s
sentence is reasonable. Johnson was given an opportunity to
file a pro se supplemental brief but has not done so. The
Government has also elected not to file a brief. For the
reasons that follow, we affirm the district court’s judgment.
We first address the validity of Johnson’s guilty
plea. Federal Rule of Criminal Procedure 11 requires that the
district court, prior to accepting a guilty plea, conduct a
colloquy in which it informs the defendant of the charges
against him and determines that he comprehends the nature of
those charges, any mandatory minimum penalty, the maximum
possible penalty, and the rights he is relinquishing by pleading
guilty. Fed. R. Crim. P. 11(b)(1). The court must also ensure
that the defendant’s guilty plea is voluntary and that there is
a factual basis for the plea. Fed. R. Crim. P. 11(b)(2), (3).
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Because Johnson did not move to withdraw his guilty plea in the
district court or raise any objections to the Rule 11 colloquy,
the colloquy is reviewed for plain error. United States v.
Martinez, 277 F.3d 517, 524-26 (4th Cir. 2002). To demonstrate
plain error, a defendant must show: (1) there was error,
(2) the error was plain, and (3) the error affected his
“substantial rights.” United States v. Olano, 507 U.S. 725,
732-34 (1993). To establish that a Rule 11 error affected his
substantial rights, the defendant “must show a reasonable
probability that, but for the error, he would not have entered
the plea.” United States v. Dominguez Benitez, 542 U.S. 74, 83
(2004).
Our review of the record reveals that the magistrate
judge substantially complied with Rule 11. The magistrate judge
properly ensured that Johnson’s plea was knowing, voluntary, and
supported by a sufficient factual basis. The magistrate judge
properly informed Johnson of the maximum possible penalties he
faced and of the advisory nature of the Sentencing Guidelines.
Though the magistrate judge did not inform Johnson that any
false statements could be used against him in a prosecution for
perjury, Fed. R. Crim. P. 11(b)(1)(A), we conclude that this
error did not affect Johnson’s substantial rights because there
is no indication that Johnson lied or is being prosecuted for
perjury. Olano, 507 U.S. at 732-34. Moreover, Johnson fails to
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allege that but for this error he would not have entered the
plea. Dominguez Benitez, 542 U.S. at 83.
We next address the reasonableness of Johnson’s
sentence. Applying an abuse of discretion standard, we first
review for significant procedural error, and in the absence of
such error, we then consider substantive reasonableness. Gall
v. United States, 552 U.S. 38, 51 (2007). Procedural error
includes improperly calculating the Guidelines range, treating
the Guidelines range as mandatory, failing to consider the
§ 3553(a) factors, and failing to adequately explain the
selected sentence. Id. Substantive reasonableness is
determined by considering the totality of the circumstances,
including the extent of any deviation from the Guidelines range.
Id.
In sentencing Johnson, the district court imposed a
sentence above the range established by application of the
Sentencing Guidelines. An upward variance is permitted where
justified by the § 3553(a) factors, see id., and an upward
departure is permitted where a defendant’s criminal history
category inadequately reflects his actual criminal history.
United States v. Myers, 589 F.3d 117, 125-26 (4th Cir. 2009).
Where an upward departure is warranted, the sentencing court
must depart incrementally and explain the reasons supporting its
departure. United States v. Dalton, 477 F.3d 195, 199 (4th Cir.
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2007). This Court gives due deference to the district court’s
determination that the § 3553(a) factors justify the extent of a
variance, and the fact that we might find a different sentence
appropriate is insufficient to justify reversal of the district
court. Gall, 552 U.S. at 51.
We conclude that the sentence imposed by the district
court is both procedurally and substantively reasonable. The
district court properly calculated the Guidelines range,
considered the § 3553(a) factors, and adequately explained the
selected sentence. Gall, 552 U.S. at 51. The court explained
that the § 3553(a) factors and the inadequacy of Johnson’s
criminal history category justified deviation from the
Guidelines. Id.; Myers, 589 F.3d at 125-26. The court then
properly departed upward incrementally and explained the reasons
supporting the departure, including Johnson’s criminal history,
the need to protect the public, and the need to provide adequate
deterrence. Dalton, 477 F.3d at 199. Finally, considering the
totality of the circumstances, including the extent of the
deviation as well as Johnson’s unscored prior felony drug
convictions and his propensity to reoffend, a 105-month sentence
was not an abuse of discretion. Gall, 552 U.S. at 51.
We also conclude that the district court did not err
in imposing a $1,000 fine due immediately. Before imposing a
fine, the district court must consider specific factors and make
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specific findings regarding the defendant’s ability to pay. 18
U.S.C. § 3572 (2006); USSG § 5E1.2; United States v. Walker, 39
F.3d 489, 492 (4th Cir. 1994). However, in United States v.
Taylor, 984 F.2d 618, 621-22 (4th Cir. 1993), we upheld a fine
imposed without specific findings where the fine was only
$2,000, the defendant could make payments on the fine through
income earned in prison, the findings in the presentence report
adequately supported the fine, and the defendant failed to
object to the fine at sentencing. A defendant’s failure to
object to the calculation of a fine at sentencing waives
appellate review absent plain error. United States v. Castner,
50 F.3d 1267, 1277 (4th Cir. 1995); see Olano, 507 U.S. at 732.
Here, the district court did not plainly err in
calculating a $1,000 fine due immediately. Though the court did
not explicitly articulate its consideration of the appropriate
factors, it did find that Johnson was unable to pay a within-
Guidelines fine and accordingly departed downward from $5,000 to
$1,000. Taylor, 984 F.2d at 621-22. Moreover, the fine does
not contradict the presentence report, which opined that Johnson
could afford a $1,000 fine paid in installments using income
earned in prison and while on supervised release. Id. Even
though the court made the fine due immediately despite the
presentence report’s indication that Johnson could not presently
afford to pay, the court waived any interest. Accordingly, even
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assuming an error and that that error was plain, Johnson shows
no effect on his substantial rights. Olano, 507 U.S. at 732;
see also McGhee v. Clark, 166 F.3d 884, 886 (7th Cir. 1999)
(“[Immediate payment] directives generally are interpreted to
require not immediate payment in full but payment to the extent
that the defendant can make it in good faith, beginning
immediately.”) (internal quotation marks and citations omitted).
In accordance with Anders, we have reviewed the entire
record in this case and find no meritorious issues for appeal.
We therefore affirm the district court’s judgment. We deny
counsel’s motion to withdraw from representation. This court
requires that counsel inform Johnson, in writing, of the right
to petition the Supreme Court of the United States for further
review. If Johnson requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
was served on Johnson. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before this court and argument would not aid the
decisional process.
AFFIRMED
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