USA v. Johnny Dawson

Filing

Opinion issued by court as to Appellant Johnny L. Dawson. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. Motion to withdraw as counsel filed by Ryan Thomas Truskoski is GRANTED. [8323227-2]. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 17-14314

Date Filed: 04/13/2018

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-14314
Non-Argument Calendar
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D.C. Docket No. 8:16-cr-00500-VMC-AEP-1

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JOHNNY L. DAWSON,
Defendant - Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(April 13, 2018)
Before TJOFLAT, MARTIN, and NEWSOM, Circuit Judges.
PER CURIAM:

Case: 17-14314

Date Filed: 04/13/2018

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Johnny L. Dawson appeals his conviction by guilty plea as a felon in
possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). He also
appeals his sentence of 15-years imprisonment followed by 5-years supervised
release imposed pursuant to 18 U.S.C. § 924(e), the Armed Career Criminal Act
(“ACCA”). Dawson’s appointed counsel asserts that Dawson has no meritorious
issues to bring to our attention on appeal. See Anders v. California, 386 U.S. 738,
87 S. Ct. 1396 (1967). As a result, counsel has filed a 16-page brief “pointing the
court to any argument which may arguably support an appeal.” United States v.
Edwards, 822 F.2d 1012, 1013 (11th Cir. 1987) (per curiam). Dawson received a
copy of counsel’s Anders brief, as required. Anders, 386 U.S. at 744, 87 S. Ct. at
1400. On January 9, 2018, Dawson responded to the Anders brief by filing his
own pro se brief.
As Anders requires, we have carefully reviewed counsel’s brief, Dawson’s
brief, as well as the record. Id. We have independently determined there are no
issues of arguable merit for our review. Id. Dawson’s pro se claim that he was
inappropriately sentenced to a 15-year prison term under ACCA is without merit,
as the record indicates his sentence was based in part on his three prior convictions
under Florida Statute § 893.13(1). These convictions qualify as “serious drug
offenses” under ACCA. See United States v. Smith, 775 F.3d 1262, 1268 (11th

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Cir. 2014) (holding that convictions under Fla. Stat. § 893.13(1) qualify as “serious
drug offense[s]” under § 924(e)(2)(A) of ACCA).
Also without merit is Dawson’s pro se claim that the district court did not
take proper steps to ensure his guilty plea was knowing, intelligent, and voluntary
in light of his personal and family history of mental and cognitive impairment.
Indeed, Dawson told the magistrate judge during his plea colloquy he had never
been treated for mental illness, and, through the Pre-Sentence Report, he verified
he had “no personal or family history of mental or emotional health problems.”
See United States v. Medlock, 12 F.3d 185, 187 (11th Cir. 1994) (reiterating rule
that “[t]here is a strong presumption that the statements made during [a plea]
colloquy are true”).
In his pro se brief, Dawson also argues he did not plead guilty knowingly,
intelligently, and voluntarily because the district court did not tell him he could
face a 15-year ACCA prison sentence before this sentence was imposed.
However, during his guilty plea colloquy, which was three months before his
sentencing, the magistrate judge affirmatively told Dawson that he might be
subject to “a mandatory minimum term of imprisonment of 15 years.” The
magistrate judge then expressly asked Dawson whether he understood the penalties
he faced, and Dawson replied, “Yes, sir.” Therefore, this argument has no merit.

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Finally, Dawson appears to argue that his trial counsel misled him during
plea negotiations and that trial counsel failed to account for his “mental incapacity”
in advising him. We view this as a claim that Dawson’s trial lawyer violated his
Sixth Amendment right to effective assistance of counsel. See McMann v.
Richardson, 397 U.S. 759, 771 & n.14, 90 S. Ct. 1441, 1449 & n.14 (1970)
(defendants are “entitled to the effective assistance of competent counsel” during
plea negotiations). Understood as such, this claim would more properly be brought
in a motion to vacate under 28 U.S.C. § 2255, so that an evidentiary record may be
developed. Without such a record before us here, we decline to decide this claim.
See United States v. Tynsdale, 209 F.3d 1292, 1294 (11th Cir. 2000) (per curiam).
We find no issues of arguable merit for our review at this juncture. We
therefore AFFIRM Dawson’s conviction and sentence, and we GRANT counsel’s
motion to withdraw.

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