US v. Christopher Johnson

Filing 920081021

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-4454

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CHRISTOPHER RAESEAN JOHNSON, a/k/a C-Murder, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. Louise W. Flanagan, Chief District Judge. (5:05-cr-00209-FL)

Submitted:

September 30, 2008

Decided:

October 21, 2008

Before MOTZ, GREGORY, and SHEDD, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Robert J. McAfee, MCAFEE LAW, P.A., New Bern, North Carolina, for Appellant. Anne Margaret Hayes, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Christopher Raesean Johnson appeals his convictions

and 292-month sentence after he pled guilty to possession with intent to distribute more than five grams of crack cocaine

(Count 1), in violation of 21 U.S.C. § 841(a)(1) (2000), and possession of a firearm in furtherance of a drug trafficking crime (Count 2), in violation of 18 U.S.C.A. § 924(c)(1) (West 2000 & Supp. 2008). Johnson's counsel has filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious issues for appeal but questioning whether the district court erred by denying Johnson's motion to withdraw his guilty plea and whether the sentence is reasonable. Johnson has filed a pro se supplemental brief. reversible error, we affirm. Counsel first challenges the district court's denial of Johnson's motion to withdraw his guilty plea. a guilty plea is not a matter of right. Withdrawal of States v. Finding no

United

Ubakanma, 215 F.3d 421, 424 (4th Cir. 2000).

The defendant

bears the burden of showing a "fair and just reason" for the withdrawal of his guilty plea. "[A] `fair and just' reason Fed. R. Crim. P. 11(d)(2)(B). . . . is one that essentially

We have reviewed the claims raised in Johnson's supplemental informal brief and find them to be without merit.

2

challenges . . . the fairness of the Rule 11 proceeding . . . ." United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992) (en banc). An appropriately conducted Rule 11 proceeding, however, a strong presumption that the plea is final and

"raise[s] binding."

Id. at 1394. Here, the district court applied the factors courts

must consider in determining whether to permit withdrawal of a guilty plea. See Ubakanma, 215 F.3d at 424. Our review of the

record convinces us that the district court did not abuse its discretion in denying Johnson's motion to withdraw. States v. Dyess, 478 F.3d 224, 237 (4th Cir. See United (stating

2007)

standard of review). Counsel

We therefore affirm Johnson's convictions. questions whether Johnson's 292-month

also

career offender sentence is reasonable.

This court reviews the

sentence imposed by the district court for abuse of discretion. Gall v. United States, 128 S. Ct. 586, 597 (2007). appellate court concludes that the sentence is If the

"procedurally

sound," the court then considers the substantive reasonableness of the sentence. imposed within the Id. This court presumes that a sentence calculated Guidelines range is

properly

reasonable. 2008); (2007) see

United States v. Go, 517 F.3d 216, 218 (4th Cir. Rita v. United States, of 127 S. Ct. 2456, for 2462-69 within--

(upholding

presumption

reasonableness

Guidelines sentence). 3

In light of Gall, we find that Johnson's sentence is reasonable. error, First, the district court committed no procedural treating the Guidelines as advisory and

appropriately

considering the Guidelines range and the factors in 18 U.S.C.A. § 3553(a) (West 2000 & Supp. 2008) before imposing a 292-month prison term, a sentence at the bottom of the guidelines range. Applying Johnson the has presumption failed to of reasonableness the and finding that we

rebut

presumption

on

appeal,

conclude that his 292-month sentence is reasonable. F.3d at 218; see also Rita, 127 S. Ct. at 2462-69.

See Go, 517

In accordance with Anders, we have reviewed the record for any meritorious issues for appeal and have found none.

Thus, we affirm the district court's judgment and deny counsel's motion to withdraw. 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. that a petition be filed, but counsel If the client requests believes that such a

petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel's motion We

must state that a copy thereof was served on the client. 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 4