US v. Terryl Johnson

Filing 920090313

Opinion

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-4563 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TERRYL OMAR JOHNSON, Ricardo Johnson, a/k/a Jamaican Kirk, a/k/a Marlon Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. John Preston Bailey, Chief District Judge. (3:06-cr-00044-JPB-1) Submitted: January 26, 2009 Decided: March 13, 2009 Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed in part; dismissed in part by unpublished per curiam opinion. Brian C. Crockett, Assistant Martinsburg, West Virginia, for Mucklow, Assistant United States Virginia, for Appellee. Federal Public Defender, Appellant. Thomas Oliver Attorney, Martinsburg, West Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Terryl Omar Johnson pled guilty pursuant to a written plea agreement to one count of possession with intent to distribute 2.26 grams or more of cocaine base, in violation of 21 U.S.C. to 841(a)(1) a (2006). term The of district court On sentenced appeal, Johnson 151-month imprisonment. Johnson's counsel has filed an Anders 1 brief, noting that there are no meritorious issues for appeal, but questioning the reasonableness of Johnson's sentence. Johnson has filed a pro The Government se supplemental brief raising several issues. has moved to dismiss the appeal based on Johnson's waiver of appellate rights. A waiver is We affirm in part and dismiss in part. may waive the right United to appeal v. if that defendant knowing and intelligent. States Amaya- Portillo, 423 F.3d 427, 430 (4th Cir. 2005). Generally, if the district court fully questions a defendant regarding the waiver of his right to appeal during the Fed. R. Crim. P. 11 colloquy, the waiver is both valid and enforceable. United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005); United States v. Wessells, 936 F.2d 165, 167-68 (4th Cir. 1991). The question of whether a defendant validly waived his right to appeal is a 1 Anders v. California, 386 U.S. 738 (1967). 2 question of law that we review de novo. 408 F.3d 162, 168 (4th Cir. 2005). United States v. Blick, Our review of the record leads us to conclude that Johnson knowingly and voluntarily waived the right to appeal his sentence. Moreover, the sentencing claim Johnson's counsel We raises on appeal falls within the scope of the waiver. therefore grant the Government's motion to dismiss this portion of the appeal. Although the waiver provision in the plea agreement precludes our review of the sentence, the waiver does not preclude our review of any errors in Johnson's conviction that may be revealed by our review pursuant to Anders. reviewed the entire record in this case and Thus, we have have found no meritorious issues not covered by the appeal waiver. Our review of the transcript of the plea colloquy leads us to conclude that the magistrate judge substantially complied with the mandates of Fed. R. Crim. P. 11 in accepting Johnson's guilty plea and that any omissions did not affect his substantial rights. Critically, the magistrate judge and the district court ensured that the plea was entered knowingly and voluntarily and was supported by an independent factual basis. See United States v. Moreover, DeFusco, 949 F.2d 114, 116, 119-20 (4th Cir. 1991). 3 none of the issues in Johnson's pro se supplemental brief raise meritorious issues for direct appeal. 2 Accordingly, we affirm the judgment insofar as it relates to Johnson's conviction and dismiss the appeal of his sentence. This court requires that counsel inform his client, in writing, of the 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, then counsel may move in this court for leave to withdraw from representation. Counsel's motion must We dispense state that a copy thereof was served on the client. 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 IN PART; DISMISSED IN PART To the extent Johnson's pro se supplemental brief challenges the computation of his sentence by the Bureau of Prisons, this claim may be pursued in a petition under 28 U.S.C. 2241 (2006), which is properly commenced in the federal district court for the district in which Johnson is confined. See United States v. Miller, 871 F.2d 488, 490 (4th Cir. 1989). 2 4

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