US v. Michael Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:09-cr-00013-MR-11 Copies to all parties and the district court/agency. [998381302] [09-5035]

US v. Michael Johnson

Doc. 0

Case: 09-5035 Document: 61

Date Filed: 07/16/2010

Page: 1

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5035 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL WARREN JOHNSON, Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00013-MR-11) Submitted: June 29, 2010 Decided: July 16, 2010

Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit.

Dockets.Justia.com

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PER CURIAM: Michael Warren Johnson appeals his conviction and 168 month sentence for one count of possession with intent to

distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846, 851 (2006). His attorney has filed a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning whether the district court properly calculated and imposed Johnson's

sentence and whether Johnson received ineffective assistance of counsel. Although Johnson was notified of his right to file a We affirm.

pro se supplemental brief, he has not done so.

We review a sentence for reasonableness under an abuse of discretion standard. (2007). the Id. Gall v. United States, 552 U.S. 38, 51

This review requires appellate consideration of both and substantive whether reasonableness a sentence of is a sentence.

procedural In

determining

procedurally

reasonable, we first assess whether the district court properly calculated the defendant's advisory guideline range. 552 U.S. at 49, 51. See Gall,

We then consider whether the district court

failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, selected a sentence

based on "clearly erroneous facts," or failed to sufficiently explain the selected sentence. See id. at 49-50, 51.

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Finally, we review the substantive reasonableness of the sentence, "taking into account the `totality of the

circumstances, including the extent of any variance from the Guidelines range.'" United States v. Pauley, 511 F.3d 468, 473 When reviewing

(4th Cir. 2007) (quoting Gall, 552 U.S. at 51).

the district court's application of the sentencing guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Osborne, 514 F.3d 377, 387

(4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). sentence within the properly calculated

We afford a range a

guideline

presumption of reasonableness.

United States v. Green, 436 F.3d

449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S. 338, 341, 347 (2007). On the Government's motion, Johnson actually received a sentence well (the below his guideline mandatory term of 240 months' has or

imprisonment identified

statutory in

minimum). either

Counsel procedural

no

error

this

sentence,

substantive, and we concur. Finally, ineffective the claim is that counsel may have rendered in a

assistance

more

appropriately pursuant

considered to 28

post-conviction

proceeding

brought

U.S.C.A.

§ 2255 (West Supp. 2010), unless counsel's alleged deficiencies conclusively appear on the record. See United States v.

Richardson, 195 F.3d 192, 198 (4th Cir. 1999). 3

Because we find

Case: 09-5035 Document: 61

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no

conclusive

evidence

on

the

record

that

counsel

rendered

ineffective assistance, we decline to consider this claim on direct appeal. As required by Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. therefore affirm the district court's judgment. This We

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 in 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 before contentions the court are and adequately argument presented not in aid the the materials decisional

would

process. AFFIRMED

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