US v. Brian Johnson

Filing 920110307

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 10-4534

UNITED STATES OF AMERICA, Plaintiff ­ Appellee, v. BRIAN JOHNSON, Defendant ­ Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Louise W. Flanagan, Chief District Judge. (5:09-cr-00307-FL-1)

Submitted:

February 28, 2011

Decided:

March 7, 2011

Before TRAXLER, Chief Judge, and KING and DIAZ, Circuit Judges.

Dismissed by unpublished per curiam opinion.

G. Ryan Willis, Raleigh, North Carolina, for Appellant. George E. B. Holding, United States Attorney, Jennifer P. May-Parker, Jane J. Jackson, Assistant United States Attorneys, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM: Brian Johnson pled guilty to one count of conspiracy to interfere with commerce by robbery and aiding and abetting, 18 U.S.C. § 1951 & 2 (2006), * and was sentenced to a term of 198 months of imprisonment. arguing offense that level the by Johnson seeks to appeal his sentence, court for incorrectly carjacking, increased and failed his to

district two levels

adequately consider the sentencing factors, 18 U.S.C. § 3553(a) (2006). The government contends that the appeal should be

dismissed based on Johnson's waiver of appellate rights in his plea agreement. We agree, and dismiss the appeal.

We review a defendant's waiver of appellate rights de novo. 2005). United States v. Blick, 408 F.3d 162, 168 (4th Cir. A defendant may waive the right to appeal if the waiver United States v. Amaya-Portillo, Generally, if the defendant

is knowing and intelligent.

423 F.3d 427, 430 (4th Cir. 2005).

is fully questioned about the waiver during the plea colloquy, the waiver is valid and enforceable. United States v. Johnson,

A magistrate judge, acting with Johnson's consent, conducted the Fed. R. Crim. P. 11 hearing. See United States v. Osborne, 345 F.3d 281, 285 (4th Cir. 2003) (magistrate judge may conduct hearing if defendant waives right to enter guilty plea before district court judge).

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410 F.3d 137, 151 (4th Cir. 2005).

We will enforce a valid

waiver if the issue raised on appeal is within the scope of the waiver. Blick, 408 F.3d at 168. Here, knowing and the record reveals that Johnson's to his waiver was are

voluntary.

His

challenges

sentence

within the scope of the waiver provision. the appeal.

We therefore dismiss

We 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. DISMISSED

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