US v. Ricky Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [998804951-2]; denying Motion to dismiss appeal in part [998804951-2] Originating case number: 2:10-cr-00155-RGD-FBS-1 Copies to all parties and the district court. [998851532].. [11-4917]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-4917

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICKY SHERELLE JOHNSON,
Defendant - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk.
Robert G. Doumar, Senior
District Judge. (2:10-cr-00155-RGD-FBS-1)

Submitted:

May 4, 2012

Decided:

May 10, 2012

Before MOTZ, KING, and AGEE, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam
opinion.

Edwin F. Brooks, EDWIN F. BROOKS, LLC, Richmond, Virginia, for
Appellant.
Cameron Rountree, Special Assistant United States
Attorney, Norfolk, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Ricky
written

plea

furtherance
U.S.C.

Sherelle

Johnson

agreement,

of

a

drug

§ 924(c)(1)(A)

to

pled

possession

trafficking
(2006).

his

trial

counsel

was

of

crime,

The

Johnson to 262 months’ imprisonment.
that

guilty,

in

pursuant
a

firearm

violation

district

to

court

of

a
in
18

sentenced

On appeal, Johnson argues

constitutionally

ineffective

for

advising him to enter into a plea agreement without explaining
that he could be subject to an enhanced sentence as a career
offender and failing to file an appeal as he requested.
addition,

Johnson

argues

that

the

district

court

In

erroneously

sentenced him as a career offender.
The Government seeks to enforce the appellate waiver
provision

of

the

Johnson’s

plea

appeal. ∗

In

agreement

and

response,

has

Johnson

moved
asserts

to

dismiss

that

the

appellate waiver is unenforceable because his counsel provided
ineffective assistance and maintained a conflict of interest in
advising

Johnson

to

enter

into

a

plea

agreement

with

the

Government.

∗

The Government also notes that Johnson’s pro se notice of
appeal is untimely, as it was filed on September 6, 2011, more
than three months after judgment was entered on May 16, 2011.
However, the Government waives the untimeliness of Johnson’s
appeal, seeking dismissal solely based upon Johnson’s appellate
waiver.

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A defendant may, in a valid plea agreement, waive the
right to appeal under 18 U.S.C. § 3742 (2006).
Wiggins, 905 F.2d 51, 53 (4th Cir. 1990).

United States v.

An appellate waiver

must be “the result of a knowing and intelligent decision to
forgo the right to appeal.”

United States v. Broughton-Jones,

71 F.3d 1143, 1146 (4th Cir. 1995) (internal quotation marks and
citation omitted).

We review de novo whether a defendant has

effectively waived his right to appeal.

United States v. Marin,

961 F.2d 493, 496 (4th Cir. 1992).
To

determine

intelligent,

this

circumstances,

whether

court

including

a

waiver

examines
the

“the

experience

is

knowing

totality
and

conduct

of
of

and
the
the

accused, as well as the accused’s educational background and
familiarity

with

the

terms

of

the

plea

agreement.”

United

States v. General, 278 F.3d 389, 400 (4th Cir. 2002) (internal
quotation marks and citation omitted).

Generally, if a court

fully questions a defendant regarding the waiver of his right to
appeal during the Rule 11 colloquy, the waiver is both valid and
enforceable.

United States v. Johnson, 410 F.3d 137, 151 (4th

Cir. 2005).

However, this court will “refuse to enforce an

otherwise valid waiver if to do so would result in a miscarriage
of

justice.”

Id.

(internal

quotation

omitted).

3

marks

and

citation

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The

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language

of

the

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waiver

provision

is

clear

and

unambiguous, setting forth a broad waiver of appellate rights;
Johnson agreed to waive the right to appeal “the conviction and
any

sentence

whatsoever.”
provision

within

statutory

maximum”

on

“any

ground

The court questioned Johnson regarding the waiver

numerous

colloquy.

the

times

during

the

Fed.

R.

Crim.

P.

11

Johnson, thirty-one-years-old with a GED, indicated

that he had reviewed the waiver provision and understood its
terms.
be

In addition, the court advised Johnson that he would not

able

to

withdraw

his

predictions

regarding

his

emphasized

that

Johnson’s

determined

until

the

guilty

plea

Guidelines

range

Guidelines

presentence

if

his

attorney’s

proved

inaccurate,

range

report

was

could

not

prepared,

be
and

cautioned that Johnson’s criminal history would be an important
factor
conclude

in

determining

that

Johnson

his

Guidelines

knowingly

and

range.

We

intelligently

right to appeal his conviction and sentence.

therefore
waived

his

As the district

court imposed a sentence within the statutory maximum, Johnson’s
challenge to his sentence falls within the scope of the waiver
and may not be reviewed by this court.
Johnson also asserts that his trial counsel provided
ineffective assistance by failing to explain that he could be
subject to an enhanced sentence as a career offender based upon
his criminal history and failing to file a direct appeal.
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This

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court is not precluded from considering claims of ineffective
assistance of counsel by the waiver provision, and we deny the
motion

to

dismiss

ineffective

as

to

these

claims.

assistance

of

counsel

should

However,
be

claims

raised

in

a

of
28

U.S.C.A. § 2255 (West Supp. 2010) motion rather than on direct
appeal,

unless

the

appellate

ineffective assistance.
435 (4th Cir. 2008).

record

conclusively

demonstrates

United States v. Benton, 523 F.3d 424,

Because the record here does not establish

that counsel was constitutionally ineffective, these claims are
not subject to review on direct appeal.
Accordingly,

we

grant

the

dismiss in part and deny it in part.
Johnson’s
district
facts

sentence
court.

and

materials

and

legal
before

We

otherwise

dispense

Government’s

oral

the

judgment

argument

contentions

are

adequately

the

and

argument

court

to

We dismiss the appeal of

affirm

with

motion

of

the

because

the

presented

would

not

in

the

aid

the

decisional process.

AFFIRMED IN PART;
DISMISSED IN PART

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