US v. Shawn Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--granting Motion to dismiss appeal in part [998996813-2]. Originating case number: 1:11-cr-00114-CCB-1. Copies to all parties and the district court/agency. [999050217].. [12-4395]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 12-4395

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

Appeal from the United States District Court for the District of
Maryland, at Baltimore.
Catherine C. Blake, District Judge.
(1:11-cr-00114-CCB-1)

Submitted:

February 21, 2013

Before AGEE and
Circuit Judge.

DAVIS,

Circuit

Decided: February 25, 2013

Judges,

and

HAMILTON,

Senior

Affirmed in part and dismissed in part by unpublished per curiam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

Teresa Whalen, LAW OFFICE OF TERESA WHALEN, Silver Spring,
Maryland, for Appellant.
Christopher M. Mason, Special
Assistant United States Attorney, Benjamin M. Block, OFFICE OF
THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Shawn Johnson pled guilty to one count of conspiracy
to distribute and possess with intent to distribute one kilogram
or more of heroin and 1,000 kilograms or more of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1), 846 (2006).

In his plea

agreement, Johnson waived the right to appeal his conviction and
sentence, reserving only the right to appeal a sentence greater
than 160 months.
agreement

with

Pursuant to his Fed. R. Crim. P. 11(c)(1)(C)

the

Government,

months’ imprisonment.

Johnson

was

sentenced

to

160

Johnson appealed.

Johnson’s counsel has filed a brief in accordance with
Anders v. California, 386 U.S. 738 (1967), certifying that there
are no non-frivolous issues for appeal, but questioning whether
Johnson’s

guilty

plea

was

valid

Johnson’s sentence is reasonable.

under

Rule

11

and

whether

Although advised of his right

to do so, Johnson has not filed a pro se supplemental brief.
The

Government

has

moved

to

dismiss

Johnson’s

appeal

to

the

extent that the issues he raises fall within the scope of his
plea agreement’s waiver of appellate rights.

For the following

reasons, we grant the Government’s motion for partial dismissal,
dismiss in part, and affirm in part.
Pursuant to a plea agreement, a defendant may waive
his appellate rights under 18 U.S.C. § 3742 (2006).

United

States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010).

A valid

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waiver will preclude appeal of a given issue if the issue is
within the scope of the waiver.

United States v. Blick, 408

F.3d 162, 168 (4th Cir. 2005).

The validity of an appellate

waiver is a question of law that we review de novo.

Id.

“The

validity of an appeal waiver depends on whether the defendant
knowingly

and

appeal.”

intelligently

agreed

to

waive

the

right

to

Id. at 169.
Here, the district court fully complied with Rule 11

when accepting Johnson’s plea, ensuring that Johnson understood
the

rights

he

was

relinquishing

by

pleading

guilty

and

the

sentence he faced, that Johnson committed the offense to which
he was pleading, and that Johnson was aware of the limits his
plea would place on his appellate rights.
to

the

contrary,

we

find

valid and enforceable.

that

Johnson’s

Given no indication
appellate

waiver

is

Moreover, under 18 U.S.C. § 3742(c), a

defendant’s appeal of a sentence to which he stipulated in a
Rule

11(c)(1)(C)

plea

agreement

is

limited

to

circumstances

where “his sentence was imposed in violation of law [or] was
imposed

as

a

result

sentencing guidelines.”
797

(10th

Cir.

1998)

of

an

incorrect

application

of

the

United States v. Sanchez, 146 F.3d 796,
(internal

quotation

omitted; alteration in original).

marks

and

citation

Accordingly, we grant the

Government’s motion for partial dismissal, dismissing Johnson’s
appeal of his sentence.
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But even a valid waiver of appellate rights will not
foreclose

a

colorable

constitutional

voluntariness of a guilty plea.

challenge

to

the

See, e.g., United States v.

Attar, 38 F.3d 727, 732–33 & n.2 (4th Cir. 1994).

Accordingly,

Johnson’s appellate waiver does not foreclose our review of the
knowing

and

voluntary

nature

of

his

guilty

plea.

Because

Johnson did not move to withdraw his guilty plea, however, we
review his Rule 11 hearing for plain error.

United States v.

Martinez, 277 F.3d 517, 525 (4th Cir. 2002).

As noted above,

the district court fully complied with Rule 11 when accepting
Johnson’s

guilty

plea,

and,

question its validity.

therefore,

we

find

no

reason

to

See United States v. Lambey, 974 F.2d

1389, 1394 (4th Cir. 1992) (en banc).
In

accordance

with

Anders,

we

have

reviewed

the

record, mindful of the scope of the appellate waiver, and have
found no meritorious issues for appeal.
appeal in part and dismiss in part.

We therefore affirm the
This court requires that

counsel inform Johnson, in writing, of his 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, 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.
dispense

with

oral

argument

because
4

the

facts

and

We

legal

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

AFFIRMED IN PART;
DISMISSED IN PART

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