US v. Daniel Johnson

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 8:11-cr-02354-HMH-1 Copies to all parties and the district court/agency. [999806701].. [15-4553]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-4553

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

Appeal from the United States District Court for the District of
South Carolina, at Anderson.
Henry M. Herlong, Jr., Senior
District Judge. (8:11-cr-02354-HMH-1)

Submitted:

March 30, 2016

Before WILKINSON and
Senior Circuit Judge.

GREGORY,

Decided:

Circuit

Judges,

April 28, 2016

and

HAMILTON,

Affirmed by unpublished per curiam opinion.

Benjamin
T.
Stepp,
Assistant
Federal
Public
Defender,
Greenville, South Carolina, for Appellant.
Maxwell B. Cauthen,
III,
Assistant
United States
Attorney,
Greenville,
South
Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Daniel

Dondrekus

Johnson

appeals

the

district

court’s

judgment revoking his supervised release and sentencing him to
two years in prison.

Johnson’s attorney has filed a brief under

Anders v. California, 386 U.S. 738 (1967), asserting there are
no

meritorious

grounds

for

appeal

but

raising

the

issue

of

whether the district court procedurally erred in sentencing him
to 24 months in prison.

Johnson has filed a pro se supplemental

brief raising the issues of whether his counsel was ineffective
and

whether

the

district

court

erred

in

finding

that

he

committed new criminal conduct in beating his ex-girlfriend and
that he lied about it at his revocation hearing.

We affirm.

We review a district court’s judgment revoking supervised
release

and

imposing

a

term

of

imprisonment

for

abuse

of

discretion.

United States v. Copley, 978 F.2d 829, 831 (4th

Cir. 1992).

We review the district court’s factual findings

underlying

a

revocation

for

clear

error.

United

States

v.

Padgett, 788 F.3d 370, 373 (4th Cir.), cert. denied, 136 S. Ct.
494 (2015).

To revoke supervised release, a district court need

only find a violation of supervised release by a preponderance
of the evidence.

18 U.S.C. § 3583(e)(3) (2012).

This standard

“simply requires the trier of fact to believe that the existence
of

a

fact

is

more

probable

than

2

its

nonexistence.”

United

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States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (citation
and internal quotation marks omitted).
We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
“plainly

unreasonable.”

omitted).
a

term

Padgett,

788

F.3d

at

373

(citation

The district court retains broad discretion to impose

of

imprisonment

up

to

the

statutory

maximum.

Id.

(citations and quotation marks omitted).
Only if the revocation sentence is unreasonable must we
assess whether it is plainly so.

Id. (citation omitted).

In

determining whether a revocation sentence is unreasonable, we
are

informed

by

the

same

procedural

and

substantive

considerations that guide our review of original sentences but
we strike a more deferential appellate posture.
and quotation marks omitted).

Id. (citations

While the district court must

explain its sentence, it “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
a post-conviction sentence.”

United States v. Thompson, 595

F.3d 544, 547 (4th Cir. 2010).
“It

is

well

established

that

a

defendant

may

raise

[a]

claim of ineffective assistance of counsel in the first instance
on direct appeal if and only if it conclusively appears from the
record that . . . counsel did not provide effective assistance.”
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)
3

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(citation and internal quotation marks omitted).
[he]

must

raise

[his]

claim

in

the

“Otherwise,

district

court

collateral challenge pursuant to 28 U.S.C. § 2255.”

by

a

Id.

We have reviewed the record and conclude that the district
court did not clearly err in finding that Johnson committed new
criminal conduct in beating his ex-girlfriend and that he lied
about it at his revocation hearing.

We further conclude his

sentence is reasonable, and the district court did not abuse its
discretion in revoking his supervised release and sentencing him
to the statutory maximum.
not

conclusively

show

Finally, we conclude the record does

ineffective

assistance,

and

Johnson’s

claim should be raised, if at all, in a 28 U.S.C. § 2255 motion.
In accordance with 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 his or her client, in writing, of
his or her 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

state that a copy thereof was served on the client.

We dispense

with oral argument because the facts and legal contentions are

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adequately

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presented

in

the

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materials

before

the

court

and

argument would not aid the decisional process.
AFFIRMED

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