United States v. Juan Johnson

Filing

PER CURIAM OPINION FILED - THE COURT: DIANA E. MURPHY, MORRIS S. ARNOLD and LAVENSKI R. SMITH (UNPUBLISHED); Granting [3901536-2] motion to withdraw as counsel filed by Ms. Erica Mynarich subject to counsel informing Mr. Johnson about procedures for seeking rehearing or filing a petition for certiorari. [3943377] [12-1392]

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United States Court of Appeals For the Eighth Circuit ___________________________ No. 12-1392 ___________________________ United States of America lllllllllllllllllllll Appellee v. Juan A. Johnson lllllllllllllllllllll Appellant ____________ Appeal from United States District Court for the Western District of Missouri ____________ Submitted: August 7, 2012 Filed: August 17, 2012 [Unpublished] ____________ Before MURPHY, ARNOLD, and SMITH, Circuit Judges. ____________ PER CURIAM. Juan Johnson pleaded guilty to wire fraud, in violation of 18 U.S.C. §§ 1343, 2. The district court1 sentenced him to time served in prison plus three years of 1 The Honorable Ortrie D. Smith, United States District Judge for the Western District of Missouri. Appellate Case: 12-1392 Page: 1 Date Filed: 08/17/2012 Entry ID: 3943377 supervised release, and entered a restitution judgment ordering him to pay restitution in the amount of $74,724.02. On appeal, Mr. Johnson’s counsel has moved to withdraw, and has filed a brief under Anders v. California, 386 U.S. 738 (1967), acknowledging that Mr. Johnson entered into a written plea agreement containing an appeal waiver, but raising issues related to (1) the effectiveness of counsel, (2) Mr. Johnson’s term of supervised release, and (3) the amount of restitution Mr. Johnson was ordered to pay. Mr. Johnson has filed a pro se supplemental brief raising essentially the same issues. We decline to address Mr. Johnson’s ineffective-assistance arguments in this direct criminal appeal. See United States v. McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007) (appellate court ordinarily defers ineffective-assistance claim to 28 U.S.C. § 2255 proceedings). With respect to Mr. Johnson’s challenge to his supervisedrelease term, we conclude that the appeal waiver bars our review. See United States v. Andis, 333 F.3d 886, 889-92 (8th Cir. 2003) (en banc) (setting forth standard for enforcing appeal waivers). As to Mr. Johnson’s challenge to the restitution amount, we find that the issue is outside the scope of the appeal waiver, but we conclude that the restitution judgment does not reflect any error, much less plain error. See United States v. Moten, 551 F.3d 763, 768 (8th Cir. 2008) (18 U.S.C. § 3663A authorizes restitution for all losses caused, not simply losses that wound up in defendant’s own pocket); see also United States v. Louper-Morris, 672 F.3d 539, 566 (8th Cir. 2012) (restitution order reviewed for plain error when defendant did not challenge it at sentencing). Finally, having independently reviewed the record under Penson v. Ohio, 488 U. S. 75 (1988), we find no nonfrivolous issue beyond the scope of the appeal waiver. Accordingly, we decline to consider Mr. Johnson’s ineffective-assistance arguments; we enforce the appeal waiver with respect to his supervised-release term; we affirm the restitution judgment; and we grant counsel permission to withdraw, -2- Appellate Case: 12-1392 Page: 2 Date Filed: 08/17/2012 Entry ID: 3943377 subject to counsel informing Mr. Johnson about procedures for seeking rehearing or filing a petition for certiorari. ______________________________ -3- Appellate Case: 12-1392 Page: 3 Date Filed: 08/17/2012 Entry ID: 3943377

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