US v. Michael Johnson, No. 09-5035 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-5035 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL WARREN JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:09-cr-00013-MR-11) Submitted: June 29, 2010 Decided: July 16, 2010 Before WILKINSON and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. D. Baker McIntyre III, Charlotte, North Carolina, for Appellant. Amy Elizabeth Ray, Assistant United States Attorney, Asheville, North Carolina, Edward R. Ryan, Acting United States Attorney, Charlotte, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Michael Warren Johnson appeals his conviction and 168 month sentence for one count of possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 846, 851 (2006). His attorney has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), certifying that there are no meritorious issues for appeal, but questioning whether the district court properly calculated and imposed Johnson s sentence and whether Johnson received ineffective assistance of counsel. Although Johnson was notified of his right to file a pro se supplemental brief, he has not done so. We affirm. We review a sentence for reasonableness under an abuse of discretion standard. (2007). the Id. Gall v. United States, 552 U.S. 38, 51 This review requires appellate consideration of both procedural In and substantive determining whether reasonableness a sentence of is a sentence. procedurally reasonable, we first assess whether the district court properly See Gall, calculated the defendant s advisory guideline range. 552 U.S. at 49, 51. We then consider whether the district court failed to consider the 18 U.S.C. § 3553(a) (2006) factors and any arguments presented by the parties, selected a sentence based on clearly erroneous facts, or failed to sufficiently explain the selected sentence. See id. at 49-50, 51. 2 Finally, we review the substantive reasonableness of the sentence, taking into account the totality of the circumstances, including the extent of any variance from the Guidelines range. United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007) (quoting Gall, 552 U.S. at 51). When reviewing the district court s application of the sentencing guidelines, we review findings of fact for clear error and questions of law de novo. United States v. Osborne, 514 F.3d (4th Cir.), cert. denied, 128 S. Ct. 2525 (2008). sentence within the properly calculated 377, 387 We afford a guideline range a United States v. Green, 436 F.3d presumption of reasonableness. 449, 457 (4th Cir. 2006); see Rita v. United States, 551 U.S. 338, 341, 347 (2007). On the Government s motion, Johnson actually received a sentence well imprisonment identified below (the statutory no error his in guideline mandatory this term of 240 minimum). sentence, either months Counsel has procedural or substantive, and we concur. Finally, ineffective the assistance post-conviction claim is that more proceeding counsel may brought pursuant rendered considered appropriately have in to 28 a U.S.C.A. § 2255 (West Supp. 2010), unless counsel s alleged deficiencies conclusively appear on the record. See United Richardson, 195 F.3d 192, 198 (4th Cir. 1999). 3 States v. Because we find no conclusive evidence on the record that counsel rendered ineffective assistance, we decline to consider this claim on direct appeal. As required by 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 Johnson, in writing, of the 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, then counsel may move representation. in this court for leave to withdraw from Counsel s motion must state that a copy thereof was served on Johnson. We dispense with oral argument because the facts and legal before contentions the court are adequately and argument presented would not in aid the the materials decisional process. AFFIRMED 4
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