United States v. Johnson , 112 F. App'x 266 ( 2004 )

Vacated by Supreme Court, February 28, 2005
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 03-4105
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
WILLIAM L. JOHNSON, a/k/a Buddy,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington. Joseph Robert Goodwin,
District Judge. (CR-02-148)
Submitted: September 20, 2004 Decided: October 19, 2004
Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Barron M. Helgoe, VICTOR VICTOR & HELGOE, LLP, Charleston, West
Virginia, for Appellant. Kasey Warner, United States Attorney,
Miller A. Bushong, III, Assistant United States Attorney,
Charleston, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
William L. Johnson pled guilty to distribution of cocaine
base (crack) and was sentenced to 151 months imprisonment. Johnson
initially contended on appeal that the district court erred in
dismissing his pro se motion for reconsideration and resentencing
for lack of jurisdiction. We previously remanded his case for a
determination of whether Johnson’s motion for reconsideration of
his sentence was timely filed under Houston v. Lack, 487 U.S. 266(1988), before his attorney filed the notice of appeal. United
States v. Johnson, No. 03-4105 (4th Cir. Oct. 17, 2003)
(unpublished). The district court determined that the motion for
reconsideration was filed before the notice of appeal and that the
district court thus retained jurisdiction to consider the motion.
We remanded the case a second time for a ruling on the motion.
United States v. Johnson, No. 03-4105 (4th Cir. Apr. 21, 2004)
(unpublished). The district court subsequently denied the motion
to reconsider. Johnson does not appeal this decision.
Johnson also contends on appeal that he was denied
effective assistance of counsel at sentencing in that his attorney
failed to request a downward departure based on his medical
condition. To succeed in a claim of ineffective assistance on
direct appeal, a defendant must show conclusively from the face of
the record that counsel provided ineffective representation.
United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999)
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(providing standard and noting that ineffective assistance of
counsel claims generally should be raised by motion under 28 U.S.C.
§ 2255 (2000)). Because the defendant’s health is a discouraged
factor for departure under U.S. Sentencing Guidelines Manual
§ 5H1.4, p.s. (2002), and the district court did not indicate any
desire to depart below the guideline range on this ground, the
record does not conclusively demonstrate that Johnson’s attorney
was ineffective in failing to request a departure pursuant to
§ 5H1.4.
We therefore affirm the sentence.* We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.
AFFIRMED
*
Counsel for Johnson has filed a motion seeking leave to file
a supplemental brief so that he may challenge his sentence under
Blakely v. Washington, 124 S. Ct. 2531 (2004). The motion is
hereby granted, and the motion is deemed to provide the
supplemental argument regarding the effect of Blakely. After
consideration of this court’s en banc opinion in United States v.
Hammoud, ___ F.3d ___, 2004 WL 2005622 (4th Cir. 2004), petition
for cert. filed, ___ U.S.L.W. ___, (U.S. Aug. 6, 2004) (No. 04-
193), we find no error in Johnson’s sentence. We do not deem it
necessary to remand the case so that the district court may
announce an alternative sentence.
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