United States v. Johnson , 235 F. App'x 169 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-5001
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
JONATHAN PAUL JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Matthew J. Perry, Jr., Senior
District Judge. (3:04-cr-00545-MJP)
Submitted: May 16, 2007 Decided: August 16, 2007
Before MICHAEL, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Allen B. Burnside, Assistant Federal Public Defender, Columbia,
South Carolina, for Appellant. Stacey Denise Haynes, OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jonathan Paul Johnson appeals the 188-month sentence
imposed on remand after he pled guilty, pursuant to a plea
agreement, to one count of possession of a firearm after having
been convicted of a crime punishable by more than one year of
imprisonment, in violation of 18 U.S.C. § 922(g) (2000), and one
count of possession with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. § 841(a)(1) (2000). In our
earlier decision, we vacated Johnson’s 120-month sentence and
remanded for resentencing consistent with this court’s
interpretations of United States v. Booker, 543 U.S. 220 (2005).
United States v. Johnson, 175 F. App’x 631 (4th Cir. 2006) (No. 05-
4242).
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), in which he states there are no
meritorious issues for appeal, but questions whether the district
court imposed an unreasonable sentence by refusing to vary from the
guideline range. In a pro se supplemental brief captioned as a
“motion to vacate sentence and remand for re-sentencing,” Johnson
asserts that he was improperly classified as a career offender and
that the career offender status overstates his criminal history.
We conclude that Johnson’s assertion that he was
improperly classified as a career offender is without merit.
Johnson did not object to the presentence report, and at sentencing
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counsel specifically stated that he had no basis to contest
Johnson’s career offender status. To the extent Johnson now argues
he was improperly found to be a career offender, this argument is
reviewed for plain error. United States v. Hughes, 401 F.3d 540,
547 (4th Cir. 2005). Our review of the record leads us to conclude
that there was no error in the district court’s conclusion that
Johnson was subject to sentencing as a career offender.
To the extent Johnson contends the district court should
have departed below the applicable Guidelines* range or imposed a
variance sentence, this argument is unreviewable. In this case, it
is clear that the district court understood its authority to depart
or to impose a variance sentence. Therefore, its decision not to
depart or vary from the Guidelines on resentencing is not
reviewable. See United States v. Edwards, 188 F.3d 230, 238 (4th
Cir. 1999). We further conclude that Johnson’s sentence, which is
within the statutory maximum and the Guidelines range, is
reasonable.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore deny Johnson’s motion to remand and his motion for
appointment of a law student to assist appellate counsel, and
affirm his sentence. This court requires that counsel inform
Johnson, in writing, of the right to petition the Supreme Court of
*
U.S. Sentencing Guidelines Manual (USSG) (2005).
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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 in this court for leave to
withdraw from representation. Counsel’s motion must state that a
copy thereof was served on Johnson.
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
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