United States v. Johnson

                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 04-4054



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


TRAVIS DWAYNE JOHNSON,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(CR-02-333)


Submitted:   February 28, 2006            Decided:   March 16, 2006


Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


William F. Nettles, IV, Assistant Federal Public Defender,
Florence, South Carolina, for Appellant.     Jonathan S. Gasser,
United States Attorney, Rose Mary Parham, Assistant United States
Attorney, Florence, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

             Travis Dwayne Johnson appeals from his 204-month sentence

imposed following his guilty plea to possession of a firearm by a

convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(e)

(2000).     Johnson’s counsel filed a brief pursuant to Anders v.

California,    386    U.S.   738   (1967),     stating   that    there    were   no

meritorious issues for appeal, but addressing the propriety of the

colloquy pursuant to Fed. R. Crim. P. 11, and Johnson’s sentence as

an armed career criminal.           At the direction of the court, the

parties     filed   supplemental    briefs     addressing    the      validity   of

Johnson’s sentence under United States v. Booker, 543 U.S. 220

(2005).      Johnson was informed of his right to file a pro se

supplemental brief, but he has not done so.              Because our review of

the record discloses no reversible error, we affirm Johnson’s

conviction and sentence.

             We find that Johnson’s guilty plea was knowingly and

voluntarily entered after a thorough hearing pursuant to Rule 11.

Johnson was properly advised of his rights, the offense charged,

and   the   maximum    sentence    for   the    offense.        The   court   also

determined that there was an independent factual basis for the plea

and that the plea was not coerced or influenced by any promises.

See North Carolina v. Alford, 400 U.S. 25, 31 (1970); United

States v. DeFusco, 949 F.2d 114, 119-20 (4th Cir. 1991).




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          Johnson questions whether the district court properly

counted his South Carolina burglary convictions as violent felony

offenses for purposes of the Armed Career Criminal Act.         The

statute defines “violent felony” to include burglary.     18 U.S.C.

§ 924(e)(2)(B)(ii) (2000).       Thus, the district court properly

considered Johnson’s burglary convictions as predicate offenses

under the armed career criminal statute.      See Taylor v. United

States, 495 U.S. 575, 598-99 (1990); United States v. Hairston, 71

F.3d 115, 117 (4th Cir. 1995) (applying categorical approach to

definition of violent felony).

          In his supplemental brief, Johnson raises three grounds

of error under Booker.   First, he asserts that the district court

erred in applying U.S. Sentencing Guidelines Manual § 5G1.3(a)

(2002) as mandatory and imposing his federal sentence to run

consecutive to the state sentences that he was serving.     Because

this issue was not presented in the district court, this court

reviews for plain error.   United States v. Olano, 507 U.S. 725,

731-32 (1993); United States v. White, 405 F.3d 208, 215 (4th Cir.

2005).

          The district court’s imposition of Johnson’s sentence

under the mandatory sentencing guidelines regime was error, which

was plain.   White, 405 F.3d at 216-17.   In determining whether an

error affected the defendant’s substantial rights--the third prong

of the analysis--the defendant must show that the error “‘affected


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the outcome of the district court proceedings.’”                          Id. at 223

(quoting Olano, 507 U.S. at 734).

            Johnson asserts that the district court did not have the

opportunity       to   consider      an    alternative      application       of   the

guidelines because Blakely v. Washington, 542 U.S. 296 (2004), and

Booker had not yet been decided.              He states that “it might appear

that the district court considered a concurrent sentence.”                         The

asserted confusion arose due to a misstatement in the presentence

report.    The district court corrected this error, stating that “it

actually should have said consecutive.                It’s mandatory.       I have no

discretion.”       The court later explained, “even if [a consecutive

sentence]    is    not    mandated    [by     the   guidelines],      I     believe   a

consecutive sentence is appropriate in this case.”

            Because our review of “the record as a whole provides no

nonspeculative basis for concluding that the treatment of the

guidelines as mandatory ‘affect[ed] the district court’s selection

of   the   sentence      imposed,’”       White,    405   F.3d   at   223    (quoting

Williams v. United States, 503 U.S. 193, 203 (1992)), we conclude

that Johnson has not shown that he was prejudiced by the district

court’s determination of his sentence under the mandatory guideline

regime.

            Johnson next contends that his sentence violates Booker

because    the    district   court        sentenced   him   as   an   armed    career

criminal based on facts not included in the indictment, admitted by


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him, or found by a jury beyond a reasonable doubt.                           We have

recently held that a district court’s finding that a defendant had

qualifying    felony    convictions       that   supported      an   armed    career

criminal designation does not violate Booker. See United States v.

Cheek, 415 F.3d 349, 352-54 (4th Cir.), cert. denied, 126 S. Ct.

640 (2005).

           The final issue asserted in Johnson’s supplemental brief

is whether the district court’s finding that he had at least three

prior convictions for violent felonies committed on different

occasions from one another and sentencing him under the Armed

Career Criminal Act runs afoul of Booker.              We have recently held

that the dates of commission of the prior offenses is a fact of a

prior   conviction     and   need   not    be    alleged   in   the    indictment,

admitted by the defendant, or found beyond a reasonable doubt. See

United States v. Thompson, 421 F.3d 278, 286 (4th Cir.), pet. for

cert. filed (Oct. 25, 2005) (No. 05-7266). Accordingly, we find no

Booker error, much less plain error, by the district court in

making this determination.

           As required by Anders, we have reviewed the entire record

and have found no meritorious issues for appeal.                      We therefore

affirm Johnson’s conviction and sentence. This court requires that

counsel inform his client, in writing, of his 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


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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 adequately presented in the materials before the court and

argument would not aid the decisional process.



                                                          AFFIRMED




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