UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4849
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JERMAINE RUSSELL JOHNSON, a/k/a J,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:09-cr-00085-JPB-DJJ-1)
Submitted: April 21, 2011 Decided: April 26, 2011
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Dismissed by unpublished per curiam opinion.
Christopher L. Prezioso, LUTTRELL & PREZIOSO PLLC, Martinsburg,
West Virginia, for Appellant. William J. Ihlenfeld, II, United
States Attorney, Paul T. Camilletti, Assistant United States
Attorney, Martinsburg, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Jermaine Russell Johnson pled guilty to possession
with intent to distribute cocaine base, and the district court
sentenced him to 135 months’ imprisonment. On appeal, Johnson
challenges the firearm enhancement used to calculate his
Guidelines range. The Government asserts that Johnson waived
the right to challenge his sentence in his plea agreement. We
agree with the Government’s position and dismiss Johnson’s
appeal.
It is well-settled that “a defendant may waive in a
valid plea agreement the right of appeal under 18 U.S.C. § 3742
[2006].” United States v. Wiggins, 905 F.2d 51, 53 (4th Cir.
1990). “Whether a defendant has effectively waived the right to
appeal is an issue of law that [this court] review[s] de novo.”
United States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). In
undertaking that review, we will enforce an appellate waiver
where such a waiver “is knowing and intelligent and the issue
sought to be appealed falls within the scope of the appeal
waiver.” United States v. Poindexter, 492 F.3d 263, 270 (4th
Cir. 2007).
Johnson asserts that his plea was not knowing and
voluntary because he could not have foreseen the future
erroneous application of the firearm enhancement. Only a
“narrow class of claims involves errors that the defendant could
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not have reasonably contemplated when the plea agreement was
executed.” Id. (internal quotation marks omitted). For
example, claims that proceedings following the guilty plea were
conducted in violation of the defendant’s Sixth Amendment right
to counsel, United States v. Attar, 38 F.3d 727, 732-33 (4th
Cir. 1994), or that a sentence was imposed in excess of the
statutory maximum penalty “or based on a constitutionally
impermissible factor such as race,” United States v. Marin, 961
F.2d 493, 496 (4th Cir. 1992), fall within the narrow category
of claims excluded from an appellate waiver.
Johnson’s claim that the district court erred in
imposing his sentence does not rise to the level of a
“reasonably unforeseeable” constitutional violation, but rather
constitutes a routine challenge to the procedural reasonableness
of his sentence. See United States v. Brown, 232 F.3d 399, 405
(4th Cir. 2000) (nothing that, if an express appeal waiver does
not preclude a challenge that a sentence is illegal or improper,
the covenant not to appeal becomes meaningless). Therefore,
this claim falls squarely within the scope of the appellate
waiver, and Johnson’s failure to foresee the possibility of an
enhancement does not invalidate his waiver. Accordingly, we
dismiss Johnson’s appeal. We dispense with oral argument
because the facts and legal contentions are adequately presented
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in the materials before the court and argument would not aid the
decisional process.
DISMISSED
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