UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-5103
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL RAY JOHNSON,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Elizabeth City. Malcolm J.
Howard, Senior District Judge. (2:10-cr-00047-H-1)
Submitted: July 13, 2012 Decided: August 3, 2012
Before NIEMEYER and MOTZ, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mary J. Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North
Carolina, for Appellant. Jenifer P. May-Parker, Assistant
United States Attorney, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Ray Johnson appeals his convictions for
possession of a firearm by a convicted felon, in violation of 18
U.S.C. §§ 922(g), 924 (2006), and distribution of cocaine, in
violation of 21 U.S.C. § 841 (2006), and his 180-month sentence.
Johnson’s counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting that there are no
meritorious issues for appeal. Johnson filed a pro se
supplemental brief, arguing that his procedural due process
rights were violated because the magistrate judge did not sua
sponte order an evaluation of his mental competency and that his
counsel was ineffective. The Government declined to file a
brief. We affirm.
Because Johnson did not move to withdraw his guilty
plea, the Rule 11 plea colloquy is reviewed for plain
error. United States v. Martinez, 277 F.3d 517 (4th Cir. 2002).
The magistrate judge * substantially complied with Fed. R. Crim.
P. 11 and did not violate Johnson’s substantial rights in
accepting his plea. We further conclude, after a thorough
review of the record, that Johnson’s plea was knowing and
voluntary. Although Johnson suggests that the magistrate judge
*
Johnson consented to the jurisdiction of the magistrate
judge.
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should have sua sponte ordered a mental competency evaluation,
we reject this contention. The test for mental competence is
whether the defendant “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational
understanding — and whether he has a rational as well as factual
understanding of the proceedings against him.” Dusky v. United
States, 362 U.S. 402, 402 (1960) (punctuation omitted). “[T]he
defendant must establish that the trial court ignored facts
raising a ‘bona fide doubt’ regarding the defendant’s competency
to stand trial.” Walton v. Angelone, 321 F.3d 442, 459 (4th
Cir. 2003). We conclude that the magistrate judge did not
ignore facts raising a doubt as to Johnson’s competency and,
further, that Johnson had a reasonable degree of rational
understanding of the proceedings.
Johnson’s sentence is reviewed for reasonableness,
applying the abuse-of-discretion standard. Gall v. United
States, 552 U.S. 38, 51 (2007). This review requires
consideration of both the procedural and substantive
reasonableness of the sentence. Id.; United States v. Lynn, 592
F.3d 572, 575 (4th Cir. 2010). After determining whether the
district court correctly calculated the advisory Guidelines
range, this court must decide whether the court considered the
18 U.S.C. § 3553(a) (2006) factors, analyzed the arguments
presented by the parties, and sufficiently explained the
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selected sentence. Lynn, 592 F.3d at 575-76; United States v.
Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is
free of significant procedural error, this court will review the
substantive reasonableness of the sentence. Lynn, 592 F.3d at
575; United States v. Pauley, 511 F.3d 468, 473 (4th Cir. 2007).
We conclude that the district court’s imposition of the
mandatory minimum sentence was both procedurally and
substantively reasonable.
Johnson suggests that the convictions used to
designate him as an armed career criminal do not satisfy the
requirements for such designation under 18 U.S.C. § 924(e)
(2006). A defendant is properly designated an armed career
criminal if he is subject to an enhanced sentence under 18
U.S.C. § 924(e). USSG § 4B1.4(a) (2011). The enhanced sentence
applies to a defendant who violates 18 U.S.C. § 922(g) and has
“three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different
from one another.” 18 U.S.C. § 924(e)(1). The term “serious
drug offense” includes a state law offense involving the
manufacturing or possessing with intent to manufacture or
deliver any controlled substance, so long as the maximum term of
imprisonment was at least ten years. 18 U.S.C.
§ 924(e)(2)(A)(ii). Johnson’s three prior North Carolina drug
convictions qualify as “serious drug offenses” under § 924
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because, at the time of the convictions, each offense was
punishable by a maximum of ten years’ imprisonment. Johnson’s
argument is thus without merit.
Johnson also argues that his counsel was ineffective.
Claims of ineffective assistance of counsel are not cognizable
on direct appeal unless the record conclusively establishes that
counsel provided ineffective assistance. United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006); see also United
States v. King, 119 F.3d 290, 295 (4th Cir. 1997) (“[I]t is well
settled that a claim of ineffective assistance should be raised
in a 28 U.S.C. § 2255 motion in the district court rather than
on direct appeal, unless the record conclusively shows
ineffective assistance.”) (internal quotation marks omitted).
The record on appeal does not conclusively establish
ineffectiveness. We thus do not consider this argument.
In accordance with Anders, we have reviewed the record
and found no meritorious issues for appeal. We therefore affirm
Johnson’s convictions and sentence. This court requires that
counsel inform Johnson, in writing, of his 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, 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
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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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