United States v. Michael Johnson

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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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