Filed: Apr. 28, 2016
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4553 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL DONDREKUS JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:11-cr-02354-HMH-1) Submitted: March 30, 2016 Decided: April 28, 2016 Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-4553 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DANIEL DONDREKUS JOHNSON, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Anderson. Henry M. Herlong, Jr., Senior District Judge. (8:11-cr-02354-HMH-1) Submitted: March 30, 2016 Decided: April 28, 2016 Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per c..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-4553
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DANIEL DONDREKUS JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Anderson. Henry M. Herlong, Jr., Senior
District Judge. (8:11-cr-02354-HMH-1)
Submitted: March 30, 2016 Decided: April 28, 2016
Before WILKINSON and GREGORY, Circuit Judges, and HAMILTON,
Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Benjamin T. Stepp, Assistant Federal Public Defender,
Greenville, South Carolina, for Appellant. Maxwell B. Cauthen,
III, Assistant United States Attorney, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel Dondrekus Johnson appeals the district court’s
judgment revoking his supervised release and sentencing him to
two years in prison. Johnson’s attorney has filed a brief under
Anders v. California, 386 U.S. 738 (1967), asserting there are
no meritorious grounds for appeal but raising the issue of
whether the district court procedurally erred in sentencing him
to 24 months in prison. Johnson has filed a pro se supplemental
brief raising the issues of whether his counsel was ineffective
and whether the district court erred in finding that he
committed new criminal conduct in beating his ex-girlfriend and
that he lied about it at his revocation hearing. We affirm.
We review a district court’s judgment revoking supervised
release and imposing a term of imprisonment for abuse of
discretion. United States v. Copley, 978 F.2d 829, 831 (4th
Cir. 1992). We review the district court’s factual findings
underlying a revocation for clear error. United States v.
Padgett,
788 F.3d 370, 373 (4th Cir.), cert. denied,
136 S. Ct.
494 (2015). To revoke supervised release, a district court need
only find a violation of supervised release by a preponderance
of the evidence. 18 U.S.C. § 3583(e)(3) (2012). This standard
“simply requires the trier of fact to believe that the existence
of a fact is more probable than its nonexistence.” United
2
States v. Manigan, 592 F.3d 621, 631 (4th Cir. 2010) (citation
and internal quotation marks omitted).
We will not disturb a district court’s revocation sentence
unless it falls outside the statutory maximum or is otherwise
“plainly unreasonable.” Padgett, 788 F.3d at 373 (citation
omitted). The district court retains broad discretion to impose
a term of imprisonment up to the statutory maximum.
Id.
(citations and quotation marks omitted).
Only if the revocation sentence is unreasonable must we
assess whether it is plainly so. Id. (citation omitted). In
determining whether a revocation sentence is unreasonable, we
are informed by the same procedural and substantive
considerations that guide our review of original sentences but
we strike a more deferential appellate posture.
Id. (citations
and quotation marks omitted). While the district court must
explain its sentence, it “need not be as detailed or specific
when imposing a revocation sentence as it must be when imposing
a post-conviction sentence.” United States v. Thompson,
595
F.3d 544, 547 (4th Cir. 2010).
“It is well established that a defendant may raise [a]
claim of ineffective assistance of counsel in the first instance
on direct appeal if and only if it conclusively appears from the
record that . . . counsel did not provide effective assistance.”
United States v. Galloway, 749 F.3d 238, 241 (4th Cir. 2014)
3
(citation and internal quotation marks omitted). “Otherwise,
[he] must raise [his] claim in the district court by a
collateral challenge pursuant to 28 U.S.C. § 2255.” Id.
We have reviewed the record and conclude that the district
court did not clearly err in finding that Johnson committed new
criminal conduct in beating his ex-girlfriend and that he lied
about it at his revocation hearing. We further conclude his
sentence is reasonable, and the district court did not abuse its
discretion in revoking his supervised release and sentencing him
to the statutory maximum. Finally, we conclude the record does
not conclusively show ineffective assistance, and Johnson’s
claim should be raised, if at all, in a 28 U.S.C. § 2255 motion.
In accordance with Anders, we have reviewed the record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform his or her client, in writing, of
his or her 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 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
4
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
5
