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United States v. Donald Johnson, Sr., 11-4952 (2012)

Court: Court of Appeals for the Fourth Circuit Number: 11-4952 Visitors: 30
Filed: Apr. 30, 2012
Latest Update: Mar. 26, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-4952 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DONALD JOHNSON, SR., Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Thomas David Schroeder, District Judge. (1:11-cr-00017-TDS-1) Submitted: April 24, 2012 Decided: April 30, 2012 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam o
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                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 11-4952


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DONALD JOHNSON, SR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro.       Thomas David
Schroeder, District Judge. (1:11-cr-00017-TDS-1)


Submitted:   April 24, 2012                 Decided:   April 30, 2012


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Louis C. Allen, Federal Public Defender, John A. Dusenbury, Jr.,
Assistant Federal Public Defender, Greensboro, North Carolina,
for Appellant.     Lisa Blue Boggs, Assistant United States
Attorney, Greensboro, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Donald Johnson, Sr., appeals his conviction and fifty-

seven month sentence after pleading guilty to one count of bank

robbery, in violation of 18 U.S.C. § 2113(a) (2006).                           Counsel

for Johnson filed a brief pursuant to Anders v. California, 
386 U.S. 738
 (1967), stating that there are no meritorious issues

for   appeal,    but     questioning      the    reasonableness         of   Johnson’s

sentence.     Johnson was informed of his right to file a pro se

supplemental brief, but has not done so.                        The Government has

chosen not to file a brief.          We affirm.

            This       court      reviews         Johnson’s          sentence         for

reasonableness,        applying      the       abuse-of-discretion           standard.

Gall v. United States, 
552 U.S. 38
, 51 (2007).                          This 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          Johnson’s       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   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

reviews the substantive reasonableness of the sentence.                             Lynn,

                                           2
592 F.3d at 575; United States v. Pauley, 
511 F.3d 468
, 473 (4th

Cir. 2007).

             After    thoroughly    reviewing     the    record,     we    conclude

that Johnson’s guilty plea was knowing and voluntary and that

the district court complied with Rule 11 in accepting the plea.

We   therefore      affirm   Johnson’s    conviction.        As   for     Johnson’s

sentence,      we     conclude    that    the    district     court       correctly

calculated     the    Sentencing    Guidelines     range    and     appropriately

applied      the     § 3553(a)     factors.        The     sentence       is   thus

procedurally reasonable.           Further, we conclude that Johnson’s

within-Guidelines       sentence    is   substantively       reasonable.        See

United States v. Allen, 
491 F.3d 178
, 193 (4th Cir. 2007) (a

sentence     within    the   applicable      Guidelines     range    is    presumed

reasonable on appeal).           Counsel’s assertions are not sufficient

to   rebut    this     presumption.       We    therefore    affirm       Johnson’s

sentence.

             In accordance with Anders, we have reviewed the entire

record in this case and have found no meritorious issues for

appeal.      We thus affirm Johnson’s conviction and sentence.                 This

court requires that counsel inform Johnson, in writing, of the

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,

then counsel may move in this court for leave to withdraw from

                                         3
representation.    Counsel’s motion must state that a copy thereof

was served on Johnson.

            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




                                    4

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