Filed: Mar. 26, 2014
Latest Update: Mar. 02, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4593 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VIRGIL LAMONTE JOHNSON, a/k/a Ghetto, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:12-cr-00850-CMC-3) Submitted: January 31, 2014 Decided: March 26, 2014 Before KEENAN, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Jos
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-4593 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. VIRGIL LAMONTE JOHNSON, a/k/a Ghetto, Defendant - Appellant. Appeal from the United States District Court for the District of South Carolina, at Columbia. Cameron McGowan Currie, Senior District Judge. (3:12-cr-00850-CMC-3) Submitted: January 31, 2014 Decided: March 26, 2014 Before KEENAN, DIAZ, and FLOYD, Circuit Judges. Affirmed by unpublished per curiam opinion. Josh..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4593
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VIRGIL LAMONTE JOHNSON, a/k/a Ghetto,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Columbia. Cameron McGowan Currie, Senior
District Judge. (3:12-cr-00850-CMC-3)
Submitted: January 31, 2014 Decided: March 26, 2014
Before KEENAN, DIAZ, and FLOYD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Joshua Snow Kendrick, KENDRICK & LEONARD, P.C., Greenville,
South Carolina, for Appellant. William Kenneth Witherspoon,
Assistant United States Attorney, Columbia, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Virgil Lamonte Johnson was convicted of: conspiracy to
possess with intent to distribute cocaine, 21 U.S.C.
§§ 841(a)(1), 846 (2012) (Count One); conspiracy to commit Hobbs
Act robbery, 18 U.S.C. § 1951(a) (2012) (Count Two); conspiracy
to use or carry a firearm during and in relation to a drug
trafficking crime or crime of violence, 18 U.S.C. § 924(o)
(2012) (Count Three); using or carrying a firearm during and in
relation to a drug trafficking crime or crime of violence, 18
U.S.C. § 924(c)(1)(A) (2012) (Count Four); and possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (2012)
(Count Seven). Johnson received an aggregate sentence of 270
months in prison.
Johnson now appeals. His attorney has filed a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), raising
two issues but stating that there are no meritorious issues for
appeal. Johnson has filed a pro se brief raising additional
issues. Finding no error, we affirm.
I
Johnson first questions whether the evidence was
sufficient to convict him on all counts. We review de novo the
sufficiency of the evidence supporting a conviction. United
States v. McLean, 715 F.3d 129, 137 (4th Cir. 2013). In
assessing evidentiary sufficiency, we must determine whether,
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viewing the evidence in the light most favorable to the
Government and accepting the factfinder’s determinations of
credibility, the verdict is supported by substantial evidence—
that is, “evidence that a reasonable finder of fact could accept
as adequate and sufficient to support a conclusion of a
defendant’s guilt beyond a reasonable doubt.” United States v.
King, 628 F.3d 693, 700 (4th Cir. 2011) (internal quotation
marks omitted).
The evidence presented at trial established that
undercover officers approached Tarren Hughey, claiming to need
someone to stage a home invasion and robbery of a “stash house”
operated by Colombian drug dealers. The undercover officers
told Hughey that there might be between ten and fifteen
kilograms of cocaine in the house. Hughey recruited Johnson and
Andre Brice to assist in the invasion.
Johnson and Hughey discussed plans for the robbery on
several occasions. Additionally, Johnson met with the
undercover officers, Hughey, Brice, and a confidential informant
at a restaurant on October 12, 2012, to discuss the impending
operation. Following that meeting, Johnson returned with Hughey
to Hughey’s home, where they reviewed their plans. Among other
things, Johnson was to enter the house and restrain the
occupants with duct tape.
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On October 16, 2012, the day of the planned robbery,
Johnson, Brice, and Hughey met at Hughey’s apartment, where
Johnson selected a handgun to carry during the robbery. The men
learned that the confidential informant, who was supposed to be
their driver, had been arrested. Accordingly, they decided that
Brice would serve as the driver, that Hughey and Johnson would
enter the stash house, and that Johnson would secure the
occupants with duct tape.
Before the robbery, Johnson, Hughey, and Brice stopped
and purchased gloves to wear during the robbery. Next, they
arrived at a parking lot, where they had planned to meet two
undercover officers. Johnson, who was armed with the handgun
described above, reminded one officer to be certain the door of
the stash house was left open. The five men then drove to a
storage facility, where Johnson, Hughey, and Brice thought they
were going to pick up a vehicle that they were to use during the
home invasion. At the storage facility, they were arrested.
During a search incident to their arrests, officers recovered
five handguns, three bulletproof vests and ammunition.
Additionally, officers recovered from Johnson’s person gloves
and duct tape.
In light of this testimony, we conclude that the
evidence was sufficient to convict Johnson on Counts One, Two,
Three, and Four. We further hold that the evidence was
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sufficient to convict him on Count Seven, because the evidence
established that Johnson voluntarily possessed a firearm.
Further, a stipulation was entered at trial stating that Johnson
was a convicted felon and that all the firearms and ammunition
involved in the case had been shipped or transported in
interstate commerce. See United States v. Gallimore, 247 F.3d
134, 136 (4th Cir. 2001) (setting forth elements of offense).
II
Johnson also contends that the district court erred by
permitting the Government to cross-examine him using information
he provided pursuant to a written “proffer agreement.” The
proffer agreement stated that the Government’s obligations under
the agreement would become null and void if Johnson were
untruthful and that, in case of Johnson’s untruthfulness, the
Government could use any statements Johnson had provided “for
any purpose.” Johnson’s trial testimony varied in significant
ways from his proffer statement. Given the express terms of the
proffer agreement, which operates like a contract, see United
States v. Gillion, 704 F.3d 284, 292 (4th Cir. 2012), we
conclude that the district court properly permitted use of
Johnson’s statement during cross-examination.
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III
In his supplemental brief, Johnson raises several
issues. We have reviewed these issues and conclude that none
has merit. First, because ineffective assistance of counsel
does not conclusively appear on the face of the record, it is
inappropriate to address Johnson’s claim of ineffectiveness on
direct appeal. See United States v. Benton, 523 F.3d 424, 435
(4th Cir. 2008). Second, because the evidence did not
demonstrate Johnson’s “lack of predisposition to engage in the
criminal conduct,” see United States v. Ramos,
462 F.3d 329, 334
(4th Cir. 2006), but instead established his willingness to
commit the offenses, the Court’s failure to give an entrapment
instruction was not error. Finally, we find no merit to
Johnson’s claim of a violation of Apprendi v. New Jersey,
530
U.S. 466 (2000).
IV
We have reviewed the entire record in this case in
accordance with Anders and have found no meritorious issues for
appeal. Accordingly, we affirm. 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, then counsel may move
in this Court for leave to withdraw from representation.
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Counsel’s motion must state that a copy of the motion was served
on Johnson.
We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before this Court and argument would not aid the decisional
process.
AFFIRMED
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