United States v. Donte Johnson

• Court: Court of Appeals for the Fourth Circuit
• Decided: February 2, 2023
• Docket: 16-4471
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 16-4471

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

DONTE MAURICE JOHNSON,

Defendant - Appellant.

Appeal from the United States District Court for the District of Maryland, at Baltimore. Ellen L. Hollander, Senior District Judge. (1:14-cr-00345-ELH-1)

Submitted: December 30, 2022 Decided: February 2, 2023

Before WILKINSON, NIEMEYER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.

ON BRIEF: William B. Purpura, LAW OFFICES OF WILLIAM B. PURPURA, Baltimore, Maryland, for Appellant. Christina Ann Hoffman, Jason Daniel Medinger, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

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PER CURIAM:

Donte Maurice Johnson pled guilty, pursuant to a plea agreement, to brandishing a

firearm in relation to a crime of violence, in violation of 18 U.S.C. §§ 2, 924(c), and Hobbs

Act robbery, in violation of 18 U.S.C. §§ 2, 1951(a). The district court sentenced Johnson

to 183 months’ imprisonment and imposed a five-year term of supervised release with

certain conditions. On appeal, Johnson’s counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), stating that there are no meritorious grounds for appeal

but questioning whether Johnson’s guilty plea was knowing and voluntary due to errors in

the plea agreement that were discovered at the Fed. R. Crim. P. 11 hearing. Johnson was

notified of his right to file a pro se supplemental brief, but he has not done so. The

Government has moved to dismiss the appeal based on the appellate waiver in Johnson’s

plea agreement. We deny the Government’s motion to dismiss, affirm Johnson’s

convictions, vacate his sentence, and remand for resentencing.

We review the validity of an appellate waiver de novo and “will enforce the waiver

if it is valid and the issue appealed is within the scope of the waiver.” United States v.

Adams, 814 F.3d 178, 182 (4th Cir. 2016). A waiver is valid if it is “knowing and

voluntary.” Id. Our review of the record reveals that Johnson’s appeal waiver is valid and

enforceable. See United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (stating that

generally, “if a district court questions a defendant regarding the waiver of appellate rights

during the [Federal Rule of Criminal Procedure] 11 colloquy and the record indicates that

the defendant understood the full significance of the waiver, the waiver is valid” (internal

quotation marks omitted)).

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But even a knowing and voluntary appellate waiver cannot bar a nonfrivolous

challenge to the validity of the defendant’s guilty plea. See id. at 364. Before accepting a

guilty plea, the district court must conduct a plea colloquy in which it informs the defendant

of, and determines that the defendant comprehends, the nature of the charge to which he is

pleading guilty, the minimum and maximum penalties he faces, and the rights he is

relinquishing by pleading guilty. Fed. R. Crim. P. 11(b)(1). The court must also ensure

that the plea was voluntary and not the result of threats, force, or promises outside of those

in the plea agreement, Fed. R. Crim. P. 11(b)(2), and that a sufficient factual basis supports

the plea, Fed. R. Crim. P. 11(b)(3).

Our review of the Rule 11 colloquy did not reveal any errors affecting Johnson’s

substantial rights. Although errors in the plea agreement created confusion during the plea

hearing, the district court clearly explained the errors and their consequences to Johnson,

and Johnson indicated that he understood. See United States v. Foster, 68 F.3d 86, 88

(4th Cir. 1995) (stating that, where “information given by the court at the Rule 11 hearing

corrects or clarifies the earlier erroneous information given by the defendant’s attorney and

the defendant admits to understanding the court’s advice, the criminal justice system must

be able to rely on the subsequent dialogue between the court and defendant” (internal

quotation marks omitted)). Additionally, Johnson ultimately pleaded guilty to a less

serious offense than that included in the original plea agreement. See United States v.

Akinsade, 686 F.3d 248, 254 (4th Cir. 2012) (stating that the determination of whether a

defendant was prejudiced by an error includes consideration of whether “the consequences

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at stake are particularly severe” (internal quotation marks omitted)). We therefore

conclude that Johnson’s plea was knowing and voluntary.

However, our review pursuant to Anders revealed a meritorious issue that falls

outside the scope of Johnson’s appellate waiver. “[I]n order to sentence a defendant to a

non-mandatory condition of supervised release, the sentencing court must include that

condition in its oral pronouncement of a defendant’s sentence in open court.” United

States v. Singletary, 984 F.3d 341, 345 (4th Cir. 2021) (citing United States v. Rogers, 961

F.3d 291, 296 (4th Cir. 2020)). This directive applies to “any set of discretionary

conditions—even those categorized as ‘standard’ by the [Sentencing] Guidelines.” Rogers,

961 F.3d at 297-98. After reviewing the record, we conclude that the district court—which

did not have the benefit of these decisions when it sentenced Johnson—did not comply

with this directive with respect to non-mandatory conditions of supervision appearing in

the judgment. Thus, Johnson was not sentenced to those conditions, and a remand for

resentencing is required. See Singletary, 984 F.3d at 344, 346-47.

In accordance with Anders, we have reviewed the entire record and have found no

other meritorious grounds for appeal. Accordingly, we deny the Government’s motion to

dismiss, affirm Johnson’s convictions, vacate his sentence, and remand for resentencing.

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 representation. Counsel’s motion must state

that a copy thereof was served on Johnson.

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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 IN PART, VACATED IN PART, AND REMANDED