                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 06a0690n.06
                            Filed: September 14, 2006


                                          Case No. 05-4148

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                )
UNITED STATES OF AMERICA,                       )
                                                )
                Plaintiff-Appellee,             )       ON APPEAL FROM THE UNITED
                                                )       STATES DISTRICT COURT FOR
                                                )       THE NORTHERN DISTRICT OF
                v.                              )       OHIO
                                                )
                                                )
MICHAEL LEE JOHNSON,                            )
                                                )
                Defendant-Appellant.            )


BEFORE: MARTIN and GILMAN, Circuit Judges; SARGUS, District Judge.*


                SARGUS, District Judge. Michael Lee Johnson pled guilty to three counts of

armed bank robbery, 18 U.S.C. § 2113(a) and (d), and one count of using or carrying a firearm

during and in relation to a crime of violence, 18 U.S.C. § 924(c). On remand from this Court,

the district court sentenced Johnson to ninety-seven months of imprisonment on the bank

robbery charges and a consecutive sentence of eighty-four months of imprisonment on the

firearm charge, followed by ninety-six months of supervised release. Johnson now appeals his

sentence for failure to establish a factual basis for the firearm charge, ineffective assistance of

counsel, and for Booker judicial fact-finding errors.

        *
         The Honorable Edmund A. Sargus, Jr., United States District Judge for the Southern District of
Ohio, sitting by designation.
                                                 I.

               According to the facts within his plea agreement, Johnson planned and

participated in the robbery of a Firstar Bank in Cleveland, Ohio on October 25, 1999, and

received approximately $21,626 from the robbery. On December 10, 1999, Johnson planned

and participated in the robbery of a Key Bank in Cleveland. Johnson provided co-participant

Andre Harris with a .38 caliber handgun, which Harris brandished at the December 10, 1999,

robbery. This robbery yielded $9,309 to the three participants. Finally, on December 17,

Johnson planned and participated in the robbery of a Charter One Bank in Cleveland, in which

the three participants successfully stole $25,013. This time, Johnson provided Terrence

Williams with a .38 caliber handgun, which was brandished during the robbery.

               Johnson was charged, along with his two co-defendants, with three counts of

armed bank robbery and two counts of brandishing a firearm during those robberies. On

September 21, 2000, Johnson pled guilty to the three counts of bank robbery and one count of

brandishing a firearm, while the government dismissed the second count of brandishing based

on the written plea agreement between Johnson and the government. On December 8, 2000, the

district court calculated Johnson’s combined offense level as twenty-eight for the three bank

robberies. With a criminal history category of III, this resulted in a sentencing guidelines range

of 97-121 months. The gun charge carried with it a statutory minimum of eighty-four months in

prison. 18 U.S.C. § 924(c)(1)(A)(ii). As a result of these calculations, the district court

sentenced Johnson to ninety-seven months of imprisonment for the bank robberies and an

additional eighty-four months of imprisonment for the brandishing charge, followed by ninety-

six months of supervised release.


                                                -2-
               Johnson filed an untimely notice of appeal to this Court on July 20, 2001. On

September 20, 2001, this Court dismissed Johnson’s appeal for lack of jurisdiction. On

December 4, 2001, Johnson filed a motion in the district court to vacate, set aside, or correct his

sentence based on four grounds, including ineffective assistance of counsel for failure to file

notice of appeal. See 28 U.S.C. § 2255. The district court granted Johnson’s motion with

respect to his ineffective-assistance-of-counsel claim for failure to file notice of an appeal while

denying the remaining grounds on April 24, 2003. It then declined to issue a Certificate of

Appealability. Johnson filed an appeal to this Court on May 2, 2003, and this Court granted a

Certificate of Appealability on October 2, 2003.

               On June 27, 2005, this Court issued an unpublished decision holding that it again

lacked jurisdiction to hear Johnson’s appeal. Johnson v. United States, No. 03-3750, 2005 WL

1506050 (6th Cir. June 27, 2005) (unpublished). This Court held that the district court should

have, upon granting the motion, vacated the sentence imposed and resentenced Johnson on the

original conviction to restart the time for an appeal. Id. at *4 (citing Rosinski v. United States,

459 F.2d 59 (6th Cir. 1972) (per curiam). After this Court dismissed the appeal, the district

court complied with our instructions on August 22, 2005 and imposed an identical sentence as

that in Johnson’s original sentencing hearing.

               Johnson filed a timely notice of appeal to this Court on August 29, 2005.

                                                 II.

               On appeal, Johnson first contends that the district court violated Apprendi v. New

Jersey, 530 U.S. 466 (2000), by judicially finding that he had brandished a firearm, resulting in a

seven-year mandatory minimum sentence under 18 U.S.C. § 924(c). Johnson also asserts in this


                                                 -3-
same assignment of error that his trial counsel was constitutionally ineffective for permitting

him to plead guilty to a charge for which the necessary factual predicates had not been

established and to which Johnson had not admitted. In his second assignment of error, Johnson

alleges that the district court erred in assessing points in determining the sentencing guidelines

range based on the use of a firearm and the amount of funds stolen in the bank robberies.

               As to the first assignment of error, because Johnson failed to enter an objection

before the district court, we review for plain error. United States v. Sanders, 404 F.3d 980, 987

(6th Cir. 2005). With regard to his claim that the district court improperly calculated his

guidelines sentencing range, this Court determines whether the guideline range was correctly

determined, whether guideline departure issues were considered, and whether, after considering

18 U.S.C. § 3553(a), the sentence imposed was reasonable. United States v. McBride, 434 F.3d

470, 476 (6th Cir. 2006).

                                                III.

               The issues Johnson raises on appeal are foreclosed by the terms of the plea

agreement. The plea agreement, the validity of which is not challenged by Johnson, included a

non-binding recommendation to the district court that the combined offense level for Counts

One, Three and Five was twenty-eight. The plea agreement also recited that, pursuant to 18

U.S.C. § 924(c), the district court was required to impose an additional, consecutive sentence of

seven years, since Johnson was pleading guilty to brandishing a firearm in the course of a crime

of violence. The sentence imposed by the district court was in accord with the recommendations

set forth in the plea agreement.

               The plea agreement also contained the following provision:


                                                -4-
               16. The defendant, recognizing that in limited circumstances he
               could have the right to appeal the sentence imposed, hereby
               knowingly, voluntarily, and expressly waives the right to appeal
               his conviction and sentence on any ground, including any appeal
               right conferred by Title 18, United States Code, Section 3742,
               provided he is sentenced within the guideline range determined by
               the Court pursuant to the terms of this plea agreement and the
               Court does not depart upward.

The government contends that the waiver provision prevents review of the issues raised by

Johnson. We agree.

               This Court has repeatedly enforced provisions of plea agreements waiving a

defendant’s right to appeal, unless the sentence imposed exceeded the statutory maximum or the

sentence was imposed in violation of the Constitution. United States v. Caruthers, No. 05-5307,

– F.3d – , 2006 WL 2320942, (6th Cir. Aug. 11, 2006). In this case, the sentence imposed was

in accord with the recommendation made in the plea agreement by the parties to the district

court. Johnson is bound by his plea agreement, thereby barring further review.1

                                                 IV.

               Based upon the foregoing, we AFFIRM the decision of the district court.




       1
         We do note in passing that the same plea agreement induced the government to voluntarily
dismiss a second firearms charge under 18 U.S.C. § 924(c). Had he been convicted of this alleged
offense, Johnson would have received an additional, consecutive twenty-five year sentence.

                                                 -5-
