                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 31 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 12-10633

              Plaintiff - Appellee,              D.C. No. 4:11-cr-04235-CKJ-
                                                 BPV-1
  v.

JAMES RAYBURN JOHNSON,                           MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                      Argued and Submitted January 15, 2014
                            San Francisco, California

Before: BYBEE and BEA, Circuit Judges, and RESTANI, Judge.**

       James Johnson (“Johnson”) appeals the district court’s denial of his motion

to withdraw his guilty plea entered pursuant to a plea agreement in which he

admitted to tampering with a victim in violation of 18 U.S.C. § 1512(a)(2)(C).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.
Johnson claims the indictment and his plea colloquy were deficient and that he is

“legally innocent.” Despite the appeal waiver in Johnson’s plea agreement, we

retain jurisdiction, see United States v. Jacobo Castillo, 496 F.3d 947, 954–57 (9th

Cir. 2007) (en banc), and we review preserved challenges to the adequacy of a plea

colloquy de novo. United States v. Pacheco-Navarette, 432 F.3d 967, 969 (9th Cir.

2005). Here, Johnson has not preserved his challenge to the adequacy of the plea

colloquy or the indictment, and his objection is not timely. We review Johnson’s

untimely objection under the plain error test of Federal Rule of Criminal Procedure

52(b). United States v. Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002); see

also United States v. Cotton, 535 U.S. 625, 630–32 (2002).

      Under 18 U.S.C. § 1512(a)(2)(C), the government must prove that the

defendant “use[d] physical force or the threat of physical force against any

person . . . with intent to . . . hinder, delay, or prevent the communication to a law

enforcement officer or judge of the United States of information relating to the

commission or possible commission of a Federal offense.” Analyzing a federal

statute that prohibits killing any person “with intent to . . . prevent the

communication . . . to a law enforcement officer or judge of the United States of

information relating to the commission or possible commission of a Federal

offense,” 18 U.S.C. § 1512(a)(1)(C), the Supreme Court required the government


                                            2
to show “that there was a reasonable likelihood that a relevant communication

would have been made to a federal officer,” as opposed to a state law enforcement

officer. Fowler v. United States, 131 S. Ct. 2045, 2048 (2011).

      Johnson’s indictment failed to allege explicitly that a federal law

enforcement officer, as opposed to a state law enforcement officer, likely would

have been contacted by the victim. The indictment included, however, a citation to

the relevant statute, which should have put Johnson on notice of this element of the

offense. Because Johnson raised his challenge to the indictment for the first time

post-conviction, “‘[t]he only issue . . . is whether the indictment, by reference to

[the statute],’ alleged sufficient information to cure the deficiency.” United States

v. James, 980 F.2d 1314, 1318 (9th Cir. 1992) (second and third alterations in

original) (quoting United States v. Coleman, 656 F.2d 509, 511 (9th Cir. 1981)).

We are satisfied that any deficiency was cured by the statutory citation here, as the

statute clearly sets out the element at issue.

      Additionally, even if the plea colloquy were deficient by failing to ensure

that a sufficient factual basis supported this element of the charged offense, as

required by United States v. Villalobos, 333 F.3d 1070, 1073–74 (9th Cir. 2003),

Johnson was not prejudiced by any error. Johnson conceded at oral argument that

the alleged underlying assault by Johnson, a non-Indian, on the victim, an Indian,


                                            3
is subject to exclusive federal jurisdiction pursuant to 18 U.S.C. § 1152. As a

result, there is at least a reasonable likelihood that but for Johnson’s use of force,

the victim’s attempt to contact law enforcement in this case would have resulted in

referral to federal authorities for investigation and possible prosecution; in fact,

such a referral later occurred, resulting in Johnson’s prosecution. Johnson’s

apparent contention that the victim must contact a federal law enforcement officer

directly finds no support in Fowler.

      We also find Johnson’s other claims regarding irregularities at the plea

hearing to be meritless. The district court properly denied Johnson’s motion to

withdraw his guilty plea based on unspecified evidence that he was innocent.

Similarly, Johnson’s claim below that he did not understand the range of possible

sentences under the plea agreement is contradicted by the plain language of the

agreement and the transcript of the plea colloquy. Turning to Johnson’s new

arguments on appeal, the record demonstrates that Johnson was not prevented by

the magistrate judge from withdrawing his plea at the end of the change of plea

hearing. The record also shows that Johnson was aware of his right to counsel and

was represented at all times.

      AFFIRMED.




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