                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-20-2008

USA v. Johnson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2416




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"USA v. Johnson" (2008). 2008 Decisions. Paper 995.
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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 07-2416


                           UNITED STATES OF AMERICA

                                            v.

                                ROGER M. JOHNSON,
                                           Appellant


                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Crim. No. 06-00060)
                      Honorable Edwin M. Kosik, District Judge


                       Submitted under Third Circuit LAR 34.1(a)
                                    June 10, 2008

         BEFORE: AMBRO, CHAGARES, and GREENBERG, Circuit Judges

                                  (Filed: June 20, 2008)


                              OPINION OF THE COURT


                             GREENBERG, Circuit Judge.

      This matter comes on before this court on Roger M. Johnson’s appeal from a

judgment of conviction and sentence entered on May 3, 2007, on the basis of his plea of

guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a) and one count of
interference of interstate commerce by robbery in violation of 18 U.S.C. § 1951. Johnson

entered his guilty plea pursuant to a plea agreement with the Government. Johnson was a

career offender under U.S.S.G. § 4B1.1 and had a total offense level of 29, a combination

that resulted in a sentencing range of 151 to 188 months. The District Court imposed a

custodial 150-month term to be followed by a supervised release term. In view of the

circumstance that Johnson committed the federal offenses for which the court sentenced

him after escaping from the Northampton Pennsylvania County prison and while a

fugitive from the prison, the federal sentence was to be served consecutively to a state

term he was serving. The District Court had jurisdiction under 18 U.S.C. § 3231 and we

have jurisdiction under 28 U.S.C. § 1291.

       Johnson’s attorney has filed a motion pursuant to Anders v. California, 386 U.S.

738, 87 S.Ct. 1396 (1967), for leave to withdraw as counsel as he has been unable to

identify an issue of even arguable merit that he can raise on the appeal. The Government

agrees that Johnson “has not presented any non-frivolous issues for appeal.” Appellee’s

br. at 27. Thus, it does not oppose the Anders motion and urges that we affirm the

judgment of conviction and sentence. On August 1, 2007, our clerk advised Johnson of

the Anders motion and gave him an opportunity to file a brief in which he could raise any

points explaining why his “conviction and/or sentence should be overturned.” Johnson

has not filed such a brief or any brief at all.

       By reason of the Anders motion we have reviewed the record independently and



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can find no basis for granting Johnson relief on this appeal. In this review we, inter alia,

have examined the sentence for procedural errors in its imposition and for substantive

reasonableness. See Gall v. United States, 128 S.Ct. 586, 597 (2007). We also have

taken note of our comment in United States v. Cooper, 437 F.3d 324, 331 (3d Cir. 2006),

that a sentence within the guidelines range is “more likely to be reasonable than one that

lies outside the advisory guidelines range. . . .” Here, of course, the sentence was one

month below the bottom of the range, a variance or departure of which the Government

does not complain. Overall the sentence was completely reasonable and we cannot say

that the District Court abused its discretion in imposing it or made any other error

entitling Johnson to relief on this appeal.

       The judgment of conviction and sentence entered May 3, 2007, will be affirmed.




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