09-3917-cr (L)
United States v. Johnson

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1.1 AND
FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


        At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 6th day of July, two thousand eleven,

Present:    PIERRE N. LEVAL,
            ROSEMARY S. POOLER,
                        Circuit Judges.
            DENISE COTE,*
                        District Judge.
_____________________________________________________

UNITED STATES OF AMERICA,
                                             Appellee,

                           -v-                              09-3917-cr(L), 09-4057-cr (con),
                                                            09-4536-cr (con), 09-5001-cr (con)

MATTHEW F. JOHNSON, MONAE DAVIS,

                                             Defendants-Appellants,

RAHEIM HOWELL, BARRETT B. JOHNSON,

                                             Defendants.




         *
       The Honorable Denise Cote, United States District Court for the Southern District of
New York, sitting by designation.
Appearing for Appellee:        Stephen J. Baczynski, Assistant United States Attorney, Western
                               District of New York (William J. Hochul, Jr., United States
                               Attorney, on the brief), Buffalo, N.Y.

Appearing for Appellants:      Robert A. Liebers, Burgett & Robbins, Jamestown, N.Y. for
                               Defendant-Appellant Matthew F. Johnson.
                               Robin C. Smith, Law Office of Robin C. Smith, Brooklyn, N.Y.,
                               for Defendant-Appellant Monae Davis.

       Appeal from the United States District Court for the Western District of New York
(Skretny, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Matthew F. Johnson appeals from the September 11, 2009 judgment of the United States
District Court for the Western District of New York (Skretny, J.) convicting him of conspiracy to
possess with intent to distribute, and to distribute, 50 grams or more of cocaine base in violation
of 21 U.S.C. § 846 and sentencing him principally to 87 months’ imprisonment. On appeal,
Johnson argues the district court erred in failing to impose a shorter sentence.

        Monae Davis appeals from the September 8, 2009 judgment of the United States District
Court for the Western District of New York (Skretny, J.) convicting him of conspiracy to possess
with intent to distribute, and to distribute, 50 grams or more of cocaine base in violation of 21
U.S.C. § 846 and sentencing him principally to 20 years’ imprisonment. While Davis’ notice of
appeal appears to be untimely filed, the government waives enforcement of Fed. R. App. P. 4(b).

Robin C. Smith, Davis’s attorney, filed a motion to be relieved from representing Davis pursuant
to Anders v. California, 386 U.S. 738 (1967), and the Government moved for summary
affirmance. Davis filed a pro se response, arguing (1) his guilty plea was invalid due to
ineffective assistance of counsel; (2) his guilty plea is invalid because the district court failed to
ensure the voluntariness of his plea; and (3) his indictment was “constructively amended,”
rendering it invalid. We assume the parties’ familiarity with the underlying facts, procedural
history, and specification of issues for review.

        Johnson’s plea agreement contemplated a sentencing range of 120 to 135 months.
Pursuant to the agreement, Johnson received a two-level departure for providing assistance to the
government. Johnson’s presentence report calculated a total offense level of 29 and a criminal
history category of III, which after accounting for the mandatory minimum yielded a range of
120 to 135 months. With the two-level departure, the range dropped to 87 to 108 months.
Johnson moved for a non-guidelines sentence, in part based on the sentencing disparities
between powder and crack cocaine. Johnson was sentenced to 87 months.

       In his plea agreement, Johnson waived “the right to appeal and collaterally attack any
component of a sentence imposed by the Court which falls within or is less than the sentencing
range for imprisonment.” “The right to appeal may be waived as part of a plea agreement, and
we have stated that a knowing and voluntary waiver of the right to appeal a sentence within a
particular Guidelines range is generally enforceable.” United States v. Chen, 127 F.3d 286, 289
(2d Cir. 1997) (internal citations omitted); see also United States v. Fisher, 232 F.3d 301, 303
(2d Cir. 2000). Johnson was sentenced within the appropriate Guidelines range, barring his
appeal.

         Davis’ plea agreement contemplated a sentencing range of 262 to 327 months, although
the presentence report later calculated a total offense level of 37 and a criminal history category
of II, yielding a guidelines range of between 240 and 293 months. Davis waived his right to
appeal any sentence of imprisonment that fell within or below the estimated range. Davis was
sentenced to 240 months.

        Where, as here, a defendant challenges the validity of his guilty plea for the first time on
appeal, we review for plain error. United States v. Dominguez Benitez, 542 U.S. 74, 80-84
(2004). Fed. R. Crim. P. 11 requires the court to “assure itself . . . that the conduct to which the
defendant admits is in fact an offense under the statutory provision under which he is pleading
guilty.” United States v. Maher, 108 F.3d 1513, 1524 (2d Cir. 1997). “A variance from the
requirements of this rule is harmless error if it does not affect substantial rights.” Fed. R. Crim.
P. 11(h). To demonstrate that a Rule 11 error affected his substantial rights, a defendant must
show “a reasonable probability that, but for the error, he would not have entered the plea”
considering “any record evidence tending to show that a misunderstanding was inconsequential
to a defendant’s decision” to plead guilty, as well as the “overall strength of the Government’s
case.” Dominguez Benitez, 542 U.S. at 83-85.

         Reviewing the record before us, we conclude that the district court failed to advise Davis
of (1) his right to compel witnesses; (2) his right to plead not guilty; (3) his right to counsel at
every stage of the proceeding; (4) the court’s authority to order restitution; or (5) the court’s
obligation to consider the Guidelines range, possible Guidelines departures, and the sentencing
factors enumerated in 18 U.S.C. § 3553(a). See Fed. R. Crim. P. 11(b)(1)(B), (D), (E), (K), (M).
However, Davis failed to demonstrate that the district court’s errors affected substantial rights.
During his plea allocution, among other items, the district court did make sure Davis had a copy
of the indictment, and informed Davis that he was pleading guilty to “Count [One] of the
indictment, and that's the conspiracy charge with respect to the distribution of 50 grams or more
of cocaine base, crack cocaine,” and inquired whether he “underst[ood] that charge.” The court
ensured that Davis had discussed his plea agreement with counsel, that all of his questions had
been answered, and that he was “comfortable with [his] understanding of the documents in this
case.” The district court asked Davis to review the indictment, asked Davis if he had any
questions, and told him that Count One of the indictment charged that, from June 2005 to
October 2007, he conspired with others to possess with intent to distribute, and to distribute,
cocaine base. The district court reviewed the plea agreement, including the sentencing
provisions and appeal waiver, with Davis. The district court established that Davis was aware
of his rights to: (1) a jury trial; (2) an attorney, and to have court-appointed counsel if he could
not afford representation; (3) be presumed innocent at trial and have the Government prove his
guilt beyond a reasonable doubt; (4) “question” witnesses during trial; (5) present evidence at
trial; (6) testify; and (7) not testify and be protected from self-incrimination. Based on our

                                                  3
review of the record, we find no reason to believe that Davis failed to understand the charges or
the plea agreement, or that he would not have entered the plea or made the agreement but for the
court’s omissions. We find no reason not to enforce his waiver of appeal.

       According, it is hereby ordered that (1) the judgment of the district court convicting and
sentencing Matthew F. Johnson is AFFIRMED; (2) Robin Smith’s Anders motion is
GRANTED; and (3) the government’s motion for summary affirmance of the conviction and
sentence of Monae Davis is GRANTED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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