Conference Calendar UNITED STATES OF AMERICA v. Tony Lee Johnson

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-10298
Conference Calendar
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
TONY LEE JOHNSON
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:06-CR-79-ALL
Before REAVLEY, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
Tony Lee Johnson appeals the 235-month sentence imposed following his
guilty-plea conviction for possession with intent to distribute cocaine base. He
argues that the district court plainly erred by ordering that his sentence be
served consecutively to state court sentences that had not yet been imposed, but
he concedes that the issue is foreclosed by United States v. Brown, 920 F.2d
1212, 1216-17 (5th Cir. 1991), abrogated on other grounds, United States v.
Candia, 454 F.3d 468, 472-73 (5th Cir. 2006). The Government seeks to enforce
United States Court of Appeals
Fifth Circuit
F I L E D
December 11, 2007
Charles R. Fulbruge III
Clerk

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No. 07-10298
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the appeal waiver provision in Johnson’s plea agreement and moves for
summary affirmance.
Johnson’s appeal waiver was knowing and voluntary, and therefore, the
waiver is enforced. See United States v. Melancon, 972 F.2d 566, 567-68 (5th Cir.
1992). Moreover, contrary to Johnson’s argument, he is not entitled to appeal
based on the exception to the waiver for appeals of sentences exceeding the
statutory maximum punishment because his sentence did not exceed the
statutory maximum term of life imprisonment. See 21 U.S.C. § 841(b)(1)(A)(iii).
Thus, we do not address the merits of Johnson’s challenge to his sentence.
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is GRANTED. The Government’s alternative
motion for an extension of time is DENIED.

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