United States of America v. Deron Johnson

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-4732
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DERON JOHNSON,
Defendant - Appellant.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Matthew James Maddox, District Judge. (1:21-cr-00351-MJM-3)
Submitted: October 10, 2024 Decided: October 15, 2024
Before WILKINSON and AGEE, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed in part, dismissed in part by unpublished per curiam opinion.
ON BRIEF: Robin M. Earnest, THE EARNEST LAW FIRM, Greenbelt, Maryland, for
Appellant. Kim Y. Hagan, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Deron Johnson pled guilty, pursuant to a written plea agreement, to conspiracy to
commit Hobbs Act robbery and Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a).
The district court sentenced Johnson to 228 months’ imprisonment and three years’
supervised release. On appeal, Johnson’s appellate counsel has filed a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), stating that there are no meritorious grounds
for appeal. Johnson has filed a pro se supplemental brief arguing that his plea counsel
rendered ineffective assistance by failing to object to the district court’s calculation of his
criminal history score. The Government has moved to dismiss the appeal based on the
appeal waiver in Johnson’s plea agreement. We grant the Government’s motion to dismiss
in part and affirm in part.
“We review an appellate waiver de novo to determine its enforceability” and “will
enforce the waiver if it is valid and if the issue being appealed falls within its scope.”
United States v. Carter, 87 F.4th 217, 223-24 (4th Cir. 2023) (internal quotation marks
omitted). “[A]n appellate waiver is valid if the defendant knowingly and voluntarily agreed
to it.” Id. at 224. To determine whether a waiver is knowing and voluntary, “we look to
the totality of the circumstances, including the defendant’s experience, conduct,
educational background and knowledge of his plea agreement and its terms.” Id. “When
a district court questions a defendant during a Rule 11 hearing regarding an appeal waiver
and the record shows that the defendant understood the import of his concessions, we
generally will hold that the waiver is valid.” United States v. Boutcher, 998 F.3d 603, 608

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(4th Cir. 2021). Our review of the record confirms that Johnson knowingly and voluntarily
waived his right to appeal and that the waiver is valid and enforceable.
The appeal waiver does not bar our consideration of Johnson’s claim of ineffective
assistance of counsel. See United States v. Johnson, 410 F.3d 137, 151 (4th Cir. 2005).
However, we do not consider ineffective assistance claims on direct appeal “[u]nless an
attorney’s ineffectiveness conclusively appears on the face of the record.” United States v.
Faulls, 821 F.3d 502, 507 (4th Cir. 2016). Ineffectiveness of counsel does not conclusively
appear on the face of the record before us. Therefore, Johnson’s ineffective assistance
claim “should be raised, if at all, in a [28 U.S.C.] § 2255 motion.” United States v. Jordan,
952 F.3d 160, 163 n.1 (4th Cir. 2020).
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal outside the scope of Johnson’s valid appeal
waiver. We therefore grant in part the Government’s motion to dismiss, dismiss the appeal
as to all issues within the waiver’s scope, and affirm the remainder of the criminal
judgment. This court requires that counsel inform Johnson, in writing, of the right to
petition the Supreme Court of the United States for further review. If Johnson requests that
a petition be filed, but counsel believes that such a petition would be frivolous, then counsel
may move in this court for leave to withdraw from representation. Counsel’s motion must
state that a copy thereof was served on Johnson. We dispense with oral argument because

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the facts and legal contentions are adequately presented in the materials before this court
and argument would not aid the decisional process.
AFFIRMED IN PART,
DISMISSED IN PART

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