United States of America v. Anthony Justin Johnson

United States Court of Appeals
For the Eighth Circuit
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No. 20-2604
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Anthony Justin Johnson
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: July 14, 2021
Filed: July 19, 2021
[Unpublished]
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Before SHEPHERD, GRASZ, and STRAS, Circuit Judges.
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PER CURIAM.
Anthony Johnson pleaded guilty to being a felon in possession of a firearm.
See 18 U.S.C. §§ 922(g)(1), 924(a)(2). As part of the plea agreement, he “waive[d]
his right to appeal his sentence” unless, as relevant here, it exceeded the statutory

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maximum. The district court1 gave him a 90-month prison sentence, which is below
the statutory maximum. See id. § 924(a)(2) (setting the maximum sentence at 10
years). In an Anders brief, Johnson’s counsel challenges the substantive
reasonableness of the sentence and requests permission to withdraw. See Anders v.
California, 386 U.S. 738 (1967). In a pro se supplemental brief, Johnson separately
argues that counsel’s ineffectiveness caused the district court to miss certain
mitigating factors and impose a substantively unreasonable sentence.
Johnson’s sentencing challenges are foreclosed by the appeal waiver, which
he entered into knowingly and voluntarily. See United States v. Scott, 627 F.3d 702,
704 (8th Cir. 2010) (reviewing this issue de novo); United States v. Andis, 333 F.3d
886, 889–92 (8th Cir. 2003) (en banc) (explaining that an appeal waiver will be
enforced if the appeal falls within the scope of the waiver, the defendant knowingly
and voluntarily entered into the plea agreement and the waiver, and enforcing the
waiver would not result in a miscarriage of justice). The ineffective-assistance-of-
counsel claim, by contrast, is not covered by the appeal waiver, but it would be
premature to consider it now without an adequately developed record. See United
States v. Ramirez-Hernandez, 449 F.3d 824, 826–27 (8th Cir. 2006) (explaining that
this type of claim is “usually best litigated in collateral proceedings”).
Finally, we have independently reviewed the record and conclude that no
other non-frivolous issues exist. See Penson v. Ohio, 488 U.S. 75, 82–83 (1988).
Accordingly, we dismiss the appeal and grant counsel permission to withdraw.
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1 The Honorable David Gregory Kays, United States District Judge for the
Western District of Missouri.

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