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UNITED STATES OF AMERICA v. DENNIS TYRONE JOHNSON

November 29, 2010

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
DENNIS TYRONE JOHNSON, AKA BIG DEN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California D.C. No. 2:08-cr-00897-PA-1 Percy Anderson, District Judge, Presiding

The opinion of the court was delivered by: Strom, District Judge

FOR PUBLICATION

OPINION

Argued and Submitted October 5, 2010-Pasadena, California

Before: Raymond C. Fisher and Jay S. Bybee, Circuit Judges, and Lyle E. Strom, District Judge.*fn1

OPINION

Dennis Tyrone Johnson ("Johnson") pled guilty under a plea agreement to one count of knowingly and intentionally distributing at least 50 grams of a mixture containing cocaine base (i.e., crack cocaine), in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii). His plea agreement included a waiver of his right to appeal any sentence imposed. His sentencing guidelines range was 57-71 months, but the district court imposed a sentence of 10 years (120 months). His sentence also included a five-year term of supervised release with specific conditions. Johnson appeals his sentence. We affirm in part, vacate in part and remand.

I. BACKGROUND

Johnson's plea agreement contained the following relevant language: "Defendant gives up the right to appeal any sentence imposed by the [c]court, and the manner in which the sentence is determined, provided that the sentence is constitutional." (emphasis added). At Johnson's plea hearing, Johnson pled guilty to count I of the indictment under the terms of the agreement. Before accepting Johnson's plea, the district court determined Johnson was (1) "fully informed of his rights," (2) in command of his facilities as asserted by his counsel, and (3) not under the influence of medication, drugs or alcohol. The court also confirmed three essential facts: (1) Johnson had "read the plea agreement and discussed all of its terms with [his] lawyer;" (2) Johnson had "sign[ed] [the] agreement" and "underst[ood] the plea agreement and all of its terms;" and (3) Johnson did not "need any additional time to discuss any aspect of the plea agreement with [his counsel]."

The court explained to Johnson his plea was subject to a waiver of appeal. Government counsel subsequently read the waiver language out loud to Johnson, and then the following conversation took place between the court and Johnson:

THE COURT: Sir, do you understand that by entering into this agreement and pleading guilty you've agreed to give up your right to appeal any sentence you receive in accordance with the terms of this agreement?

JOHNSON: Yes.

THE COURT: Did you discuss waiving your right to appeal with your lawyer?

JOHNSON: Yes.

THE COURT: And based on that conversation, having considered the matter, do you wish to give up your right to appeal on the terms and ...


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