and 02-1830 UNITED STATES OF AMERICA v. Regina J. Johnson

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 02-1785 and 02-1830
UNITED STATES OF AMERICA
v.
REGINA J. JOHNSON,
Appellant
Appeals from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 01-cr-00620-1)
District Court Judge: Honorable Herbert J. Hutton
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 4, 2003
Before: SLOVITER, RENDELL and STAPLETON, Circuit Judges.
(Filed February 4, 2003 )
OPINION OF THE COURT
RENDELL, Circuit Judge.
Regina Johnson pled guilty to one count of willfully causing the unlawful transfer of
identification documents, in violation of 18 U.S.C. § 1028(a)(2) & (b)(2) (2001), and one
count of unlawfully accessing a protected computer, in violation of 18 U.S.C. §
1030(a)(2)(c) (2001), and was sentenced to 37 months imprisonment. She appeals the

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District Court for the Eastern District of Pennsylvania’s failure to downward depart for
post-rehabilitation efforts. Because we find that Johnson waived her right to appeal her
sentence, we do not have jurisdiction to consider the merits of her appeal. We will
therefore dismiss the appeal and affirm the judgment of the District Court.
The District Court had jurisdiction under 18 U.S.C. § 3231 (2001). We examine the
legality of Johnson’s plea agreement de novo. United States v. Khattak, 273 F.3d 557, 560
(3d Cir. 2001).
In October 2001, an information was filed against Johnson charging her with
illegally providing fraudulent drivers licenses to 195 individuals and unlawfully accessing
the Pennsylvania State Police computer system to do so. In November 2001, Johnson
entered into a plea agreement in which she agreed to waive indictment by a grand jury and
plead guilty to the two counts. In the agreement, she also entered into a number of
stipulations regarding the computation of her guideline range. She agreed to a base offense
level of 11, an increase of 9 levels because her offense involved more than 100 fraudulent
licenses, an increase of 2 levels for abuse of her position of trust, a downward adjustment
of 2 levels for acceptance of responsibility, and a downward adjustment of 1 level for
assisting authorities in the investigation. Her final offense level was thus 19, with a
criminal history category of I, which carries a guideline range of 30 to 37 months
imprisonment. Johnson’s plea agreement further provided that “neither party [would] seek
any other adjustments or departures under the sentencing guidelines,” and that, “in the event
that the Court adopt[ed] the parties’ stipulated Sentencing Guideline computations . . ., the

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parties agree[d] to knowingly and voluntarily waive their respective rights to file an appeal
relating to these particular guideline computations.”
In March 2002, Johnson appeared before the District Court for sentencing. The
Court fully apprised her of her trial rights and her right to appeal and asked if she
understood that if she accepted the plea agreement, she could not appeal her sentence so
long as the Court stayed within the guideline range of 30 to 37 months imprisonment. She
responded that she did. Later at the hearing, Johnson’s counsel moved for a downward
departure. When the prosecution pointed out that this was a violation of the plea
agreement, Johnson’s counsel consulted with Johnson, and then reiterated that she did not
wish to withdraw her guilty plea and would abide by the terms of the agreement. Her
counsel then stated that he simply wished to present evidence that would convince the
Court to impose a sentence at the bottom of the agreed-upon guideline range. After hearing
this evidence, the Court sentenced Johnson to 37 months imprisonment, the maximum
allowed under the guidelines. Johnson now appeals, requesting that we remand to the
District Court for consideration of her post-offense rehabilitation efforts.
“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless they
work a miscarriage of justice.” Khattak, 273 F.3d at 563. At the sentencing hearing, the
Court fully complied with Federal Rule of Criminal Procedure 11 and determined that
Johnson’s plea was entered into knowingly and voluntarily. On appeal, Johnson does not
challenge the plea agreement or contend that the waiver-of-appeals worked a miscarriage of
justice. In fact, she does not even mention the waiver. Having independently reviewed the

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1Because we will dismiss this appeal for lack of jurisdiction, we need not address
whether Johnson’s sentence should also be affirmed on the grounds that she waived her
right to request any downward departures not specifically delineated in the plea agreement.
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record, we cannot find any evidence of injustice, or even any error, in the calculation of her
guideline range. Because she has not proven that her plea was not knowing or voluntary or
that the waiver worked an injustice, we find that the waiver-of-appeals is valid, and that we
lack jurisdiction to consider the merits of her appeal.1 Accordingly, we will dismiss the
appeals and affirm the judgment of the District Court.
_________________________

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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell
Circuit Judge

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