Mayra Dominguez-Cortez v. Michael B. Mukasey

1The Honorable John A. Jarvey, United States District Judge for the Southern
District of Iowa.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-2391
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Southern District of Iowa.
Timothy Terell Johnson, *
* [UNPUBLISHED]
Appellant. *
___________
Submitted: October 14, 2009
Filed: October 21, 2009
___________
Before BYE, BOWMAN, and BENTON, Circuit Judges.
___________
PER CURIAM.
Timothy Terell Johnson pleaded guilty to conspiring to distribute at least 50
grams of a mixture or substance containing cocaine base (crack), in violation of 21
U.S.C. § 841(a)(1) (2009). The District Court 1 sentenced him to the statutory
minimum of life in prison. On appeal, Johnson’s counsel seeks permission to
withdraw and has filed a brief under Anders v. California, 386 U.S. 738 (1967),
identifying as possible issues for review (1) the District Court’s denial of Johnson’s
motion to withdraw his guilty plea, and (2) the sentence imposed. Johnson has filed

-- 1 of 3 --

-2-
pro se supplemental briefs asserting additional arguments, and has moved for
appointment of new counsel.
First, we conclude that the District Court did not abuse its discretion in denying
Johnson’s motion to withdraw his guilty plea. See United States v. Gray, 152 F.3d
816, 819 (8th Cir. 1998) (standard of review); United States v. Devins, 646 F.2d 336,
337 (8th Cir. 1981) (per curiam) (burden is on defendant to establish grounds for
guilty-plea withdrawal). Johnson admitted his guilt at the plea hearing and confirmed
that he was voluntarily pleading guilty. He also confirmed numerous times that he
understood the statutory minimum sentence was life in prison, and that it was within
the government’s discretion to move for a downward departure based on substantial
assistance. See Blackledge v. Allison, 431 U.S. 63, 74 (1977) (“Solemn declarations
in open court carry a strong presumption of verity.”); United States v. Morrison, 967
F.2d 264, 268 (8th Cir. 1992) (“When a defendant has entered a knowing and
voluntary plea of guilty at a hearing at which he acknowledged committing the crime,
‘the occasion for setting aside a guilty plea should seldom arise.’” (citation omitted)).
Second, we note that the District Court lacked discretion to sentence Johnson
below the statutory minimum of life in prison. See United States v. Chacon, 330 F.3d
1065, 1066 (8th Cir. 2003) (only authority for District Court to depart from statutory
minimum sentence is found in 18 U.S.C. § 3553(e) and (f), which apply only when
government makes motion for substantial assistance or defendant qualifies for safety-
valve relief).
Third, we decline to review on direct appeal Johnson’s pro se claims of
ineffective assistance of counsel and a coerced guilty plea. See United States v.
McAdory, 501 F.3d 868, 872-73 (8th Cir. 2007) (appellate court ordinarily defers
ineffective-assistance claims to 28 U.S.C. § 2255 proceedings); United States v. Cain,
134 F.3d 1345, 1352 (8th Cir. 1998) (claim that ineffective assistance of counsel
rendered guilty plea involuntary is more properly raised in § 2255 proceedings).

-- 2 of 3 --

-3-
Finally, we hold that Johnson’s challenge to the denial of his suppression
motion is foreclosed by his unconditional guilty plea. See United States v. Gamble,
327 F.3d 662, 663 n.2 (8th Cir. 2003) (unconditional guilty plea forecloses
defendant’s right to challenge denial of motion to suppress (citations omitted)).
Having reviewed the record independently under Penson v. Ohio, 488 U.S. 75,
80 (1988), we find no nonfrivolous issues. Accordingly, we deny Johnson’s motion
for new counsel, grant counsel’s request to withdraw, and affirm the judgment.
______________________________

-- 3 of 3 --