UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 09-4077

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

KEVIN LEE JOHNSON, a/k/a Lil KP, a/k/a KP,

Defendant - Appellant.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Frank D. Whitney,

District Judge. (3:07-cr-00061-FDW-12)

Submitted: September 8, 2011 Decided: October 3, 2011

Before NIEMEYER, KING, and SHEDD, Circuit Judges.

Affirmed in part; vacated and remanded in part by unpublished 

per curiam opinion.

Lisa S. Costner, LISA S. COSTNER, P.A., Winston-Salem, North 

Carolina, for Appellant. Amy Elizabeth Ray, Assistant United 

States Attorney, Asheville, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Kevin Lee Johnson appeals his conviction and the 240-

month sentence imposed after he pled guilty to drug conspiracy, 

in violation of 21 U.S.C. §§ 841(b)(1)(A), (B), (C), (D), 846 

(2006). The Government filed an information pursuant to 21 

U.S.C. § 851(a)(1) (2006), setting forth two prior North 

Carolina felony drug convictions, thereby subjecting Johnson to 

a statutorily mandated minimum term of life imprisonment. 

Subsequently, based on Johnson’s cooperation, the district court 

granted the Government’s motion to withdraw one of the prior 

convictions and sentenced Johnson to the resulting statutorily 

mandated minimum sentence of 240 months of imprisonment. 

Johnson appealed. 

Counsel has filed a brief in accordance with Anders v. 

California, 386 U.S. 738 (1967), noting no meritorious issues 

for appeal that would invalidate Johnson’s guilty plea. Johnson 

filed a pro se supplemental brief and motion to modify his 

sentence, challenging his conviction and sentence on several 

grounds. The Government declined to file a brief and has not 

filed a motion to dismiss based on the appellate waiver

contained in Johnson’s written plea agreement. We have reviewed 

the record and conclude that the district court substantially 

complied with the requirements of Fed. R. Crim. P. 11 and 

ensured that Johnson’s plea was knowing and voluntary and 
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supported by a sufficient factual basis. Consequently, we 

affirm Johnson’s conviction. 

We vacate Johnson’s sentence, however, and remand for 

further proceedings in light of our recent en banc opinion in

United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). The 

present record is not sufficient to allow a determination of 

whether, after Simmons, Johnson’s prior convictions qualify as a 

felony drug offense for purposes of an enhanced statutory 

penalty under 21 U.S.C. §§ 841(b), 851. We leave this 

determination to the district court on remand.

In accordance with Anders, we have reviewed the entire 

record in this case and have found one meritorious sentencing 

issue requiring remand. We therefore affirm Johnson’s 

conviction, but vacate his sentence and remand to the district 

court for further proceedings consistent with this opinion. We 

deny Johnson’s motion to modify his sentence. We dispense with 

oral argument because the facts and legal contentions are 

adequately presented in the materials before the court and 

argument would not aid the decisional process.

AFFIRMED IN PART; 

VACATED AND REMANDED IN PART