USA. v. Johnson, 00-4414

• Decision Date: 02 March 2001
• Docket Number: No. 00-4414,00-4414
• Citation: 246 F.3d 330
• Parties: (4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELLIOT JOHNSON, Defendant-Appellant. Argued:
• Court: U.S. Court of Appeals — Fourth Circuit

Page 330

246 F.3d 330 (4th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ELLIOT JOHNSON, Defendant-Appellant.

No. 00-4414

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Argued: March 2, 2001

Decided: April 3, 2001

Appeal from the United States District Court for the Western District of Virginia, at Abingdon. James P. Jones, District Judge.

(CR-99-75)

COUNSEL: ARGUED: Barry Lynn Proctor, Abingdon, Virginia, for Appellant. Eric Matthew Hurt, Assistant United States Attorney, Abingdon, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr., United States Attorney, Abingdon, Virginia, for Appellee.

Before WIDENER and LUTTIG, Circuit Judges, and HAMILTON, Senior Circuit Judge.

Affirmed by published opinion. Senior Judge Hamilton wrote the opinion, in which Judge Widener and Judge Luttig joined.

OPINION

HAMILTON, Senior Circuit Judge:

Following a jury trial, Elliot Johnson (Johnson) was convicted of possession of cocaine base (crack) with intent to distribute and distribution of crack within 1,000 feet of a public school, 21 U.S.C. SS 841(a)(1) and 860(a). After concluding that Johnson was a career offender pursuant to United States Sentencing Guidelines Manual (Sentencing Guidelines or USSG) S 4B1.1, the district court sentenced Johnson to 262 months' imprisonment.¹ Johnson appeals his sentence, arguing the district court erred when it concluded that he should be sentenced as a career offender under the Sentencing Guidelines. For the reasons stated below, we affirm.

I

On April 28, 1999, a Bristol Police Department (BPD) informant purchased crack at Johnson's residence in Bristol, Virginia. Later that day, the BPD obtained a search warrant for Johnson's residence and, shortly thereafter, the BPD conducted a search of his residence. During the search, the BPD seized 5.01 grams of crack from Johnson's bedroom. It was later determined that these events occurred within 1,000 feet of a public school.

On January 13, 2000, Johnson was charged in a single count superceding indictment with possession of crack with intent to distribute and distribution of crack within 1,000 feet of a public school, 21 U.S.C. SS 841(a)(1) and 860(a). Following a jury trial, Johnson was convicted.

Johnson was sentenced on May 23, 2000. At sentencing, the district court determined that Johnson was a career offender pursuant to USSG S 4B1.1. The district court found that Johnson was over the age of eighteen at the time of the instant offense and that he had one prior felony conviction for a controlled substance offense, a 1992 New Jersey felony conviction for possession of a controlled substance with the intent to distribute within 1,000 feet of a school, and one conviction for a crime of violence, a 1996 New Jersey conviction for possession of a sawed-off shotgun. As a result of the district court's career offender determination, Johnson's offense level was increased from twenty-eight to thirty-four. Johnson's offense level, coupled with a criminal history category of six, yielded a guideline range of 262 to 327 months' imprisonment. The district court sentenced Johnson to 262 months' imprisonment, and Johnson noted a timely appeal.

II

The issue presented in this appeal is whether the district court erred when it sentenced Johnson as a career offender under the Sentencing Guidelines. According to Johnson, he is not a career offender because his 1996 New Jersey conviction for possession of a sawed-off shotgun is not a crime of violence.²

Under the Sentencing Guidelines, a defendant should be sentenced as a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

USSG S 4B1.1. In this case, there is no dispute that Johnson was at least eighteen-years old when he committed the instant offense and that the instant offense is a controlled substance felony offense. There is also no dispute that Johnson has at least one prior felony conviction for a controlled substance offense, the 1992 New Jersey conviction for possession of a controlled substance with the intent to distribute within 1,000 feet of a school. Accordingly, the only remaining question in the case is whether Johnson's 1996 New Jersey conviction for possession of a sawed-off shotgun is a crime of violence under the Sentencing Guidelines.

A "crime of violence" is defined by the Sentencing Guidelines as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -

(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. S 4B1.2(a).³ The commentary to USSG S 4B1.2 enumerates certain offenses that are crimes of violence and explains that

[o]ther offenses are . . . "crimes of violence" if (A) that offense has an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted . . ., by its nature, presented a serious potential risk of physical injury to another.

Id. S 4B1.2, comment. (n.1).

Possession of a sawed-off shotgun is not one of the offenses enumerated in USSG S 4B1.2(a)(2) or the accompanying commentary. Moreover, this offense does not contain as an element the use, attempted use, or threatened use of physical force.⁴ Therefore, possession of a sawed-off shotgun is a crime of violence only if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. S 4B1.2(a)(2).

The Sentencing Guidelines' commentary emphasizes that in determining "whether an offense is a crime of violence. . . the offense of conviction (i.e., the conduct of which the defendant was convicted) is the focus of the inquiry." Id. S 4B1.2, comment. (n.2). Thus, the Sentencing Guidelines prohibit "a wideranging inquiry into the specific circumstances surrounding a conviction" in determining whether an offense is a crime of violence. United States v. Johnson, 953 F.2d 110, 113 (4th Cir. 1991). Consistent with the limitations imposed by the Sentencing Guidelines on any factual inquiry, we have stated that:

[I]n assessing whether a particular offense satisfies the "otherwise clause" of [USSG S 4B1.2(a)(2)], a sentencing court must confine its factual inquiry to those facts charged in the indictment. . . . If the sentencing court cannot glean the circumstances surrounding the defendant's commission of a crime from the indictment, the question for the sentencing court becomes whether that crime, in the abstract, involves conduct that presents a serious potential risk of physical injury to another.

United States v. Dickerson, 77 F.3d 774, 776 (4th Cir. 1996) (citations and internal quotation marks omitted). Thus, under Dickerson, a twopart inquiry is required to determine whether an offense is a crime of violence under the "otherwise clause." Martin, 215 F.3d at 473. First, we consider the indictment pertaining to the offense of which the defendant was convicted. Id. If that effort is unavailing, we consider whether the offense of conviction is a crime of violence in the abstract. Id.

The indictment charging Johnson with possession of a sawed-off shotgun is not contained in the record; therefore, we cannot conduct the first inquiry under Dickerson. Because we cannot conclude from the indictment that Johnson's 1996 New Jersey conviction for possession of a sawed-off shotgun is a crime of violence, it is necessary to proceed to the second part of the Dickerson inquiry, whether possession of a sawed-off shotgun is, in the abstract, a crime of violence.

To constitute a crime of violence in the abstract"most, if not all, instances of an offense should involve a serious potential risk of injury." Martin, 215 F.3d at 475. When most instances of an offense involve a serious potential risk of injury, we have found the offense to be a crime of violence or a violent felony.⁵ See United States v. Hairston, 71 F.3d 115, 118 (4th Cir. 1995) (holding that escape from custody is a violent felony, relying on "the chance that [even] in the case of an escape by stealth, the escapee will be intentionally or unintentionally interrupted by another" creating the possibility that "the escapee [will] choose to dispel the interference by means of physical force"); see also Dickerson, 77 F.3d at 777 (relying on Hairston and holding that the offense of attempted escape from custody is a crime of violence because the offense "presents at least as much risk of physical injury to another as a successful escape"); United States v. Mobley, 40 F.3d 688, 696 (4th Cir. 1994) (holding that pickpocketing is a violent felony because of the likelihood of confrontation); United States v. Custis, 988 F.2d 1355, 1363-64 (4th Cir. 1993) (attempted breaking and entering of a dwelling constitutes a violent felony because of the substantial risk of confrontation).

In contrast, when most instances of an offense do not involve a serious potential risk of injury, we have declined to find the offense to be a crime of violence. For example, we have held that possession of a firearm by a convicted felon is not a crime of violence because the "danger inherent in the mere possession of a firearm is, in many cases, too highly attenuated to qualify the offense as a per se `crime of violence.'" Johnson, 953 F.2d at 115; see also USSG S 4B1.2, comment. (n.1) ("`Crime of violence' does not include the offense of unlawful possession of a firearm...