U.S. v. Johnson

• Citation: 587 F.3d 203
• Decision Date: 18 November 2009
• Docket Number: No. 08-3693.,08-3693.
• Parties: UNITED STATES of America v. James Henry JOHNSON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

587 F.3d 203

UNITED STATES of America v. James Henry JOHNSON, Appellant.

No. 08-3693.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) October 29, 2009.

Filed November 18, 2009.

Renee Pietropaolo, Office of Federal Public Defender, Pittsburgh, PA, for Appellant.

Robert L. Eberhardt, Rebecca R. Haywood, Laura S. Irwin, Office of the United

States Attorney, Pittsburgh, PA, for Appellee.

Before: SMITH, FISHER and NYGAARD, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

James Henry Johnson pled guilty to one count of unlawful possession of a firearm by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The United States Probation Office assigned Johnson a base offense level of 20 under the United States Sentencing Guidelines based on his 2002 conviction under the Pennsylvania simple assault statute ("PSAS"), 18 Pa. Cons.Stat. § 2701. Johnson challenged that calculation, arguing that his simple assault conviction did not constitute a "crime of violence" under the Guidelines. The District Court rejected that argument and sentenced Johnson to 77 months' imprisonment. Johnson appeals, arguing that the District Court's determination that his simple assault conviction is a crime of violence cannot be reconciled with the Supreme Court's decision in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). For the reasons that follow, we will vacate Johnson's sentence and remand for resentencing.

I.

The facts giving rise to this case are relatively straightforward. On November 1, 2006, Johnson was sitting in a car parked in a grocery store parking lot in Pittsburgh, Pennsylvania. Pittsburgh police officers received a tip regarding Johnson's whereabouts and arrested him pursuant to an outstanding warrant issued in connection with unrelated charges. Inside the car, the officers found a loaded firearm with an obliterated serial number. Thereafter, Johnson was charged in the Western District of Pennsylvania with one count of unlawful possession of a firearm by a person convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). Johnson subsequently pled guilty to that charge.

Before sentencing, the Probation Office prepared a Presentence Report ("PSR"). Pursuant to U.S.S.G. § 2K2.1(a)(4)(A), the Probation Office calculated Johnson's base offense level as 20 based on his 2002 simple assault conviction in the Allegheny County Court of Common Pleas, which the Probation Office designated as a "crime of violence" pursuant to U.S.S.G. § 4B1.2(a)(2). After giving Johnson a four-level increase because the firearm he unlawfully possessed had an obliterated serial number, and a three-level decrease to reflect his acceptance of responsibility and his timely notification of his intention to plead guilty, the Probation Office calculated Johnson's total offense level as 21. The PSR also detailed Johnson's criminal history. It noted that Johnson had the following five prior convictions: a 2001 conviction for fleeing or attempting to elude a police officer, possession or distribution of marijuana, and a failure to yield to traffic signs; a 2002 simple assault conviction; a 2002 conviction for possession of a firearm without a license, unauthorized use of an automobile and other vehicles, and driving without a license; a 2002 conviction for possession of a firearm without a license and unauthorized use of an automobile; and a 2004 conviction for simple assault.¹ The Probation Office assigned Johnson a total of 11 criminal history points to reflect these prior convictions. Three more points were added because Johnson's felon-in-possession conviction arose while he was on parole for a previous offense and within two years of his release from parole for another previous offense. Accordingly, Johnson was assigned a total of 14 criminal history points, resulting in a criminal history category of VI. Johnson's total offense level of 21 and criminal history category of VI resulted in an advisory Guidelines range of 77 to 96 months' imprisonment.²

At sentencing, Johnson objected to several aspects of the PSR. In pertinent part, Johnson objected to the application of U.S.S.G. § 2K2.1(a)(4)(A) in the calculation of his base offense level. He asserted that his 2002 simple assault conviction did not qualify as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2) in light of Begay. He pointed out that count one of the criminal information in the simple assault case charged him with intentional, knowing and reckless conduct, and that, aside from the information, the government had introduced no other evidence on the basis of which to determine his particular mens rea when he committed that crime. Johnson contended that reckless conduct could never constitute a crime of violence in light of Begay because such conduct, by definition, is not purposeful. The government urged the District Court not to make a blanket ruling to that effect, and asked the Court to infer from the criminal information alone that Johnson's simple assault conviction evinced the sort of conduct that could be considered a violent crime under Begay. The government noted that while a sentencing court could consider the plea agreement and the plea colloquy, among other things, to determine a defendant's actual mens rea, in Johnson's case the former was "not particularly helpful" and the latter was "not available[.]" (App. 100.) After hearing the parties' respective positions, the District Court ruled as follows:

I do not read or see Begay as broadly as the defense does. I do not believe that Begay instructs that this type of underlying offense can never be a crime of violence. A crime is violent if it presents a serious risk of injury to another person. In this case, Mr. Johnson's plea to simple assault demonstrates from the charging document and the statute itself that it presented a serious risk of injury to another person. And I do believe that it is similar in kind as well as in the degree of risk posed by the commission of other crimes. And it's similar in kind because it involves purposeful, violent and aggressive behavior. So, that is my ruling in this case. It would keep the offense level at a 21.

(App. 102-03.)

The District Court accepted the PSR's calculations and was unpersuaded by Johnson's other objections. The Court sentenced Johnson to 77 months' imprisonment and three years of supervised release.

This timely appeal followed. Johnson argues that: (1) his 2002 simple assault conviction is not a "crime of violence" under U.S.S.G. § 4B1.2(a)(2); (2) his sentence is procedurally unreasonable; and (3) his sentence is substantively unreasonable.

II.

The District Court had jurisdiction under 18 U.S.C. § 3231. This Court has jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We exercise plenary review over the legal question whether a particular crime constitutes a crime of violence. United States v. McQuilkin, 97 F.3d 723, 727 (3d Cir.1996). In interpreting the Guidelines, we look to their "plain and unambiguous language[,]" United States v. Swan, 275 F.3d 272, 279 (3d Cir.2002) (quotation marks and citation omitted), but commentary to the Guidelines "is authoritative unless it violates the Constitution or federal statute or is inconsistent with or is a plainly erroneous reading of that provision[.]" United States v. Remoi, 404 F.3d 789, 795 (3d Cir.2005) (per curiam) (citing Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). We review the District Court's sentence for reasonableness under the abuse-of-discretion standard. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 594, 597, 169 L.Ed.2d 445 (2007); United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc).

III.

The Guidelines provide that a defendant's base offense level is 20 if the defendant "committed any part of the instant offense subsequent to sustaining one felony conviction of ... a crime of violence[.]" U.S.S.G. § 2K2.1(a)(4)(A). The Guidelines define a "crime of violence" as

any offense ... punishable by imprisonment for a term exceeding one year, that —

(1) has as 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.

U.S.S.G. § 4B1.2(a) (emphasis supplied). The commentary to § 4B1.2 offers a list of crimes that constitute crimes of violence, including "murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." U.S.S.G. § 4B1.2 cmt. 1. In this case, we consider only the portion of § 4B1.2(a)(2) italicized above, which we have referred to as the "residual clause." United States v. Hopkins, 577 F.3d 507, 510 (3d Cir.2009).³

In United States v. Dorsey, 174 F.3d 331 (3d Cir.1999), we held that a conviction under the PSAS is a crime of violence under § 4B1.1 of the Guidelines. Id. at 333. As both parties recognize, the analytical framework we employed in Dorsey has been altered by the Supreme Court's decision in Begay.⁴ Post-Begay, to qualify as a crime of violence the crime in question "must (1) present a serious potential risk of physical injury and (2) be `roughly similar, in kind as well as degree of risk posed, to the examples [burglary, arson, extortion, or use of explosives] themselves.'" United States v. Polk, 577 F.3d 515, 518 (3d Cir.2009) (emphasis and alteration in original) (quoting Begay, 128 S.Ct. at 1585-86). A crime is similar in kind to one of the enumerated examples if it "typically involve[s] purposeful, violent, and aggressive conduct." Begay, 128 S.Ct. at 1586 (internal quotation marks and citations omitted).⁵ "If the crime of conviction is materially different in terms of these...