United States v. Johnson, 18-4345

• Decision Date: 06 February 2019
• Docket Number: No. 18-4345,18-4345
• Citation: 915 F.3d 223
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Willie JOHNSON, Defendant – Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

915 F.3d 223

UNITED STATES of America, Plaintiff – Appellee,

v.Willie JOHNSON, Defendant – Appellant.

No. 18-4345

United States Court of Appeals, Fourth Circuit.

Argued: December 13, 2018

Decided: February 6, 2019

ARGUED: Lisa M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charlottesville, Virginia, for Appellant. Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia. ON BRIEF: Frederick T. Heblich, Jr., Interim Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.

Before WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris and Judge Quattlebaum joined.

WILKINSON, Circuit Judge:

Defendant Willie Johnson challenges the district court’s order resentencing him for armed bank robbery and related crimes following a successful petition vacating his original sentence under 28 U.S.C. § 2255. The district court honored the sentencing recommendation in Johnson’s original plea agreement, in which the government agreed not to seek a mandatory life sentence under the federal three-strikes law. See 18 U.S.C. § 3559(c). Johnson now argues that he received no benefit from the plea agreement because his prior conviction for a New York robbery offense would not have counted as his third strike, and he thus would have been ineligible for a mandatory life sentence. We disagree. The text and structure of § 3559(c) reveal a congressional intent to encompass state laws such as the New York robbery offense here, which shares the essential characteristics of the enumerated robbery offenses under federal law. We therefore affirm the district court’s sentencing decision.

I.

The record of the sentencing hearing revealed the following: On February 1, 2002, Willie Johnson robbed federally insured Farmer and Merchants Bank in Afton, Virginia along with his then-girlfriend’s son, Khalid Ahmad. Both men wore ski masks and carried firearms—Johnson an AR-15 rifle, Ahmad a .40 caliber pistol. Johnson ordered customers to get on the floor and, when one hesitated, yelled, "I told you to get down, I don’t want to have to shoot nobody." J.A. 219. He then commanded tellers to stuff the bank’s cash in a pillowcase, this time with less subtlety: "If you don’t hurry up I’ll kill you, don’t think I won’t kill you." Id. After collecting about six-thousand dollars, Johnson and Ahmad sped away at more than one hundred miles-per-hour in a vehicle they had stolen earlier that morning. In the course of the attempted getaway, the men jumped a curb and drove through a school playground. They ditched the car at the edge of a forested area near the school and ran into the woods. Witnesses heard gunshots. Schoolchildren were rushed indoors. While the men evaded capture that day, they were apprehended shortly after.

A federal grand jury indicted Johnson for conspiring to commit bank robbery and conspiring to use and carry a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 371 (Count One); robbing a bank with a deadly weapon, in violation of 18 U.S.C. § 2113(a) and (d) (Count Two); brandishing a semiautomatic assault weapon during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count Three); and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1), with three previous convictions for violent felony offenses under 18 U.S.C. § 924(e) (the Armed Career Criminal Act, or ACCA) (Collectively, Count Five).¹

The Presentence Investigation Report also revealed the following: Johnson’s criminal record, even excluding numerous juvenile adjudications and parole violations, was extensive. In 1975, Johnson assaulted a man with a pool cue, and he later pled guilty to New York assault charges. In 1976, Johnson pled guilty to New York Robbery and was sentenced to seven years’ incarceration. He had robbed a man at gunpoint, pistol-whipping the man near his eye and causing a concussion. In 1983, Johnson was charged with ten bank robberies in the United States District Court for the Eastern District of New York. He pled guilty to two of them and received a sentence of ten years’ imprisonment. In 1994, he burglarized at least two homes, crimes for which he subsequently pled guilty to attempted burglary and was sentenced to 30-60 months’ incarceration. In 1999, Johnson was convicted of three crimes related to breaking into a residence, for which he received three consecutive one-year terms in jail. The present offenses took place in 2002.

Federal law provides for lengthier sentences for repeat, violent offenders like Johnson. Most relevant to Johnson’s case was the federal three-strikes law, which provides for a mandatory sentence of life in prison after a third conviction for a "serious violent felony." See 18 U.S.C. § 3559(c)(2)(F) (listing "robbery" as a "serious violent felony"). Leading up to Johnson’s trial for the instant offenses, the United States filed an Information, see 21 U.S.C. § 851(a), a document alerting the court that Johnson had two prior "serious violent felony" convictions—specifically, Johnson’s 1976 New York robbery and 1983 federal bank robbery convictions. A conviction in the 2002 bank robbery case, in other words, would have been Johnson’s third strike.

Staring at a mandatory life sentence, Johnson agreed to plead guilty on the third day of trial. Johnson specified in the plea agreement, "In exchange for my pleas of guilty to the charges in the Indictment, the United States will move to dismiss the Information filed pursuant to 18 U.S.C. § 3559(c) and 21 U.S.C. § 851(a)." J.A. 23.

The agreement also contained the following sentencing recommendation: "I agree to an upward departure on Count Two [bank robbery] to the maximum statutory sentence for that charge [of 300 months]. I agree to this recommendation, in exchange for the United States moving to dismiss the Information that would otherwise enhance my sentence to mandatory life imprisonment." J.A. 24.

The United States honored its end of the bargain by dismissing the Information. The United States District Court for the Western District of Virginia then held Johnson to his end of the bargain, imposing concurrent 300-month sentences for bank robbery (Count Two) and under the Armed Career Criminal Act (Count Five), along with a concurrent 60-month sentence for the conspiracy charge (Count One). This sentence fell within Johnson’s then-mandatory guidelines range of 262-327 months. The district court also sentenced Johnson to 120 months in prison for brandishing a semiautomatic assault weapon during and in relation to a crime of violence (Count Three), to be served consecutively. Johnson’s effective sentence totaled 420 months in prison.

About a dozen years later, the Supreme Court ruled that ACCA’s residual clause was impermissibly vague under the Fifth Amendment’s Due Process Clause. See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). The defendant then filed a petition under 28 U.S.C. § 2255, seeking to vacate his 420-month sentence because Count Five had included a charge based on ACCA’s residual clause. See 18 U.S.C. § 924(e)(2)(B). There remained a dispute whether ACCA still applied to Johnson without the residual clause. ACCA properly applied if Johnson had three previous "violent felony" convictions. Id. A violent felony includes a state felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e) (the force clause). Johnson effectively conceded that his two 1983 federal bank robbery convictions counted as violent felonies. See United States v. McNeal , 818 F.3d 141, 153 (4th Cir. 2016) ( 18 U.S.C. § 2113 qualifies under ACCA’s force clause). The parties disagreed as to whether Johnson’s 1976 New York third-degree robbery conviction required as an element the use of physical force.

The district court ultimately sided with the defendant. Under that ruling, Johnson no longer qualified as an armed career criminal, and his existing sentence on Count Five therefore exceeded the statutory maximum for a felon-in-possession charge without the ACCA enhancement. The court granted Johnson’s § 2255 petition and vacated his existing sentence in full under the sentencing package doctrine, which provides that "when a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan, and that if some counts are vacated," the judge should revisit the sentences on all the remaining counts. United States v. Ventura , 864 F.3d 301, 309 (4th Cir. 2017) (internal quotation marks omitted).

The United States Probation Office prepared a new Presentence Investigation Report reflecting the district court’s determination that Johnson was not an armed career criminal under ACCA, and also not listing him as a career offender under the Sentencing Guidelines, resulting in an amended guidelines range of 130-162 months. The district court resentenced Johnson to 60 months for possessing a firearm as a convicted felon (Count Five), instead of the original 300-month sentence that reflected the ACCA enhancement.

The sentencing court, however, imposed the same sentences as before on the remaining counts after considering the original plea agreement and the § 3553(a) factors. The court observed "that the offense conduct was very serious, exposing both the individuals at the bank as well as those in [the] path of his flight to danger." J.A. 203. It also rejected Johnson’s argument that his sentence should be reduced because of his age. Johnson’s "extreme criminal history," coupled with a present offense that was "one of the worst that ha[d] come before the [c]...