U.S. v. Johnson

• Decision Date: 07 January 1992
• Docket Number: No. 90-5248,90-5248
• Citation: 953 F.2d 110
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Olando JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 110

953 F.2d 110

UNITED STATES of America, Plaintiff-Appellee, v. Olando JOHNSON, Defendant-Appellant.

No. 90-5248.

United States Court of Appeals, Fourth Circuit.

Argued Oct. 3, 1991.

Decided Dec. 19, 1991.

As Amended Jan. 7, 1992.

David Ferris Tamer, Law Offices of David F. Tamer, Winston-Salem, N.C., argued (Pamela Stanback Glean, Stanback, Stanback & Martin, P.A., Susan Hayes, Greensboro, N.C., on brief), for defendant-appellant.

John Warren Stone, Jr., Asst. U.S. Atty., Greensboro, N.C., argued (Robert H. Edmunds, Jr., U.S. Atty., on brief), for plaintiff-appellee.

Before ERVIN, Chief Judge, SPROUSE, Circuit Judge, and MERHIGE, Senior District Judge for the Eastern District of Virginia, sitting by designation.

OPINION

ERVIN, Chief Judge:

Olando Johnson pled guilty, in the Middle District of North Carolina, to one count of Possession of Firearms by a Convicted Felon and was sentenced to 328 months of detention. He appeals his sentence, claiming that the trial court improperly categorized him as a "career offender" under the Sentencing Guidelines. Johnson also challenges the trial court's dismissal of two pretrial motions. We reject the latter argument, and affirm Johnson's conviction; however, we hold that Johnson was incorrectly designated as a "career offender" and, accordingly, remand the case for resentencing.

I.

On August 23, 1989, officers of the Caswell County, North Carolina, sheriff's department asked Olando Johnson for written consent to search his residence and the surrounding property in connection with a homicide investigation. Johnson gave his consent. Pursuant to the search, the officers discovered a plastic bag containing nine firearms buried in the backyard. At a subsequent interview, after being advised of his rights, Johnson admitted that he was responsible for these weapons. Johnson was a convicted felon, making his possession of firearms illegal under 18 U.S.C. § 922(g)(1). Moreover, Johnson's criminal history included convictions for at least three violent felonies, making him eligible for the mandatory sentence enhancing provisions of 18 U.S.C. § 924(e).

On September 10, 1990, following various unsuccessful pretrial motions, Johnson pled guilty to the charge of possession of firearms by a felon. At sentencing, the trial court found Johnson to be a "career offender" under the Sentencing Guidelines. This determination gave Johnson a base offense level of 37, which was adjusted downward by 2, to 35, for acceptance of responsibility, and a criminal history status of Category VI. The Guidelines produced a sentencing range of 292-365 months, and the trial court sentenced Johnson to 328 months.

II.

The most significant of Johnson's contentions is that the trial court erred by finding him to be a "career offender" under the Sentencing Guidelines. Under the Guidelines:

a defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (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.

U.S.S.G. § 4B1.1. It is undisputed that Johnson was over eighteen years old and that he had at least two prior felony convictions for violent crimes. Johnson's argument is that the instant offense, felon in possession of a firearm, should not be considered a crime of violence.

Section 4B1.2 of the Guidelines defines "crime of violence" for purposes of § 4B1.1 to be:

any offense under federal or state law punishable by imprisonment for a term exceeding one year that--(i) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) 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. The statute under which Johnson was convicted, 18 U.S.C. § 922(g)(1), does not have as an element the use, attempted use, or threatened use of force, nor is it one of those offenses explicitly listed in § 4B1.2(1)(ii). Thus, in order for Johnson to be classified as a career offender, the court must determine that his offense "involves conduct that presents a serious potential risk of physical injury to another." Id.

The first issue that must be resolved is whether, when making this decision, the court should look to the specific actions of the defendant in this particular case or to the general elements of the offense with which the defendant has been convicted. This issue has been the subject of a number of conflicting reported opinions and is further complicated by the fact that the Sentencing Commission, in the midst of the debate, changed the text of the "crime of violence" definition and twice changed the commentary that explains the application of that definition.

Prior to November 1, 1989, the commentary to § 4B1.2 read in relevant part:

Other offenses are covered only if the conduct for which the defendant was specifically convicted meets the above definition. For example, conviction for an escape accomplished by force or threat of injury would be covered; conviction for an escape by stealth would not be covered. Conviction for burglary of a dwelling would be covered; conviction for burglary of other structures would not be covered.

U.S.S.G. § 4B1.2, comment. (n. 1). This language became the basis of a dispute among the Circuits as to whether a sentencing court could weigh the defendant's actual conduct in applying the "crime of violence" definition, or whether the court was limited to considering an abstract definition of the offense. Compare, United States v. Williams, 892 F.2d 296, 304 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990); United States v. Goodman, 914 F.2d 696, 699 (5th Cir.1990); United States v. Maddalena, 893 F.2d 815, 820 (6th Cir.1989); United States v. Alvarez, 914 F.2d 915, 918 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2057, 114 L.Ed.2d 462 (1991) (all authorizing factspecific analysis of defendants' actions to determine whether "crime of violence" definition was satisfied), with United States v. Becker, 919 F.2d 568, 570 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1118, 113 L.Ed.2d 226 (1991); United States v. Gonzalez-Lopez, 911 F.2d 542, 547 (11th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2056, 114 L.Ed.2d 461 (1991) (both applying "crime of violence" definition to generic description of crime).

No doubt in response to this dispute, the Sentencing Commission revised the application note in the commentary to read:

Other offenses are included where ... the conduct set forth in the count of which the defendant was convicted involved use of explosives or, by its nature, presented a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2, comment. (n. 2). This provision, by its plain language referring to "the conduct set forth in the count of which the defendant was convicted," directs the sentencing court to look to the description of the defendant's actions as charged in the indictment. United States v. Leavitt, 925 F.2d 516, 517 (1st Cir.1991). Especially when viewed in light of the language it replaces (that the sentencing court look to "the conduct for which the defendant was specifically convicted"), the revised commentary appears to disfavor a wideranging inquiry into the specific circumstances surrounding a conviction. United States v. Hernandez, 753 F.Supp. 1191, 1196 (S.D.N.Y.1990), aff'd, remanded on other grounds, 941 F.2d 133 (2d Cir.1991). ¹

This conclusion is buttressed by two additional factors. First, effective November 1, 1991, after this case was briefed and argued, the Sentencing Commission again revised the commentary to U.S.S.G. § 4B1.2. The relevant passage now advises that, when determining whether an offense qualifies under the "crime of violence" definition, a court should assess "the conduct set forth (i.e., expressly charged ) in the count of which the defendant was convicted." U.S.S.G. § 4B1.2, comment. n. 2 (emphasis added). The insertion of the parenthetical statement makes the plain meaning of the application note even clearer. In assessing a particular offense to determine if it is a crime of violence under the "catchall" provision of U.S.S.G. § 4B1.2, a sentencing court must confine its factual inquiry to those facts charged in the indictment. While the explanatory parenthetical did not become effective until after Johnson's sentencing, it must still be accorded substantial weight when interpreting the meaning of the commentary language that existed prior to its insertion.

Second, the Supreme Court's decision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), lends support for the proposition that a sentencing court is limited to an evaluation of the conduct explicitly charged in the indictment. In that case, the Court interpreted 18 U.S.C. § 924(e), which provides a definition of "crime of violence" identical to that in § 4B1.2 of the Sentencing Guidelines (without, of course, the Sentencing Commission's commentary). The Court concluded that, for purposes of § 924(e), a court should apply the "crime of violence" definition to a statutory definition of the offense without reference to the specific facts of a particular defendant's conduct. According to the Court, this interpretation is consistent with the language of the definition and the legislative history of the statute. In the words of the Court:

Congress generally took a categorical approach to predicate offenses. There was considerable debate over what kinds of offenses to include and how to define them, but no one suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the...