Johnson v. United States
| Decision Date | 24 January 2022 |
| Docket Number | No. 17-1912,17-1912 |
| Citation | 24 F.4th 1110 |
| Parties | Donnie JOHNSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Laura K. McNally, Robin V. Waters, Attorneys, Loeb & Loeb LLP, Chicago, IL, for Petitioner-Appellant.
David E. Hollar, Attorney, Office of the United States Attorney, Hammond, IN, for Respondent-Appellee.
Before Flaum, Kanne, and Scudder, Circuit Judges.
In 2004, a jury convicted Donnie Johnson of being a felon in possession of a firearm. Based on his prior convictions, the district court found that he qualified for a sentencing enhancement under the Armed Career Criminal Act (ACCA) and sentenced him to 275 months in prison. In 2015, the Supreme Court decided Samuel Johnson v. United States , holding that the so-called "residual clause" of the ACCA was unconstitutionally vague. See 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).1 Johnson then filed a motion in 2016 under 28 U.S.C. § 2255 to vacate his sentence on the grounds that it was based on the ACCA's now-defunct residual clause. The district court denied his motion, and this Court subsequently granted Johnson's request for a certificate of appealability.
Despite the Supreme Court's holding in Samuel Johnson , Johnson's sentence is proper if he has at least three prior convictions that qualify for enhancement under the provisions of the ACCA which Samuel Johnson left undisturbed (the "violent felony" and "serious drug offense" provisions). Because Johnson does have at least three such convictions, we affirm the district court's decision to deny Johnson's motion to vacate his sentence.
In August 2001, a Gary, Indiana police officer stopped a van Johnson was driving. The officer observed Johnson move from the front seat to the middle of the van. After arresting Johnson on an outstanding warrant, the officer searched the van and found a loaded .22 caliber handgun. A federal jury subsequently convicted Johnson of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
As his conviction for being a felon in possession of a firearm suggests, this was not Johnson's first run-in with the law. Relevant here are four of his prior convictions: (1) a 1982 conviction for distribution of a controlled substance, (2) a 1984 burglary conviction, (3) a 1989 criminal deviate conduct conviction, and (4) a 1990 conviction for inflicting bodily injury during an escape. Based on these convictions, the district court found that Johnson qualified for a sentence enhancement under the ACCA, which establishes a mandatory minimum sentence of 15 years (180 months) when a defendant is convicted of being a felon in possession of a firearm and has at least three convictions which qualify as "violent felon[ies]" or "serious drug offense[s]." See 18 U.S.C. § 924(e)(1). Pursuant to this finding, the district court sentenced Johnson to 275 months in prison.
Relevant to petitioner's appeal is the ACCA's definition of "violent felony," which reads:
In 2015, the Supreme Court held the last clause of this definition ("or otherwise involves conduct that presents a serious potential risk of physical injury to another") to be void for vagueness, declaring that any sentence imposed under the so-called "residual clause" violates due process. Samuel Johnson , 576 U.S. at 606, 135 S.Ct. 2551. The decision, however, left undisturbed the other provisions of the definition, id. , and, thus, a sentence enhancement under the ACCA may stand if the underlying, prior convictions qualify under the remaining definitional provisions.
Based on the Court's decision in Samuel Johnson , petitioner filed a motion pro se in the district court in 2016 to vacate his sentence. He argued, among other things, that his criminal deviate conduct and escape convictions qualified as "violent felonies" only under the ACCA's now-invalidated residual clause and that, as a result, he was entitled to resentencing.2
The district court disagreed and denied his motion, reasoning that both convictions qualified as violent felonies under subpart (i) (the "force provision") of the definition since they involve the use of force against another. Though the court declined to issue a certificate of appealability in tandem with its opinion and order, this Court subsequently granted Johnson's request for such a certificate. On appeal, Johnson challenges the district court's findings that both the criminal deviate conduct and escape convictions qualified as violent felonies under the force provision.
"Whether a prior conviction constitutes a violent felony under the ACCA is a legal conclusion that we review de novo." United States v. Fife , 624 F.3d 441, 445 (7th Cir. 2010).
Because he does not challenge the district court's finding that his drug and burglary convictions did not implicate the residual clause and thus were proper predicate convictions for a sentence enhancement under the ACCA, Johnson must succeed in showing that neither his criminal deviate conduct conviction nor his escape conviction qualifies as a proper third offense to trigger ACCA's sentence enhancement.
Courts reviewing whether a prior conviction qualifies as a violent felony or serious drug offense under the ACCA employ what is known as the categorial approach. Mathis v. United States , 579 U.S. 500, 136 S. Ct. 2243, 2248, 195 L.Ed.2d 604 (2016). Under this approach, a reviewing court looks only to the elements of the offense of conviction to determine whether such an offense categorically falls within the definitions of either a violent felony or serious drug offense as defined by the ACCA. See id. It is not the actual facts of the defendant's actions in committing the offense but, rather, the elements of the offense itself that matter for this inquiry. See id ; Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).
One complication arises, however, when the statute defining the offense of the prior conviction is disjunctive (that is, it proscribes a swath of conduct via a list of alternatives). In such a scenario, one portion of the statute may outlaw conduct clearly falling outside of the ACCA's reach while another portion outlaws conduct clearly falling within its reach. To determine whether a violation of such a statute qualifies as an ACCA predicate offense, then, a court must determine whether the statute's list contains a number of different elements pertaining to a variety of separable crimes or whether the statute's list merely contains a variety of means by which one overarching crime may be committed. Mathis , 136 S. Ct. at 2249. If it is the former, the statute is said to be "divisible," and the court must then determine the precise crime of which the defendant was convicted and compare the appropriate elements to the ACCA's definitions. Id. If, on the other hand, the court determines that the statute merely contains a list of various means by which one crime may be committed, the statute is referred to as being "indivisible" and its violation may not serve as a predicate offense under the ACCA if any one of the listed "means" of committing the offense does not qualify as a violent felony or drug offense. Id. at 2248–49, 2257.
To make this determination of "divisibility," the Supreme Court has offered a number of sources that may illuminate whether the listed alternatives are elements or means: authoritative case law from the state courts, the text of the statute itself, and, if neither of these prove helpful, the record of the prior conviction for "the sole and limited purpose of determining whether [the listed items are] element[s] of the offense." Id. at 2256–57 (alterations in original) (quoting Rendon v. Holder , 782 F.3d 466, 473–74 (9th Cir. 2015) ). If the charging instrument and the jury instructions, for instance, include all of the alternatives listed in the statute, "[t]hat is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt." Id. at 2257. By contrast, a charging instrument or jury instruction that includes only one of the statute's listed alternatives, to the exclusion of all others, would suggest that the statute's list is a list of elements, with each element pertaining to a separate crime. Id.
If a court determines the statute is divisible, it then may apply the "modified categorical approach." The Supreme Court has clarified that, "[u]nder that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. at 2249. To reiterate, this examination of the record documents is only to determine the elements of the crime for which the defendant was convicted and may not be relied upon to find that a defendant qualifies for a sentence enhancement under the ACCA because he, for instance, committed a non-violent crime in a violent way. See id. at 2253. The crime itself, divorced from the facts of the defendant's particular commission of it, still must categorically qualify as a violent felony or a serious drug offense as the ACCA defines those terms.
Johnson essentially raises the same three arguments with respect to both his criminal deviate conduct and escape convictions to show that they do not qualify as violent felonies: the statutes are indivisible,...
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...which stems from Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See Johnson v. United States , 24 F.4th 1110, 1116 (7th Cir. 2022). The categorical approach "focuses only on the elements of the crime of conviction, not the actual facts of the defendant's con......
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