United States v. Johnson

Citation899 F.3d 191
Decision Date07 August 2018
Docket NumberNo. 11-1615,11-1615
Parties UNITED STATES of America v. Dominique JOHNSON, Appellant
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Zane David Memeger, United States Attorney, Alicia M. Freind, Assistant United States Attorney, Nancy B. Winter, Assistant United States Attorney, Robert A. Zauzmer, Assistant United States Attorney [ARGUED], Office of United States Attorney, 615 Chestnut Street, Suite 1250, Philadelphia, PA 19106, Counsel for Appellee

James V. Wade, Federal Public Defender, Ronald A. Krauss, Assistant Federal Public Defender [ARGUED], Office of Federal Public Defender, 100 Chestnut Street, Suite 306, Harrisburg, PA 17101, Counsel for Appellant

Dominique Johnson, Allenwood USP, P.O. Box 3000, White Deer, PA 17887, Pro Se Appellant

Before: JORDAN, SCIRICA and FISHER, Circuit Judges


FISHER, Circuit Judge.

Dominique Johnson was convicted of crimes related to his participation in a string of bank robberies and sentenced to 835 months' imprisonment. After we affirmed his conviction, Johnson filed a petition for writ of certiorari. The Supreme Court granted the petition, vacated our judgment, and remanded for reconsideration in light of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). After reviewing Johnson’s arguments under Alleyne —as well as other arguments he raises—we will affirm.


During the late spring and summer of 2009, Dominique Johnson participated in five bank robberies in the Philadelphia area. In early May, Johnson committed the first robbery by himself, carrying a BB gun. In late May, he committed the second robbery, again carrying a BB gun, but this time assisted by two others: Gregory Lawrence and Jerry Taylor.

In June, Johnson bought a .40 caliber Glock pistol. Johnson, Lawrence, and Taylor discussed another bank robbery, with the plan being that Taylor would commit the robbery using Johnson’s newly-acquired pistol. Johnson and Lawrence advised Taylor on how to commit the robbery.

In early July, the three friends (joined by a fourth who served as the getaway driver) executed their plan and committed the third robbery. Johnson served as the lookout while Taylor ran into the bank and demanded money. During the robbery, Taylor pointed his gun at one teller and hit another teller with it. In mid-July, the same group committed the fourth robbery in the same fashion: Taylor robbed the bank while brandishing the pistol, and Johnson served as the lookout.

After that, Lawrence and Taylor decided not to participate in any more robberies. Johnson recruited two others, Amin Dancy and Christopher Montague, to commit a fifth robbery at the end of July. As before, Johnson served as the lookout, and someone else (this time Dancy) went into the bank and demanded money while brandishing Johnson’s pistol.

The FBI investigated the robberies and eventually arrested Johnson. A jury convicted him of two counts of conspiracy to commit armed bank robbery, 18 U.S.C. § 371 ; one count of armed bank robbery, 18 U.S.C. § 2113(d) ; four counts of aiding and abetting armed bank robbery, 18 U.S.C. §§ 2 and 2113(d) ; and three counts of aiding and abetting the use and carrying of a firearm during a crime of violence, 18 U.S.C. §§ 2 and 924(c)(1).

For the first count of using a firearm during a crime of violence, the District Court imposed a sentence of seven years pursuant to 18 U.S.C. § 924(c)(1)(A)(ii), which provides that if a person "uses or carries a firearm ... in furtherance of" a "crime of violence" and "the firearm is brandished," the minimum sentence is seven years. For the second and third firearm counts, the court imposed two 25-year sentences pursuant to 18 U.S.C. § 924(c)(1)(C), which provides that "[i]n the case of a second or subsequent conviction under this subsection, the person shall ... be sentenced to a term of imprisonment of not less than 25 years." Johnson’s total sentence for all ten counts was 835 months of imprisonment, or nearly seventy years.

Johnson appealed, and we affirmed his convictions and sentence in a non-precedential opinion. United States v. Johnson , 515 F. App'x 183, 186-88 (3d Cir. 2013). Johnson then petitioned the Supreme Court for a writ of certiorari, which was granted. Johnson v. United States , 572 U.S. 1012, 134 S.Ct. 1538, 188 L.Ed.2d 553 (2014). The Court entered a "grant, vacate, and remand" order stating: "Judgment vacated, and case remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013)." Alleyne had been decided three months after Johnson’s appeal to this Court concluded.

On remand, we granted Johnson’s motion to proceed pro se and he filed a brief raising numerous points of error, including that his § 924(c) sentences should be vacated under Alleyne . In its response, the Government relied heavily on our post- Alleyne opinion, United States v. Lewis , 766 F.3d 255 (3d Cir. 2014). However, before we heard Johnson’s appeal, we reheard Lewis en banc and decided it differently. United States v. Lewis , 802 F.3d 449 (3d Cir. 2015) (en banc). In light of Lewis , we determined that Johnson needed counsel after all. We appointed counsel and asked for supplemental briefing. Johnson’s counseled brief raised four issues: two relating to Alleyne , and two relying on other Supreme Court cases issued during the pendency of his appeal. We address those four issues first, and then turn to the arguments in Johnson’s pro se brief.

A. Alleyne Arguments

Johnson argues that the District Court committed Alleyne errors by not submitting to the jury the question of brandishing or the question of whether two of the three § 924(c) convictions were second or subsequent convictions.

To explain the significance of Alleyne , we begin with Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). There, the Supreme Court ruled that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S.Ct. 2348. Subsequently, in Harris v. United States , 536 U.S. 545, 567-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), the Court ruled that Apprendi did not apply to facts that increased the mandatory minimum—only the maximum. Finally, in Alleyne , the Court concluded that Harris was inconsistent with Apprendi and overruled it, holding that "there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum." Alleyne , 570 U.S. at 116, 133 S.Ct. 2151.

The jury "indicated on the verdict form that Alleyne had used or carried a firearm during and in relation to a crime of violence, but did not indicate a finding that the firearm was brandished." Id. at 104, 133 S.Ct. 2151 (internal quotation marks, alterations, and citation omitted). The using-or-carrying finding triggered the five-year mandatory minimum under § 924(c)(1)(A)(i). Id. The judge at sentencing found, by a preponderance of the evidence, that the firearm was brandished, and sentenced Alleyne to the seven-year mandatory minimum for brandishing under § 924(c)(1)(A)(ii). Id. The Supreme Court vacated and remanded. Id. at 117, 133 S.Ct. 2151. The Court ruled that because "a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense," it must be found by a jury beyond a reasonable doubt. Id. at 112, 133 S.Ct. 2151.

1. Brandishing

Here, the issue of brandishing was not submitted to the jury, but determined by the judge at sentencing. The seven-year mandatory minimum for brandishing, 18 U.S.C. § 924(c)(1)(A)(ii), is two years longer than for using and carrying, id. at § 924(c)(1)(A)(i). The parties agree that this was error under Alleyne . When analyzing Alleyne error, we first "address ... whether the error was a sentencing error or a trial error." Lewis , 802 F.3d at 453. We then determine whether the defendant preserved his objection to the Alleyne error. If he did, the standard of review is plain error; if not, the harmless error doctrine applies. Id. at 456-57.

a. Trial Error Versus Sentencing Error

Sentencing error occurs when a defendant is charged with and convicted of one crime, but sentenced for another. According to the plurality opinion, that happened in Lewis : the defendant was charged with using or carrying a firearm in relation to a crime of violence in violation of § 924(c) generally, but the judge sentenced him for brandishing in violation of § 924(c)(a)(A)(ii) specifically. Lewis , 802 F.3d at 455. The error occurred at sentencing, because "the defendant was sentenced for a crime for which he was neither indicted nor tried ." Id. at 455 n.6.

Trial error, by contrast, occurs when the defendant is charged with, convicted of, and sentenced for a crime, but one of the elements of that crime is not submitted to the jury. That occurred in United States v. Vazquez : the defendant was charged with conspiracy to possess and distribute more than five kilograms of cocaine, the jury was not instructed to make factual findings regarding the amount of drugs, and the defendant was sentenced based on drug quantities the judge found at sentencing. 271 F.3d 93, 96-97 (3d Cir. 2001) (en banc). The error occurred at trial, because the jury was given incomplete instructions. Id. at 101.2

Here, determining whether the Alleyne error was trial or sentencing error requires a close reading of the indictment. Johnson was convicted of using or carrying a firearm without a jury finding of brandishing, but he was sentenced for brandishing. If the indictment charged brandishing, there was trial error. Vazquez , 271 F.3d at 101-02. If the indictment did not charge brandishing, there was sentencing...

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