United States v. Johnson

• Decision Date: 11 April 2012
• Docket Number: 10–5778.,Nos. 10–5691,s. 10–5691
• Parties: UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant, v. Derrick JOHNSON, aka Derik Johnson, aka Jalidawud Abdullah, aka Mutee Abdullah Jalidawud, aka Jalidawud Mutee Abdullah, Defendant–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

675 F.3d 1013

UNITED STATES of America, Plaintiff–Appellee/Cross–Appellant,

v.Derrick JOHNSON, aka Derik Johnson, aka Jalidawud Abdullah, aka Mutee Abdullah Jalidawud, aka Jalidawud Mutee Abdullah, Defendant–Appellant/Cross–Appellee.

Nos. 10–5691

10–5778.

United States Court of Appeals, Sixth Circuit.

April 11, 2012.

ON BRIEF: Stephen B. Shankman, April R. Goode, Office of the Federal Public Defender, Memphis, Tennessee, for Appellant. Alexia M. Fulgham, Assistant United States Attorney, Memphis, Tennessee, for Appellee.Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.

OPINION

GRIFFIN, Circuit Judge.

Following a jury trial, defendant Derrick Johnson was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). In this sentencing appeal, Johnson asserts that the district court erred in ordering his federal and state-court sentences to be served consecutively without proper articulation. On cross-appeal, the government contends that the district court erred in refusing to sentence Johnson as an “armed career criminal” under 18 U.S.C. § 924(e). For the reasons that follow, we find the government's cross-appeal meritorious and, accordingly, vacate Johnson's sentence and remand for resentencing. In view of our disposition, we dismiss as moot defendant's appeal.

I.

Johnson was convicted of being a felon in possession of a firearm on December 16, 2009. Soon thereafter, a presentence investigation report (“PSR”) was compiled, recommending an advisory Guidelines range of 210 to 262 months' imprisonment, well-above the statutory maximum of 120 months. 18 U.S.C. § 924(a)(2). The government filed objections to the PSR, asserting that Johnson qualified as an “armed career criminal,” requiring a mandatory minimum sentence of fifteen years' imprisonment. 18 U.S.C. § 924(e)(1). Specifically, the government asserted that Johnson's Missouri conviction for third-degree assault was Johnson's third “violent felony,” as defined in 18 U.S.C. § 924(e)(2)(B).

At sentencing, the district court rejected the government's argument that Johnson qualified as an armed career criminal, noting that Missouri's third-degree assault statute punishes reckless as well as intentional conduct. Then, after assessing the factors set forth in 18 U.S.C. § 3553(a), the court imposed the statutory maximum sentence of 120 months' imprisonment, to be served consecutively to Johnson's state-court sentence for probation violation. Following entry of final judgment, both Johnson and the government filed timely appeals.

II.

The government argues that the district court erred in failing to sentence Johnson as an armed career criminal. We agree, requiring that we vacate Johnson's sentence and remand for resentencing. Accordingly, we need not address Johnson's issues on appeal.¹

The Armed Career Criminal Act (“ACCA”) requires a fifteen-year mandatory minimum sentence for defendants convicted of three or more “serious drug offense[s]” or “violent felon[ies].” 18 U.S.C. § 924(e)(1).² An offense is considered a “violent felony” if (1) it “has as an element the use, attempted use, or threatened use of physical force against the person of another,” (2) “is burglary, arson, ... extortion, [or] involves [the] use of explosives,” or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Whether a prior conviction qualifies as a “violent felony” is a question of law we review de novo. United States v. Benton, 639 F.3d 723, 729 (6th Cir.2011).

“[I]n determining the nature of a defendant's prior conviction, we apply a ‘categorical’ approach, meaning that we look at the statutory definition of the crime of conviction, not the facts underlying that conviction, to determine the nature of the crime.” United States v. Ford, 560 F.3d 420, 421–22 (6th Cir.2009). If, however, “it is possible to violate a criminal law in a way that amounts to a crime of violence and in a way that does not, we may look at the indictment, guilty plea and similar documents to see if they ‘necessarily’ establish the nature of the prior offense.” ³ Id. at 422. Reference to such documents is often referred to as the “modified categorical approach.” Johnson v. United States, ––– U.S. ––––, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010).

In Missouri, the crime of third-degree assault is defined as follows:

1. A person commits the crime of assault in the third degree if:

(1) The person attempts to cause or recklessly causes physical injury to another person; or

(2) With criminal negligence the person causes physical injury to another person by means of a deadly weapon; or

(3) The person purposely places another person in apprehension of immediate physical injury; or

(4) The person recklessly engages in conduct which creates a grave risk of death or serious physical injury to another person; or

(5) The person knowingly causes physical contact with another person knowing the other person will regard the contact as offensive or provocative; or

(6) The person knowingly causes physical contact with an incapacitated person, as defined in section 475.010, RSMo, which a reasonable person, who is not incapacitated, would consider offensive or provocative.

Mo. Ann. Stat. § 565.070.1(1)–(6). Because Johnson had twice committed third-degree assault against a family or household member, his third conviction for this offense was classified as a class D felony.⁴ Id., § 565.070.4.

In this case, the government concedes that Missouri's third-degree assault is not a “violent felony” under the categorical approach. Indeed, this crime encompasses a wide range of conduct, some of which is merely reckless. See United States v. McMurray, 653 F.3d 367, 377 (6th Cir.2011) (holding that “recklessly causing serious bodily injury to another does not qualify as a ‘violent felony’ ” under the ACCA). Accordingly, pursuant to the modified categorical approach, the court “may consider the indictment, the plea agreement, the plea colloquy or ‘comparable judicial record[s]’ ” to determine the nature of the offense. United States v. Mosley, 575 F.3d 603, 606 (6th Cir.2009) (quoting Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)).

Johnson was indicted under subsection 1.1 of Missouri's third-degree assault statute, which provides: “A person commits the crime of assault in the third degree if ... [t]he person attempts to cause or recklessly causes physical injury to another person[.]” Mo. Ann. Stat. § 565.070.1(1). Because this subsection punishes both reckless and intentional conduct, Johnson asserts that his conviction cannot constitute a violent felony. Johnson, however, was never charged with reckless conduct. The criminal information and its amended versions make clear that Johnson was only charged with the “attempt [ ] to cause physical injury” to another. Indeed, the jury was not instructed that it could convict Johnson based upon a finding of recklessness; rather, the jury was required to find that Johnson “attempted to cause physical injury” in order to return a guilty verdict. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (noting that a court may look at the indictment and jury instructions to determine whether a defendant was convicted of a violent felony).

Under the modified categorical approach, Johnson asserts that judicial records may be analyzed to determine which subsection of a statute was charged, but not to determine which portion of a subsection was charged. This argument is meritless. “Just because a state legislature chooses to place a variety of proscribed acts in one statute ( or even one subsection of a statute ) does not mean that all of the listed acts must be classified as one category of offense for purposes of defining a [violent felony] under federal law.” Mosley, 575 F.3d at 606 (emphasis added). “The ‘categorical approach requires courts to choose the right category,’ ... and sometimes that choice requires the federal courts to draw distinctions that the state law on its face does not draw.” Id. (quoting Chambers v. United States, 555 U.S. 122, 126, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009)). In this case, subsection 1.1 of Missouri's third-degree assault statute may be violated in one of two ways: through a purposeful attempt to cause physical injury, or through reckless conduct actually resulting in physical injury. Accordingly, we must examine the indictment and jury instructions to establish the “nature of the offense” charged. Id. In this case, Johnson was unambiguously charged with and convicted of the intentional attempt to cause physical injury to another.

Having clarified the nature of the crime at issue, we must determine whether it constitutes a “violent felony.” The government contends that Johnson's conviction for third-degree assault qualifies as a violent felony because it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). This statutory language, often referred to as the “residual clause,” Chambers, 555 U.S. at 124, 129 S.Ct. 687, “is not intended as a catch-all provision.” Benton, 639 F.3d at 731. “Instead, ‘the provision's listed examples—burglary, arson, extortion, or crimes involving the use of explosives—illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that ‘presents a serious potential risk of physical injury to another.’ ” Id. (quoting Begay v. United States, 553 U.S. 137, 142, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)). Therefore, an offense is a violent felony if it is “roughly similar, in kind as well as in degree of risk posed,” to the listed examples, which typically involve “purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 143–45, 128 S.Ct. 1581.⁵ In addition, we must consider whether...