United States v. Johnson

• Decision Date: 05 August 2019
• Docket Number: No. 18-3002,18-3002
• Citation: 933 F.3d 540
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Lawrence J. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

933 F.3d 540

UNITED STATES of America, Plaintiff-Appellee,

v.Lawrence J. JOHNSON, Defendant-Appellant.

No. 18-3002

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 5, 2019

Rehearing En Banc Denied October 3, 2019

ON BRIEF: Claire Cahoon Curtis, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Ranya Elzein, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges.

LARSEN, Circuit Judge.

After Lawrence Johnson pleaded guilty to being a felon in possession of a firearm, the district court sentenced him as an armed career criminal under the Armed Career Criminal Act (ACCA). Johnson appealed that determination with success; this court agreed that Johnson did not have at least three prior convictions for crimes of violence under ACCA. When the district court later resentenced Johnson, it increased his base offense level after finding that Johnson had at least two convictions for crimes of violence pursuant to the Guidelines. Johnson now appeals again, arguing that the district court improperly found that his prior convictions—one for robbery pursuant to Ohio Revised Code (ORC) § 2911.02(A)(2) and one for complicity to commit aggravated robbery under ORC §§ 2923.03(A)(2) and 2911.01(A)(1) —were crimes of violence under the Guidelines, resulting in a procedurally unreasonable sentence. We disagree and therefore AFFIRM Johnson’s sentence.

I.

In March 2016, Johnson pleaded guilty to one count of being a felon in possession of a firearm. Johnson had several prior convictions from Ohio, including a 1982 conviction for attempted robbery, a 1983 conviction for robbery, a 1997 conviction for robbery, and a 2005 conviction for complicity to commit aggravated robbery.

The Presentence Investigation Report (PSR) recommended classifying Johnson as an armed career criminal pursuant to ACCA. See 18 U.S.C. § 924(e). Johnson objected to this finding, but the district court determined that all four of Johnson’s prior convictions were ACCA predicates and sentenced him to 180 months’ imprisonment, the statutory minimum. See id.

On appeal, this court held that the 1982 attempted robbery conviction and the 1983 robbery conviction did not qualify as violent felonies under ACCA. United States v. Johnson , 708 F. App'x 245, 248–49 (6th Cir. 2017). The court explained that because the Supreme Court had invalidated the residual clause found in § 924(e)(2)(B)(ii), see Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), and because Johnson had not been convicted of any enumerated offenses, see § 924(e)(2)(B)(ii), Johnson’s sentence could stand only if his 1982 and 1983 convictions satisfied the force clause under § 924(e)(2)(B)(i). Johnson , 708 F. App'x at 247. But the court recognized that in United States v. Yates , 866 F.3d 723, 729–31 (6th Cir. 2017), this court held that ORC § 2911.02(A)(3) robbery—which uses the same language as the statute underlying Johnson’s 1982 and 1983 convictions—does not qualify as a crime of violence under § 4B1.2(a)(1) of the Guidelines as "only a minimal level of force is needed to sustain a conviction" under that statute. Johnson , 708 F. App'x at 248 (quoting Yates , 866 F.3d at 729–31 ). As Johnson no longer had three ACCA predicate convictions, the court declined to address whether Johnson’s 1997 robbery conviction (which was under a different subsection than his prior robbery conviction) or his 2005 conviction for complicity to commit aggravated robbery were ACCA predicates; the court vacated and remanded for resentencing. Id. at 249.

Johnson was resentenced in December 2017. The new PSR set his base offense level at 24 pursuant to U.S.S.G. § 2K2.1(a)(2) for having two felony convictions for crimes of violence. The report identified Johnson’s 1997 and 2005 convictions as qualifying crimes of violence under the Guidelines. Johnson submitted a sentencing memorandum, arguing that neither conviction qualified as a crime of violence, and made those same objections again at sentencing. The district court disagreed, finding that both convictions qualified as crimes of violence under the Guidelines. The court ultimately determined that Johnson’s Guidelines range was 57 to 71 months and sentenced him to 71 months’ imprisonment. Johnson now appeals, arguing that the district court imposed a procedurally unreasonable sentence by wrongly finding that his 1997 and 2005 convictions were crimes of violence.

II.

A criminal sentence must be both procedurally and substantively reasonable. United States v. Morgan , 687 F.3d 688, 693 (6th Cir. 2012). Procedural reasonableness requires the court to "properly calculate the guidelines range, treat that range as advisory, consider the sentencing factors in 18 U.S.C. § 3553(a), refrain from considering impermissible factors, select the sentence based on facts that are not clearly erroneous, and adequately explain why it chose the sentence." United States v. Rayyan , 885 F.3d 436, 440 (6th Cir. 2018) (citing Gall v. United States , 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ). Whether a prior conviction qualifies as a "crime of violence" is a question of law, which this court reviews de novo. United States v. Hawkins , 554 F.3d 615, 616 (6th Cir. 2009).

III.

We begin with the relevant provisions. The Guidelines specify that when a defendant is convicted of unlawful possession of a firearm, as Johnson was, courts shall apply a base offense level of 24 if the defendant committed the offense "subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). This section does not directly define "crime of violence." Rather, the commentary refers the reader to § 4B1.2(a). At the time Johnson was initially sentenced,¹ § 4B1.2(a) provided the following definition:

(a) The term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) 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(a)(1)–(2) (2015). Because this definitional language is essentially the same as that in ACCA, see 18 U.S.C. § 924(e)(2)(B)(i)–(ii), we look to caselaw interpreting § 924(e)(2)(B) to determine whether Johnson’s crimes are crimes of violence under the Guidelines. United States v. Gibbs , 626 F.3d 344, 352 n.6 (6th Cir. 2010).

To determine whether Johnson’s prior offenses are crimes of violence under the Guidelines, we use the "categorical approach." See Descamps v. United States , 570 U.S. 254, 260–61, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Under the categorical approach, courts look only to the statutory definitions (or elements) of the statute of conviction—not to the particular facts of the defendant’s crime. Id. at 261, 133 S.Ct. 2276. And we assume that the defendant’s conduct rested on nothing more than the least of the acts criminalized. See Johnson , 559 U.S. at 137, 130 S.Ct. 1265. If the least of those acts constitutes a crime of violence, the conviction qualifies. United States v. Burris , 912 F.3d 386, 392 (6th Cir. 2019) (en banc).

When a statute sets out a single set of elements, the statute is indivisible, and courts apply the categorical approach to the statute in its entirety. Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2248, 2251, 195 L.Ed.2d 604 (2016). But when a statute sets out multiple crimes with different elements, the statute is divisible, id. at 2249, and if one of the crimes is a crime of violence and others are not, courts use the "modified categorical approach," to determine which subsection formed the basis of the defendant’s conviction. Burris , 912 F.3d at 393 (quoting Descamps , 570 U.S. at 257, 133 S.Ct. 2276 ).

Here, neither Johnson nor the government expressly takes a position on whether Johnson’s statutes of conviction are indivisible or divisible, but their briefing suggests agreement that the statutes are divisible. There is no dispute, furthermore, as to the subsections that set forth the elements of Johnson’s convictions. Because neither Johnson nor the government have argued the issue, we will proceed on the assumption that the relevant statutes, ORC §§ 2911.02(A), 2911.01(A), and 2923.03(A), are divisible.

A. The 1997 Conviction for Robbery

We first address whether Johnson’s 1997 robbery conviction qualifies as a predicate offense under the Guidelines’ elements clause. Johnson was convicted under ORC § 2911.02(A)(2), which states that "[n]o person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall ... [i]nflict, attempt to inflict, or threaten to inflict physical harm on another." To qualify as a predicate offense under the Guidelines’ elements clause, a conviction must have as an element "the use, attempted use, or threatened use of physical force against the person of another." U.S.S.G. § 4B1.2(a)(1). For Ohio’s statute to qualify, therefore, Ohio’s definition of "physical harm" must require at least the "physical force" contemplated by the Guidelines.

1. Use of Force

In Johnson v. United States , 559 U.S. at 140, 130 S.Ct. 1265, the Supreme Court defined "physical force" in the ACCA context to mean "violent force—that is, force capable of causing physical pain or injury to another person." Mere unwanted touching, for example, would not suffice. Id. at 141–42, 130 S.Ct. 1265. We have used this same definition of physical force in interpreting the identical term in the Guidelines’ elements clause. See United States v. Evans , 699 F.3d 858, 863 (6th Cir. 2012), abrogated on other grounds by United States v. Havis , 927 F.3d 382 (6th Cir. 2019) (en banc) (per curiam). So,...