US v. Johnson, 88-CR-20054-BC.

• Decision Date: 09 January 1989
• Docket Number: No. 88-CR-20054-BC.,88-CR-20054-BC.
• Parties: UNITED STATES of America, Plaintiff, v. MacNeal JOHNSON a/k/a McNeal Johnson a/k/a Mack Neal Johnson, Defendant.
• Court: U.S. District Court — Western District of Michigan

704 F. Supp. 1403

UNITED STATES of America, Plaintiff, v. MacNeal JOHNSON a/k/a McNeal Johnson a/k/a Mack Neal Johnson, Defendant.

No. 88-CR-20054-BC.

United States District Court, E.D. Michigan, N.D.

January 9, 1989.

Michael J. Hluchaniuk, Asst. U.S. Atty., Bay City, Mich., for plaintiff.

Mr. Benjamin L. Crossley, W.F. Allen & Associates, Saginaw, Mich., for defendant.

MEMORANDUM OPINION

CHURCHILL, District Judge.

In this criminal case, the Court previously entered a memorandum opinion accompanied by an opinion and order of detention detailing the various interpretations of the statutory "crime of violence" concept. Defendant MacNeal Johnson's motion to dismiss the indictment in this case requires the Court to undertake yet another foray into the realm of statutory terminology. Specifically, the Court must ascertain what Congress intended when it spoke of a "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) (originally codified at 18 U.S.C. App. § 1202).

Because the Court recited the facts of this case in exhaustive detail in the prior memorandum opinion and order, only a brief synopsis of the controlling facts is necessary here. On October 19, 1988, the Grand Jury returned an indictment charging Defendant Johnson as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Additionally, the indictment charged a "violation" of 18 U.S.C. § 924(e), the Armed Career Criminal Act charge that carries with it a mandatory 15-year minimum sentence.¹ See 18 U.S.C. § 924(e). In his motion to dismiss the indictment, Defendant Johnson makes a two-pronged facial attack upon the indictment.

Defendant Johnson first contends that controlling Sixth Circuit precedent obviates the need to include an Armed Career Criminal Act ("ACCA") charge in an indictment. Thus, argues Defendant Johnson, the indictment in the case at bar is technically improper because it incorporates an ACCA charge. Also, Defendant Johnson insists that the ACCA is of no moment in his case because he simply has not been previously convicted of three "violent felonies" or "serious drug offenses" necessary to trigger the ACCA. See 18 U.S.C. § 924(e). The Court will address each of these two arguments separately.

I. Technical Impropriety of ACCA Charge in an Indictment

Conceptualization of the ACCA as either a separate offense or merely a sentence enhancement device has proved troublesome for the various United States Circuit Courts of Appeals. This difficulty is strikingly apparent in the Sixth Circuit's treatment of the ACCA. On February 26, 1988, a divided Sixth Circuit panel held that the ACCA creates a separate offense that must be charged in the indictment and established beyond a reasonable doubt. See United States v. Brewer, 841 F.2d 667 (6th Cir.1988). Under this standard, the Government would have to seek and obtain an indictment including an ACCA charge if it wished to have the sentencing court impose the ACCA mandatory minimum sentence on a convicted felon in possession.

Several months later, however, the Brewer court reversed itself on rehearing and ruled that the ACCA is merely a sentence enhancement device that need not be charged in the indictment and proved beyond a reasonable doubt. See United States v. Brewer, 853 F.2d 1319 (6th Cir. 1988) (on rehearing). According to Judge Krupansky's majority opinion on rehearing, the ACCA reflects congressional intent "to enact a statute that would delegate sentencing authority to a trial judge to enhance the sentence of a recidivist offender." Id. at 1323. Thus, the rule in the Sixth Circuit per Brewer on rehearing is that the ACCA charge need not be included in the indictment nor established at trial beyond a reasonable doubt. Rather, the Court is assigned the responsibility of determining whether a felon in possession can be sentenced under the ACCA.

The indictment including the ACCA charge was returned in this case soon after the Sixth Circuit reversed its original Brewer holding. While Brewer on rehearing unequivocally indicates that the Government would not have been precluded from seeking ACCA enhancement even if the indictment did not contain an ACCA charge, the Court finds that the Sixth Circuit's Brewer decision on rehearing does not render the indictment in this case fatally defective in that the indictment contains an ACCA charge. The appropriate remedy for the technical mistake in this case is simply to strike the ACCA reference from the face of the indictment as surplusage.² See generally Fed.R.Crim.P. 7(d).

II. Application of the A.C.C.A. in the Case at Bar

Striking of the ACCA reference from the indictment does not solve the more fundamental issue raised by Defendant Johnson. That is, the Court's act of striking the ACCA citation from the indictment still leaves Defendant Johnson exposed to ACCA sentence enhancement in the event that he is convicted of the basic felon in possession charge. See generally Brewer, 853 F.2d 1319 (on rehearing). The Government, in fact, has filed a formal notice of its intention to seek ACCA sentence enhancement in this case. See Government Notice (Nov. 9, 1988). Thus, the Court must address Defendant Johnson's contention that his prior felony convictions do not include three "serious drug offenses" or "violent felonies" necessary for ACCA sentence enhancement.³ Cf. 18 U.S.C. § 924(e)(1). Before examining each of Defendant Johnson's seven⁴ felony convictions, the Court must define the parameters constraining its analysis.

A. Methodology for Identifying "Violent Felonies"

The principle dispute raised by the parties from an analytical standpoint is whether "violent felonies" are defined by reference to the elements of the generic offenses, or by reference to the specific conduct of the individual in the course of committing the felonies. Contrary to their positions on this precise question in the context of "crimes of violence," see United States v. Johnson, 704 F.Supp. 1398 (E.D. Mich.1988), the Government argues that the individual's conduct determines whether a "violent felony" occurred, and Defendant Johnson asserts that the elements of the generic offenses control the "violent felony" inquiry. In the Court's prior opinion, the Government carried the issue with its position that the generic offense elements determine whether a crime is one "of violence." See id. at 1402; see also United States v. Jones, 651 F.Supp. 1309 (E.D.Mich.1987). Conversely, the Government now urges the Court to examine Defendant Johnson's actual conduct in each instance in the course of deciding whether his past convictions are for "violent felonies."⁵

With respect to the ACCA "violent felony" concept, two circuits have delved extensively into the ACCA's legislative history only to reach the single conclusion that "violent felonies" are defined in terms of a generic offense's elements. See United States v. Headspeth, 852 F.2d 753 (4th Cir.1988); United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988).⁶ According to the Headspeth court, ambiguity in the statutory language compels the conclusion that "the catchall, `otherwise' clause of 18 U.S. C. § 924(e)(2)(B)(ii) must be limited in its application to offenses which, as defined, pose by their very nature a serious potential risk of injury to another." Headspeth, 852 F.2d at 759 (emphasis in original). Similarly, the Sherbondy court reasoned that neither subsection (i) nor subsection (ii) of the "violent felony" definition permits inquiry into individual conduct:

The answer to how section 924(e) should be construed is not readily apparent. The arguments in favor of a categorical approach, rather than one that requires an examination of the facts and circumstances of the particular criminal occurrence, are not overwhelming. Still, we believe it apparent that the weight of reason and precedent favors the former.

Sherbondy, 865 F.2d at 1010. In support of its conclusion, the Sherbondy court cited Headspeth with approval and noted that "it is unlikely that Congress would implicitly authorize, without any express language in the ACCA, ad hoc mini-trials regarding an individual's prior criminal conduct. The problems with such hearings are evident." Id. at 1008. The Court emphatically agrees with the logic and holding of Sherbondy; there is no reason to analyze individual conduct for ACCA sentence enhancement purposes. Having resolved this crucial issue, the Court must turn to consideration of Defendant Johnson's various felony convictions.

B. Analysis of Defendant Johnson's Seven Felony Convictions

Defendant Johnson cannot be sentenced under the ACCA unless he has three prior convictions for "serious drug offenses" and/or "violent felonies." See 18 U.S.C. § 924(e). Each of these two terms has a precise statutory definition. Congress defined a "serious drug offense" in the following language:

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance ..., for which a maximum term of imprisonment of ten years or more is prescribed by law.

18 U.S.C. § 924(e)(2)(A)(ii) (subsection (i) omitted merely because Defendant Johnson has no prior federal convictions). A "violent felony" is statutorily defined in the following fashion:

any crime 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). With these two categories of felony offenses in focus, the Court must determine whether Defendant Johnson's record meets the ACCA requirements.

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