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United States v. Johnson

United States Court of Appeals, Sixth Circuit

August 5, 2019

United States of America, Plaintiff-Appellee,
v.
Lawrence J. Johnson, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:15-cr-00406-1-Patricia A. Gaughan, District Judge.

         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.

          OPINION

          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 Fed.Appx. 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 (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 Fed.Appx. 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 Fed.Appx. 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 (2007)). Whether a prior ...


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