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.
Cahoon Curtis, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for
Elzein, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio,
Before: DONALD, LARSEN, and NALBANDIAN, Circuit Judges.
LARSEN, CIRCUIT JUDGE.
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.
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.
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.
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.
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.
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