18-3755 Johnson v. United States

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 21st day of April, two thousand twenty-two.

PRESENT: AMALYA L. KEARSE, JOHN M. WALKER, JR., RICHARD J. SULLIVAN, Circuit Judges. _____________________________________

JAMES JOHNSON,

Petitioner-Appellant,

v. No. 18-3755

UNITED STATES OF AMERICA,

Respondent-Appellee.

_____________________________________ For Petitioner-Appellant: Yuanchung Lee, Federal Defenders of New York, Inc., New York, NY.

For Respondent-Appellee: Scott Hartman, Won S. Shin, Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY.

Appeal from the United States District Court for the Southern District of

New York (Cathy Seibel, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the order of the district court is VACATED

and the case is REMANDED.

Petitioner-Appellant James Johnson appeals an order of the district court

(Seibel, J.) denying his motion to vacate his conviction and sentence for violating

(c). Johnson was arrested for his involvement in a street gang that

engaged in narcotics trafficking, robbery, murder, and attempted murder in and

around Yonkers, New York. Pursuant to a plea agreement, Johnson pleaded

guilty to one count of conspiracy to violate federal racketeering laws in violation

of

(d) (“RICO Conspiracy”) and one count of brandishing a firearm

during and in relation to a crime of violence in violation of 18 U.S.C.

2 § 924(c)(1)(A)(ii). The RICO Conspiracy count had two objects: (1) the

attempted murder of a rival gang member and (2) a conspiracy to distribute

marijuana. The predicate crime of violence for the section 924(c) count was the

RICO conspiracy. The district court sentenced Johnson to a total of 194 months’

imprisonment – 110 months on the RICO Conspiracy count followed by 84 months

on the firearms count.

After Johnson filed a notice of appeal, Johnson’s counsel filed an Anders brief

on the grounds that there were no non-frivolous issues to be raised on appeal; the

government thereafter moved to dismiss the appeal based on the appellate waiver

in Johnson’s plea agreement. This Court granted defense counsel’s Anders

motion and dismissed Johnson’s appeal.

Ten months later, Johnson filed a pro se motion to vacate his convictions

pursuant to

. In that motion, Johnson challenged the validity of

his section 924(c) conviction, among other things. The district court denied

Johnson’s motion and declined to issue a certificate of appealability. Johnson

then filed a pro se notice of appeal and sought a certificate of appealability from

this Court.

3 While Johnson’s request for a certificate of appealability was pending, the

Supreme Court decided United States v. Davis,

(2019), which held

that the “residual clause” of section 924(c) is unconstitutionally vague. See

. Thus, the “elements clause” is the only remaining valid definition of a

crime of violence for purposes of section 924(c). This Court then decided United

States v. Barrett,

(2d Cir. 2019), which held that robbery conspiracy is

not a crime of violence for purposes of section 924(c). See

at 127–28. In

January 2020, Johnson, now represented by counsel, filed a renewed certificate of

appealability application, which the government did not oppose and which a

motions panel of this Court granted “on the issue of whether [Johnson’s]

(c) conviction can be sustained in light of United States v. Davis.” ECF No. 51.

We address that issue now.

Section 924(c) makes it a crime to use or carry a firearm during and in

relation to, or to possess a firearm in furtherance of, a “crime of violence” or a

“drug trafficking crime.”

(c)(1)(A). The purported “crime of

violence” on which Johnson’s section 924(c) conviction is predicated is RICO

Conspiracy, which this Court recently held “is not a crime of violence” and

therefore is not a “valid predicate[] for [a section] 924(c) charge[].” United States

4 v. Capers,

, 119–20 (2d Cir. 2021). In light of these holdings, we vacate

the district court’s denial of Johnson’s section 2255 petition and remand to the

district court for it to vacate Johnson’s section 924(c) conviction and resentence

him.

Accordingly, we VACATE the order of the district court, and we REMAND

for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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