United States v. Lawrence Johnson
United States v. Lawrence Johnson
Opinion
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.
*542
The Presentence Investigation Report (PSR) recommended classifying Johnson as an armed career criminal pursuant to ACCA.
See
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
,
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
,
*543 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
To determine whether Johnson's prior offenses are crimes of violence under the Guidelines, we use the "categorical approach."
See
Descamps v. United States
,
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. ----,
Here, neither Johnson nor the government expressly takes a position on whether Johnson's statutes of conviction are indivisible *544 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
,
Ohio defines "physical harm" as "any injury, illness, or other physiological impairment, regardless of its gravity or duration." ORC § 2901.01(A)(3). Our court has previously examined this phrase. In
Evans
,
Evans
is not alone in construing Ohio's definition of "physical harm" to require violent force. In
United States v. Gatson
,
Evans
and
Gatson
construed statutory language with little distinction from the one before us. The assault statute analyzed in
Evans
says that "[n]o person shall knowingly cause or attempt to cause physical harm to another."
Johnson offers two cases to try to establish that something less than violent force can produce a conviction under ORC § 2911.02(A)(2), but neither persuades. First, Johnson points to
State v. Reese
, No. 85902,
Johnson next offers
State v. Frunza
, No. 82053,
Finally, Johnson argues that this court's decision in
Yates
,
2. Mens Rea
Thus far we have concluded that a conviction under ORC § 2911.02(A)(2) satisfies the necessary force requirement. But our inquiry continues because Johnson argues that his robbery conviction lacks the requisite mens rea to qualify as a crime of violence. Specifically, he claims both that his robbery conviction required only recklessness and that recklessness is an insufficient mental state for a conviction to qualify as a crime of violence. The merits of his first argument are unclear
2
but his second argument is foreclosed by this court's precedent. In
Voisine v. United States
, --- U.S. ----,
In sum, Evans and Gatson hold that Ohio's definition of "physical harm" requires the level of force necessary to qualify as a crime of violence under the Guidelines' elements clause. And Verwiebe holds that a crime requiring only recklessness can constitute a crime of violence under the Guidelines' elements clause. The district court correctly applied our precedents and held that Johnson's conviction for robbery under ORC § 2911.02(A)(2) was a crime of violence under U.S.S.G. § 4B1.2(a). Accordingly, we need not address whether this conviction would qualify as an enumerated offense or under the Guidelines' residual clause.
B. The 2005 Conviction for Complicity to Commit Aggravated Robbery
We next turn to Johnson's conviction for complicity to commit aggravated robbery. The aggravated robbery statute under which Johnson was convicted states:
No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall ... [h]ave a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it.
ORC § 2911.01(A)(1). This court held in
United States v. Patterson
,
Johnson was convicted of complicity under ORC § 2923.03(A)(2), which states that "[n]o person, acting with the kind of culpability required for the commission of an offense, shall ... [a]id or abet another in committing the offense." But the underlying substantive offense-here, aggravated robbery-must have been either attempted or completed for a complicity conviction to stand. ORC § 2923.03(C). Thus, Johnson could not have been convicted of complicity to commit aggravated robbery unless the elements of aggravated robbery had been proved. And aggravated robbery, as made clear in
Patterson
, includes as an element the use, attempted use, or threatened use of physical force. Johnson's conviction for complicity to commit aggravated robbery thus necessarily includes as an element the use, attempted use, or threatened use of physical force.
See
United States v. Gloss
,
Johnson's argument to the contrary does not convince us otherwise. He argues that an "Ohio conviction for complicity cannot qualify" as a crime of violence because it encompasses a "broad[er] range of conduct than what satisfies the Guidelines definition of use of force." But this is not so. Our analysis above makes clear that it simply does not matter how Ohio defines aiding and abetting, so long as that conviction requires proof of a crime that does constitute a crime of violence.
Cf.
Gloss
,
To the extent Johnson's argument is that Ohio defines aiding and abetting differently than the Guidelines commentary , this argument falls short because it relies on the faulty assumption that the Guidelines' commentary is what brings Johnson's aiding and abetting offense into § 4B1.2(a). The commentary does state that a crime of violence includes "the offenses of aiding and abetting." U.S.S.G. § 4B1.2, Application Note 1 (2015). But as our reasoning above makes clear, we need not look to the commentary to find that Johnson's conviction for complicity to commit aggravated robbery is a crime of violence. 3 Instead, such a result is compelled by the express text of § 4B1.2(a).
*548 In conclusion, the district court correctly found that Johnson's conviction for complicity to commit aggravated robbery was a crime of violence pursuant to § 4B1.2(a). We therefore need not address whether this conviction would qualify as an enumerated offense or under the Guidelines' residual clause.
* * *
We AFFIRM the district court's judgment.
We note that when sentencing a defendant, district courts use the version of the Guidelines "in effect on the date the defendant is sentenced."
Johnson argues that, under
State v. Colon
,
We note that such analysis might be problematic.
See
Havis
,
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Lawrence J. JOHNSON, Defendant-Appellant.
- Cited By
- 11 cases
- Status
- Published