Johnson v. United States, 779 F.3d 125

In Aug. 1998 Johnson robbed a bank with a gun; indicted on three counts: bank robbery (Count One, §2113(a)), armed bank robbery (Count Two, §2113(d)), and using/carrying a firearm in relation to a crime of violence (§924(c), Count Three).
A jury convicted Johnson on all three counts; he received concurrent sentences on Counts One and Two and a consecutive 300-month sentence on Count Three.
On direct collateral review this Court vacated Count One as multiplicitous with Count Two; Count Two remained and aggregate sentence was unchanged.
Johnson filed a §2255 petition arguing Count Three must be vacated because the predicate Count One conviction was vacated, and also asserted ineffective assistance of prior counsel.
The district court denied relief; Johnson appealed. The central legal question was whether a §924(c) conviction requires a separate, subsisting conviction for the predicate crime of violence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §924(c) requires a separate conviction for the predicate crime	Johnson: Vacatur of Count One eliminates the predicate, so Count Three must fall	Gov't: §924(c) needs only legally sufficient proof that the predicate crime occurred, not a separate conviction	Court: §924(c) requires legally sufficient proof the predicate crime occurred but does not require a separate conviction
Whether vacatur for multiplicity undermines jury factual findings supporting §924(c)	Johnson: Vacatur of Count One disturbed the factual basis for the §924(c) conviction	Gov't: Multiplicity vacatur leaves jury’s factual findings intact	Court: Vacatur for multiplicity does not undo the jury’s factual findings (Ansaldi governs)
Whether a legally insufficient predicate conviction requires reversal of §924(c)	Johnson: If predicate cannot stand, §924(c) must fail	Gov't: §924(c) must be supported by legally sufficient proof of predicate; if predicate is insufficient, §924(c) fails	Court: Agrees with Zhou: §924(c) cannot stand if proof of predicate is legally insufficient
Whether prior counsel was ineffective for failing to raise these arguments	Johnson: Prior counsel failed to raise multiplicity and §924(c) challenges	Gov't: Any failures were not prejudicial or were not objectively unreasonable	Court: Strickland not met — any counsel deficiency was remedied by vacatur and the §924(c) arguments are meritless

United States v. Zhou, 428 F.3d 361 (2d Cir.) (a §924(c) conviction requires legally sufficient proof of the underlying offense)
United States v. Ansaldi, 372 F.3d 118 (2d Cir. 2004) (vacatur for multiplicity does not negate jury factual findings)
United States v. Lake, 150 F.3d 269 (3d Cir. 1998) (§924(c) does not require a separate conviction for the predicate offense)
United States v. Wilkerson, 361 F.3d 717 (2d Cir. 2004) (panels bound by prior panel precedent)
Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014) (setting forth standard of review for §2255 ineffective-assistance claims)
Strickland v. Washington, 466 U.S. 668 (1984) (counsel must be objectively unreasonable and prejudicial to establish ineffective assistance)