United States v. Charles Johnson, III
803 F.3d 610
| 11th Cir. | 2015Background
- Defendant Charles Johnson pled guilty to one count of armed bank robbery for a July 11, 2013 robbery of the Savannah Bank; other related robbery charges were dismissed under the plea agreement.
- At the robbery Johnson wore a mask, vaulted the teller counter, pointed a silver pistol at tellers, demanded money (excluding dye packs), and when dye packs were included said, “I said I will kill you,” fleeing with $19,633.
- The PSI recommended a base offense level 20 plus enhancements (two levels for taking from a financial institution, six levels for a firearm “otherwise used,” and one level for loss amount), minus three levels for acceptance; total offense level 26, Criminal History II → guidelines 70–87 months.
- Johnson objected to the six-level § 2B3.1(b)(2)(B) enhancement, arguing it should be five levels under § 2B3.1(b)(2)(C) for brandishing; the district court overruled and adopted the PSI.
- At sentencing the court imposed a 102-month sentence (15-month upward variance), citing Johnson’s string of eight robberies in 14 months, repeated firearm use and threats, prior federal firearm conviction and lack of deterrence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper firearm enhancement under U.S.S.G. § 2B3.1(b)(2): "otherwise used" (six-level) vs. "brandished" (five-level) | Government: conduct (pointing gun, demanding compliance, then explicit threat "I will kill you") satisfies "otherwise used"—more than mere brandishing | Johnson: only brandished because he didn’t point the gun at a single identified person or "literally level[]" it closely at someone | Court: Affirmed application of six-level "otherwise used" enhancement—pointing plus implicit and explicit threats constitute "otherwise used" |
| Substantive reasonableness of 102-month sentence (15-month upward variance) | Government: upward variance warranted to deter, protect public, and reflect seriousness given repeated armed robberies after prior federal term | Johnson: variance unreasonable because guidelines already accounted for relevant factors; instant offense was "run-of-the-mill" robbery | Court: Affirmed as reasonable—district court properly weighed § 3553(a) factors, could consider additional unconvicted conduct and criminal history, and explained the variance |
Key Cases Cited
- United States v. Wooden, 169 F.3d 674 (11th Cir. 1999) (pointing gun at victim one-half inch from forehead constituted "otherwise used")
- United States v. Cover, 199 F.3d 1270 (11th Cir. 2000) (using firearm to make explicit or implicit threats against a person is "otherwise used")
- United States v. Verbitskaya, 406 F.3d 1324 (11th Cir. 2005) (upholding "otherwise used" where gun was used to threaten victim to obtain compliance)
- United States v. Douglas, 489 F.3d 1117 (11th Cir. 2007) (affirming "otherwise used" where defendant held gun at groin and threatened victim)
- Gall v. United States, 552 U.S. 38 (2007) (establishing deferential abuse-of-discretion review for district court sentencing decisions)
- United States v. Moran, 778 F.3d 942 (11th Cir. 2015) (district court may consider conduct already factored into guidelines when imposing a variance)