United States v. Derrick Johnson
530 F. App'x 528
6th Cir.2013Background
- Derrick Johnson was convicted in 2009 of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
- Government sought sentencing as an Armed Career Criminal (ACCA), relying on three prior convictions: Tennessee robbery with a deadly weapon, Missouri third-degree assault, and Tennessee aggravated assault.
- On first appeal this court held Missouri third-degree assault qualified as a violent felony and remanded for resentencing; the panel noted (without analysis) that the robbery-with-a-deadly-weapon and aggravated-assault convictions were violent felonies.
- On remand Johnson argued his Tennessee robbery-with-a-deadly-weapon conviction did not categorically qualify as a "violent felony" under 18 U.S.C. § 924(e) because the statute covered robbery "by violence or putting the person in fear."
- The district court concluded the robbery-with-a-deadly-weapon conviction was a categorical violent felony; the Sixth Circuit affirmed, applying the modified categorical approach and relying on Shepard documents showing Johnson pled to robbery with a deadly weapon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tennessee robbery with a deadly weapon is categorically a "violent felony" under ACCA § 924(e) | Gov: Aggravated robbery (robbery with a deadly weapon) necessarily involves use/threatened use of physical force and qualifies under the use-of-force clause | Johnson: Statute covers robbery "by violence or putting the person in fear," so it is divisible; conviction not categorically a violent felony unless Shepard documents show violent means | Not categorical, but under the modified categorical approach Shepard documents show Johnson pled to robbery with a deadly weapon, which qualifies as a violent felony; judgment affirmed |
Key Cases Cited
- United States v. Gloss, 661 F.3d 317 (6th Cir.) (aggravated robbery committed with a deadly weapon qualifies under ACCA use-of-force clause)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (explaining categorical and modified categorical approaches)
- Johnson v. United States, 559 U.S. 133 (2010) ("physical force" means violent force capable of causing physical pain or injury)
- United States v. Nance, 481 F.3d 882 (6th Cir.) (ACCA analysis precedent regarding robbery-related offenses)
- United States v. Rede-Mendez, 680 F.3d 552 (6th Cir.) (distinguishing when use of a deadly weapon does or does not render a crime a crime of violence)
- United States v. McMurray, 653 F.3d 367 (6th Cir.) (convictions based on Alford pleas can qualify under ACCA when Shepard documents show the narrowed, qualifying crime)
- Taylor v. United States, 495 U.S. 575 (1990) (foundational categorical approach guidance)
- United States v. Johnson, 675 F.3d 1013 (6th Cir.) (earlier panel decision in this case remanding for resentencing)