United States v. Dominique Johnson
899 F.3d 191
| 3rd Cir. | 2018Background
- Dominique Johnson participated in five Philadelphia-area bank robberies in 2009, serving primarily as lookout and supplying a .40 caliber pistol used in several robberies.
- A jury convicted Johnson of multiple counts including conspiracy (18 U.S.C. § 371), armed bank robbery (18 U.S.C. § 2113(d)), aiding and abetting those robberies (18 U.S.C. §§ 2 & 2113(d)), and three counts under 18 U.S.C. § 924(c) for using/brandishing a firearm.
- The district court sentenced him to 835 months’ imprisonment including consecutive mandatory minimums under § 924(c) (one seven-year term for brandishing and two 25-year terms as second-or-subsequent § 924(c) convictions).
- The Third Circuit initially affirmed; the Supreme Court granted certiorari, vacated, and remanded for reconsideration in light of Alleyne v. United States.
- On remand Johnson—after proceeding briefly pro se and then with new counsel—raised Alleyne and other intervening-Supreme-Court-based challenges (Rosemond and Johnson (2015)), plus several pro se claims; the Third Circuit reviewed and affirmed.
Issues
| Issue | Plaintiff's Argument (Johnson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Whether sentencing for brandishing violated Alleyne because jury did not find brandishing | Judge found brandishing at sentencing; Alleyne requires any fact increasing mandatory minimum be found by jury | Indictment incorporated an allegation that the firearm was brandished; record overwhelmingly supports brandishing | Trial error (element charged but not submitted); plain-error review fails because evidence of brandishing was overwhelming—conviction and sentence affirmed |
| Whether two § 924(c) convictions required jury findings that they were "second or subsequent" offenses under Alleyne | Johnson: court erred by treating two counts as second-or-subsequent without jury finding | Government: Almendarez-Torres permits judge to find prior-conviction facts (second/subsequent) | Held for Government: Almendarez-Torres controls; fact of prior conviction is exception to Apprendi/Alleyne rule |
| Whether aiding-and-abetting instructions violated Rosemond (advance-knowledge requirement) | Johnson: instruction allowed conviction based on knowledge of gun only as it was being used, contrary to Rosemond's requirement of advance knowledge for § 924(c) aiding-and-abetting | Government: even if instruction was erroneous, overwhelming uncontroverted evidence of advance knowledge; any error is harmless/plain-error fails | Any Rosemond error did not satisfy plain-error third prong; convictions stand |
| Whether § 2113(d) bank robbery is a "crime of violence" after Johnson (2015) decision | Johnson: predicate bank robbery is not a crime of violence under the categorical approach | Government: § 2113(d) requires assault or putting life in jeopardy by a dangerous weapon, satisfying the elements clause; even § 2113(a) by intimidation qualifies under Third Circuit precedent | Held for Government: § 2113(d) is a crime of violence under § 924(c)(3)(A); convictions affirmed |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (establishes jury finding requirement for facts that increase statutory maximum)
- Alleyne v. United States, 570 U.S. 99 (extends Apprendi to facts that increase mandatory minimums)
- Almendarez-Torres v. United States, 523 U.S. 224 (prior-conviction exception to Apprendi)
- Rosemond v. United States, 572 U.S. 65 (requires advance knowledge of gun to aid-and-abet § 924(c) offense)
- Johnson v. United States, 576 U.S. 591 (2015) (struck down ACCA residual clause; discussed here regarding residual-clause arguments)
- Lewis v. United States, 802 F.3d 449 (3d Cir. en banc) (post-Alleyne analysis distinguishing sentencing vs. trial error)
- Vazquez v. United States, 271 F.3d 93 (3d Cir. en banc) (trial error where element charged but not submitted; explains review of trial record)
- Marcus v. United States, 560 U.S. 258 (plain-error standard for unpreserved errors)