United States v. Johnson
2012 U.S. App. LEXIS 7262
6th Cir.2012Background
- Johnson was convicted of felon in possession of a firearm under 18 U.S.C. § 922(g).
- The advisory Guidelines suggested 210–262 months; statutory max was 120 months; ACCA enhancement argued by government.
- District court rejected ACCA, sentencing Johnson to 120 months consecutive to a state probation violation.
- Government appealed the ACCA issue; Johnson appealed the sentence and consecutive-sentencing rationale.
- Sixth Circuit vacated and remanded for resentencing on the ACCA issue; Johnson’s direct appeal dismissed as moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Missouri third-degree assault conviction is a violent felony under ACCA | United States contends the prior offense poses serious risk and is similar to listed forcible crimes. | Johnson argues the offense is not a violent felony because it includes reckless conduct and the charged subsection covers mere attempt. | Yes; third-degree assault is a violent felony under the ACCA residual clause. |
| Proper disposition given ACCA qualification | United States seeks vacatur and remand for resentencing with ACCA sentence. | Johnson argues no ACCA sentence and that district court correctly sentenced within guidelines. | Vacate and remand for resentencing consistent with ACCA findings. |
| Impact of attempting to cause injury on ACCA classification | United States relies on case law allowing attempts to qualify as violent felonies under ACCA. | Johnson asserts attempts should not qualify if not the completed offense. | Attempt to commit a violent felony can qualify under ACCA residual clause when it demonstrates serious risk. |
Key Cases Cited
- Taylor v. United States, 495 F.3d 575 (1990) (jury instructions determine nature of offense charged)
- Shepard v. United States, 544 U.S. 13 (2005) (modified categorical approach for 'violent felony' determinations)
- Begay v. United States, 553 U.S. 137 (2008) (limits residual-clause scope; requires similar conduct to enumerated offenses)
- Benton v. United States, 639 F.3d 723 (6th Cir. 2011) (two-part test for residual clause: risk and conduct similarity)
- Young v. United States, 580 F.3d 373 (6th Cir. 2009) (district approach to violent felonies under ACCA; risk focus)
- United States v. Mosley, 575 F.3d 603 (6th Cir. 2009) (modified categorical approach guidance)
- Johnson v. United States, 130 S. Ct. 1265 (2010) (addressed use of modified categorical approach and violent felony scope)
- Sykes v. United States, 131 S. Ct. 2267 (2011) (risk-based analysis of ACCA residual clause; primary inquiry on risk)
- Taylor v. United States, 495 U.S. 575 (1990) (see above)
- Calloway, 189 Fed.Appx. 486 (6th Cir. 2006) (attempted assault as dangerous under residual clause)