United States v. Lawrence Johnson, 933 F.3d 540

Background

Lawrence Johnson pleaded guilty (2016) to being a felon in possession of a firearm; he had multiple prior Ohio convictions (1982 attempt robbery, 1983 robbery, 1997 robbery under ORC §2911.02(A)(2), and 2005 complicity to commit aggravated robbery under ORC §§2923.03(A)(2) & 2911.01(A)(1)).
District court initially treated Johnson as an ACCA armed career criminal and imposed a 180-month statutory-minimum sentence; this court vacated and remanded because he lacked three ACCA predicate violent felonies.
On resentencing, the PSR and district court treated Johnson as having two prior "crimes of violence" under the Guidelines, setting the base offense level at 24 and a Guidelines range of 57–71 months; the court sentenced him to 71 months.
Johnson appealed, arguing the 1997 robbery (§2911.02(A)(2)) and the 2005 complicity to aggravated robbery (§2923.03(A)(2) to §2911.01(A)(1)) do not qualify as "crimes of violence" under U.S.S.G. §4B1.2(a).
The Sixth Circuit reviewed de novo whether those convictions qualify under the Guidelines’ elements clause using the categorical approach, and affirmed the district court.

Issues

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (Gov't)	Held
Whether §2911.02(A)(2) robbery (1997) is a "crime of violence" under U.S.S.G. §4B1.2(a)(1)	§2911.02(A)(2) can be satisfied by non-violent or minimal force, and its mens rea may be recklessness, so it does not meet the Guidelines' "physical force" element	Ohio’s definition of "physical harm" requires force capable of causing pain/injury; prior Sixth Circuit precedent treats similar Ohio provisions as violent	Court held §2911.02(A)(2) requires violent force (force capable of causing pain/injury) and can qualify even if mens rea is reckless; conviction is a crime of violence
Whether a conviction for complicity under §2923.03(A)(2) to aggravated robbery (§2911.01(A)(1)) qualifies as a "crime of violence"	Complicity/aiding-and-abetting covers broader conduct and therefore should not automatically qualify under the elements clause	Complicity conviction requires proof of the underlying aggravated robbery elements (which include use/attempted/threatened physical force), so it necessarily incorporates the force element	Court held complicity conviction qualifies because it required proof of the underlying aggravated robbery elements and thus is a crime of violence
Whether the district court procedurally erred in applying a base offense level under §2K2.1(a)(2)	The two prior convictions do not qualify, so applying §2K2.1(a)(2) was erroneous	The two convictions qualify; Guidelines base-offense level application was correct	Court found no procedural error and affirmed the sentence
Applicability of ACCA/Guidelines precedent (categorical approach)	N/A (challenge focuses on state statutes)	Courts should apply the categorical approach and controlling Sixth Circuit/Supreme Court precedents	Court applied categorical approach and controlling precedents to reach its conclusion

Key Cases Cited

Johnson v. United States, 559 U.S. 133 (2010) (defining ACCA residual clause invalidation and approach to "force")
Descamps v. United States, 570 U.S. 254 (2013) (categorical approach versus modified categorical approach)
Mathis v. United States, 136 S. Ct. 2243 (2016) (statutory divisibility and categorical approach guidance)
Voisine v. United States, 136 S. Ct. 2272 (2016) (reckless use of force can qualify under federal "use of physical force")
United States v. Evans, 699 F.3d 858 (6th Cir. 2012) (construing Ohio "physical harm" to require force capable of causing injury under Guidelines)
United States v. Gatson, 776 F.3d 405 (6th Cir. 2015) (Ohio "physical harm" requires force capable of causing physical injury for ACCA purposes)
United States v. Verwiebe, 874 F.3d 258 (6th Cir. 2017) (Voisine’s application to Guidelines analysis)
United States v. Patterson, 853 F.3d 298 (6th Cir. 2017) (aggravated robbery under ORC §2911.01(A)(1) qualifies as a crime of violence)