945 F.3d 174
4th Cir.2019Background
- Police stopped Martin Johnson after a vehicle registration check and pursuit; officers found multiple bags of marijuana, a handgun that fell from Johnson’s pants, ammunition, and cash. Johnson, a convicted felon, was tried and convicted for possession of a firearm by a felon under 18 U.S.C. § 922(g).
- The PSR classified Johnson as an Armed Career Criminal (ACCA) based on three prior convictions (including a 1995 Maryland robbery), and increased his base offense level under the Sentencing Guidelines based on a prior Maryland possession-with-intent-to-distribute conviction.
- At sentencing the district court rejected both enhancements: it held Maryland robbery does not categorically require "violent force" for ACCA purposes and that Maryland possession-with-intent-to-distribute could be satisfied by an "offer" and thus was not a Guidelines "controlled substance offense." The court set a base offense level of 14, applied other enhancements, departed upward two criminal-history levels, and sentenced Johnson to 51 months.
- The Government appealed the district court’s refusals to apply the ACCA and the Guidelines enhancement; Johnson cross-appealed two evidentiary rulings and the upward criminal-history departure.
- The Fourth Circuit affirmed the conviction, rejected Johnson’s evidentiary plain-error claims, held Maryland robbery qualifies as an ACCA violent felony, held Maryland possession-with-intent-to-distribute qualifies as a Guidelines controlled substance offense, vacated the sentence, and remanded for resentencing. The court did not decide the criminal-history departure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court plainly erred by failing sua sponte to give a limiting instruction concerning marijuana evidence (Rule 404(b) concern). | Gov't: No plain error; Johnson never objected or requested a limiting instruction and the jury was properly instructed about considering only charged offenses. | Johnson: Omission of a limiting instruction permitted unfair prejudice from other-acts evidence. | No plain error; sua sponte limiting instruction not required given lack of request and general jury instructions. |
| Whether the district court erred in allowing the Government to cross-examine Johnson about prior convictions after defense elicited some priors. | Gov't: Defense opened the door by eliciting his criminal history; prosecution may explore other priors for impeachment. | Johnson: Self-testimony about some priors does not entitle the prosecution to probe all prior convictions. | No plain error; defendant opened the door and counsel concurred, so cross-examination was permissible. |
| Whether a 1995 Maryland robbery conviction is an ACCA "violent felony" under the force clause. | Gov't: Maryland robbery qualifies because it can be committed by threat of force or by force capable of causing injury/overcoming resistance. | Johnson: Maryland robbery may be satisfied by de minimis or merely offensive touching and thus lacks the "violent force" Johnson v. United States requires. | Maryland robbery is a violent felony: robbery by threat satisfies the threatened-force prong; robbery by force satisfies the clause when it overcomes resistance or uses force capable of causing injury (nominal contact insufficient). |
| Whether Maryland possession-with-intent-to-distribute is a Guidelines "controlled substance offense." | Gov't: The Maryland statute requires intent to distribute and therefore qualifies under §4B1.2(b). | Johnson: Maryland law allows conviction based on an "offer" to sell (no intent to complete sale), so it lacks the intent element required by the Guidelines. | The Maryland offense requires proof of intent to distribute (not mere offer); it qualifies as a controlled substance offense under the Guidelines. |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (Sup. Ct.) (defines "physical force" for ACCA as violent force capable of causing pain or injury)
- Stokeling v. United States, 139 S. Ct. 544 (Sup. Ct.) (force that overcomes a victim’s resistance satisfies ACCA force clause)
- Coles v. State, 821 A.3d 389 (Md. 2003) (describes Maryland robbery modalities: by threat or by force)
- Spencer v. State, 30 A.3d 891 (Md. 2011) (robbery-by-threat requires conduct that would make a reasonable person fear bodily harm)
- West v. State, 539 A.2d 231 (Md. 1988) (addresses sufficiency of force for Maryland robbery—more than merely taking possession)
- Cooper v. State, 265 A.2d 569 (Md. Ct. Spec. App.) (distinguishes larceny from robbery where only minimal force to take property was used)
- Dozier, 848 F.3d 180 (4th Cir.) (categorical-approach review for Guidelines controlled-substance questions)
- Madkins, 866 F.3d 1136 (10th Cir.) (analyzes whether state statutes criminalizing offers qualify as controlled substance offenses)
- Hinkle, 832 F.3d 569 (5th Cir.) (same issue re: statutory "offer to sell")
- Savage, 542 F.3d 959 (2d Cir.) (same issue re: statutory definitions)
- Olson, 849 F.3d 230 (5th Cir.) (explains that offenses requiring intent to sell/distribute qualify as controlled substance offenses)