USA v. Derrick Johnson
OPINION and JUDGMENT filed : Johnson's sentence is VACATED and REMANDED for resentencing. Decision for publication pursuant to local rule 206. Damon J. Keith, Richard Allen Griffin (AUTHORING), and Jane Branstetter Stranch, Circuit Judges. [10-5691, 10-5778]
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 12a0099p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee/Cross-Appellant, Nos. 10-5691/5778
DERRICK JOHNSON, aka Derik Johnson, aka
Jalidawud Abdullah, aka Mutee Abdullah
Jalidawud, aka Jalidawud Mutee Abdullah,
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 08-20432-001—S. Thomas Anderson, District Judge.
Decided and Filed: April 11, 2012
Before: KEITH, GRIFFIN, and STRANCH, Circuit Judges.
ON BRIEF: Stephen B. Shankman, April R. Goode, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Memphis, Tennessee, for Appellant. Alexia M. Fulgham,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
GRIFFIN, Circuit Judge. Following a jury trial, defendant Derrick Johnson was
found guilty of being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g). In this sentencing appeal, Johnson asserts that the district court erred in
ordering his federal and state-court sentences to be served consecutively without proper
articulation. On cross-appeal, the government contends that the district court erred in
refusing to sentence Johnson as an “armed career criminal” under 18 U.S.C. § 924(e).
For the reasons that follow, we find the government’s cross-appeal meritorious and,
United States v. Johnson
accordingly, vacate Johnson’s sentence and remand for resentencing. In view of our
disposition, we dismiss as moot defendant’s appeal.
Johnson was convicted of being a felon in possession of a firearm on December
16, 2009. Soon thereafter, a presentence investigation report (“PSR”) was compiled,
recommending an advisory Guidelines range of 210 to 262 months’ imprisonment, wellabove the statutory maximum of 120 months. 18 U.S.C. § 924(a)(2). The government
filed objections to the PSR, asserting that Johnson qualified as an “armed career
criminal,” requiring a mandatory minimum sentence of fifteen years’ imprisonment.
18 U.S.C. § 924(e)(1). Specifically, the government asserted that Johnson’s Missouri
conviction for third-degree assault was Johnson’s third “violent felony,” as defined in
18 U.S.C. § 924(e)(2)(B).
At sentencing, the district court rejected the government’s argument that Johnson
qualified as an armed career criminal, noting that Missouri’s third-degree assault statute
punishes reckless as well as intentional conduct. Then, after assessing the factors set
forth in 18 U.S.C. § 3553(a), the court imposed the statutory maximum sentence of 120
months’ imprisonment, to be served consecutively to Johnson’s state-court sentence for
Following entry of final judgment, both Johnson and the
government filed timely appeals.
The government argues that the district court erred in failing to sentence Johnson
as an armed career criminal. We agree, requiring that we vacate Johnson’s sentence and
remand for resentencing. Accordingly, we need not address Johnson’s issues on appeal.1
The Armed Career Criminal Act (“ACCA”) requires a fifteen-year mandatory
minimum sentence for defendants convicted of three or more “serious drug offense[s]”
While we do not address the district court’s ruling regarding a consecutive sentence, we caution
the district court that in imposing a consecutive sentence, it should expressly consider the factors listed in
18 U.S.C. § 3553(a), as well as U.S.S.G. § 5G1.3(c) and the relevant commentary. United States v.
Johnson, 553 F.3d 990, 997-98 (6th Cir. 2009).
United States v. Johnson
or “violent felon[ies].” 18 U.S.C. § 924(e)(1).2 An offense is considered a “violent
felony” if (1) it “has as an element the use, attempted use, or threatened use of physical
force against the person of another,” (2) “is burglary, arson, . . . extortion, [or] involves
[the] use of explosives,” or (3) “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Whether a prior
conviction qualifies as a “violent felony” is a question of law we review de novo. United
States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011).
“[I]n determining the nature of a defendant’s prior conviction, we apply a
‘categorical’ approach, meaning that we look at the statutory definition of the crime of
conviction, not the facts underlying that conviction, to determine the nature of the
crime.” United States v. Ford, 560 F.3d 420, 421-22 (6th Cir. 2009). If, however, “it
is possible to violate a criminal law in a way that amounts to a crime of violence and in
a way that does not, we may look at the indictment, guilty plea and similar documents
to see if they ‘necessarily’ establish the nature of the prior offense.”3 Id. at 422.
Reference to such documents is often referred to as the “modified categorical approach.”
Johnson v. United States, 130 S. Ct. 1265, 1273 (2010).
In Missouri, the crime of third-degree assault is defined as follows:
1. A person commits the crime of assault in the third degree if:
(1) The person attempts to cause or recklessly causes physical injury to
another person; or
(2) With criminal negligence the person causes physical injury to another
person by means of a deadly weapon; or
(3) The person purposely places another person in apprehension of
immediate physical injury; or
(4) The person recklessly engages in conduct which creates a grave risk
of death or serious physical injury to another person; or
It is undisputed that Johnson’s prior convictions for robbery with a deadly weapon and
aggravated assault constitute “violent felonies” as defined by 18 U.S.C. § 924(e)(2)(B).
“A ‘crime of violence’ under the career-offender provision is interpreted identically to a ‘violent
felony’ under [the] ACCA.” United States v. Young, 580 F.3d 373, 380 n.5 (6th Cir. 2009).
United States v. Johnson
(5) The person knowingly causes physical contact with another person
knowing the other person will regard the contact as offensive or
(6) The person knowingly causes physical contact with an incapacitated
person, as defined in section 475.010, RSMo, which a reasonable person,
who is not incapacitated, would consider offensive or provocative.
Mo. Ann. Stat. § 565.070.1(1)-(6). Because Johnson had twice committed third-degree
assault against a family or household member, his third conviction for this offense was
classified as a class D felony.4 Id., § 565.070.4.
In this case, the government concedes that Missouri’s third-degree assault is not
a “violent felony” under the categorical approach. Indeed, this crime encompasses a
wide range of conduct, some of which is merely reckless. See United States v.
McMurray, 653 F.3d 367, 377 (6th Cir. 2011) (holding that “recklessly causing serious
bodily injury to another does not qualify as a ‘violent felony’” under the ACCA).
Accordingly, pursuant to the modified categorical approach, the court “may consider the
indictment, the plea agreement, the plea colloquy or ‘comparable judicial record[s]’” to
determine the nature of the offense. United States v. Mosley, 575 F.3d 603, 606 (6th Cir.
2009) (quoting Shepard v. United States, 544 U.S. 13, 26 (2005)).
Johnson was indicted under subsection 1.1 of Missouri’s third-degree assault
statute, which provides: “A person commits the crime of assault in the third degree if
. . . [t]he person attempts to cause or recklessly causes physical injury to another
person[.]” Mo. Ann. Stat. § 565.070.1(1). Because this subsection punishes both
reckless and intentional conduct, Johnson asserts that his conviction cannot constitute
a violent felony. Johnson, however, was never charged with reckless conduct. The
criminal information and its amended versions make clear that Johnson was only
charged with the “attempt to cause physical injury” to another. Indeed, the jury was
not instructed that it could convict Johnson based upon a finding of recklessness; rather,
the jury was required to find that Johnson “attempted to cause physical injury” in order
The fact that third-degree assault is normally a misdemeanor offense does not prevent the
conviction from being considered a violent felony when the conviction is enhanced due to the defendant’s
status as a recidivist. See e.g., Young, 580 F.3d at 376-81.
United States v. Johnson
to return a guilty verdict. See Taylor v. United States, 495 U.S. 575, 602 (1990) (noting
that a court may look at the indictment and jury instructions to determine whether a
defendant was convicted of a violent felony).
Under the modified categorical approach, Johnson asserts that judicial records
may be analyzed to determine which subsection of a statute was charged, but not to
determine which portion of a subsection was charged. This argument is meritless. “Just
because a state legislature chooses to place a variety of proscribed acts in one statute (or
even one subsection of a statute) does not mean that all of the listed acts must be
classified as one category of offense for purposes of defining a [violent felony] under
federal law.” Mosley, 575 F.3d at 606 (emphasis added). “The ‘categorical approach
requires courts to choose the right category,’ . . . and sometimes that choice requires the
federal courts to draw distinctions that the state law on its face does not draw.” Id.
(quoting Chambers v. United States, 555 U.S. 122, 126 (2009)). In this case, subsection
1.1 of Missouri’s third-degree assault statute may be violated in one of two ways:
through a purposeful attempt to cause physical injury, or through reckless conduct
actually resulting in physical injury. Accordingly, we must examine the indictment and
jury instructions to establish the “nature of the offense” charged. Id. In this case,
Johnson was unambiguously charged with and convicted of the intentional attempt to
cause physical injury to another.
Having clarified the nature of the crime at issue, we must determine whether it
constitutes a “violent felony.” The government contends that Johnson’s conviction for
third-degree assault qualifies as a violent felony because it “otherwise involves conduct
that presents a serious potential risk of physical injury to another.”
§ 924(e)(2)(B)(ii). This statutory language, often referred to as the “residual clause,”
Chambers, 555 U.S. at 124, “is not intended as a catch-all provision.” Benton, 639 F.3d
at 731. “Instead, ‘the provision’s listed examples – burglary, arson, extortion, or crimes
involving the use of explosives – illustrate the kinds of crimes that fall within the
statute’s scope. Their presence indicates that the statute covers only similar crimes,
rather than every crime that ‘presents a serious potential risk of physical injury to
United States v. Johnson
another.’” Id. (quoting Begay v. United States, 553 U.S. 137, 142 (2008)). Therefore,
an offense is a violent felony if it is “roughly similar, in kind as well as in degree of risk
posed,” to the listed examples, which typically involve “purposeful, violent, and
aggressive conduct.” Begay, 553 U.S. at 143-45.5 In addition, we must consider
whether the prior offense “conduct is such that it makes more likely that an offender,
later possessing a gun, will use that gun deliberately to harm a victim.” Id. at 145.
We have formulated these considerations into a two-part test. To be considered
a “violent felony” under the residual clause of the ACCA, the offense must “(1) pose
a serious potential risk of physical injury to others; and (2) involve the same kind of
purposeful, violent, and aggressive conduct as the enumerated offenses of burglary,
arson, extortion, or offenses involving the use of explosives.” Young, 580 F.3d at 377.
Recently, however, the Supreme Court has noted that “[i]n many cases the purposeful,
violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes
that fall within the former formulation and those that present serious potential risks of
physical injury to others tend to be one and the same.” Sykes v. United States, 131 S. Ct.
2267, 2275 (2011). Accordingly, the risk level presented by the offense constitutes our
primary inquiry, as it may often “suffice to resolve the case[.]” Id. at 2275-76.
In the case at bar, Johnson’s third-degree assault conviction most certainly “poses
a serious potential risk of physical injury to others.” Young, 580 F.3d at 377. Indeed,
the very definition of the crime requires that the offender attempt to cause physical
injury to another with the purpose of causing such injury. Cf. United States v. Johnson,
587 F.3d 203, 210-11 (3d Cir. 2009) (“In the ordinary case, a violation of
[Pennsylvania’s simple assault statute] poses a degree of risk of physical injury because
the defendant must cause or attempt to cause bodily injury to the victim. In other words,
the statute itself contemplates bodily harm to the victim as a prerequisite to
In Begay, for example, the Supreme Court held that driving under the influence of alcohol is a
strict liability crime that differs materially from the violent and aggressive crimes of arson, burglary,
extortion, and crimes involving explosives. 639 F.3d at 148.
United States v. Johnson
While of secondary importance under Sykes, Johnson’s third-degree assault
conviction is also “similar in kind” to the enumerated offenses because it involves
“purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 145. Indeed, because
the offense “requires intent that . . . bodily injury be caused,” it constitutes “violent and
aggressive conduct.” Benton, 639 F.3d at 732 (internal quotation marks omitted); see
also Johnson, 587 F.3d at 212 (“[T]here can be no doubt that simple assault is at least
as violent and aggressive as the enumerated crimes because a defendant who
intentionally or knowingly commits that offense intends to impair the victim’s physical
condition or cause her substantial pain, while no such objective is required by the
enumerated crimes.”). Moreover, the crime charged against Johnson “is exactly the kind
of conduct that ‘makes [it] more likely that an offender, later possessing a gun, will use
that gun deliberately to harm a victim.’” Benton, 639 F.3d at 732 (quoting Begay, 553
U.S. at 146). Certainly, the intentional attempt to cause physical injury to another
demonstrates Johnson’s capacity for violence. Accordingly, we hold that Johnson’s
third-degree assault conviction is a violent felony.6 See Johnson, 587 F.3d at 212;
United States v. Pratt, 913 F.2d 982, 993 (1st Cir. 1990) (holding simple assault to be
a crime of violence).
Johnson makes several arguments as to why his third-degree assault conviction
does not qualify as a violent felony, none of which are persuasive. First, Johnson
contends that third-degree assault is not a violent or aggressive offense because it can
be perpetrated through “guile, deception, or deliberate omission.” Johnson, however,
cites to no Missouri case where third-degree assault was committed in such a fashion.
Accordingly, there is no basis upon which to hold that Missouri third-degree assault is
typically accomplished without violence or aggression. See Young, 580 F.3d at 378 n.2
(“[W]e concern ourselves only with how an offense is ordinarily or generally committed,
based upon the statute.”).
The government also asserts that third-degree assault is a violent felony because it “has as an
element the use, attempted use, or threatened use of physical force against the person of another.”
18 U.S.C. § 924(e)(2)(B)(i). However, because Johnson’s conviction is a violent felony under the residual
clause, we need not address whether it has the “use of force” as an element.
United States v. Johnson
Johnson next asserts that third-degree assault is not similar in kind to the
enumerated offenses because it is not a crime against property, relying upon the
following quote from Begay: “Congress sought to expand th[e] definition [of violent
felony] to include both crimes against the person (clause (i)) and certain physically risky
crimes against property (clause (ii)).” 553 U.S. at 143-44. Begay, however, does not
expressly require that violent felonies under the residual clause involve property, and
this court has several times applied the residual clause to crimes unrelated to property.
See e.g., Benton, 639 F.3d at 732 (holding solicitation to commit aggravated assault to
qualify as a violent felony under the residual clause); Young, 580 F.3d at 381 (holding
fleeing and eluding to be a violent felony under the residual clause). Moreover, Johnson
cites to no authority holding that violent felonies under the residual clause must involve
property. Quite to the contrary, several circuit courts have rejected this very argument.
See Johnson, 587 F.3d at 211 n.9 (“[The defendant] argues that Pennsylvania simple
assault is not similar in kind to the enumerated crimes because it is not a crime against
property. That argument is singularly unconvincing.”); United States v. Almenas, 553
F.3d 27, 35 (1st Cir. 2009) (“An offense will be similar in kind to the enumerated
offenses if it typically involves[s] purposeful, violent, and aggressive conduct regardless
of whether property is involved.”) (internal quotation marks and citation omitted);
United States v. West, 550 F.3d 952, 967 (10th Cir. 2008) (overruled on other grounds).
Finally, Johnson asserts that because his third-degree assault conviction was for
the mere attempt to cause physical injury, it cannot be considered a violent felony. We
disagree. “[N]othing in the plain language of [the residual] clause, when read together
with the rest of the statute, prohibits attempt offenses from qualifying as ACCA
predicates when they involve conduct that presents a serious potential risk of physical
injury to another.” James, 550 U.S. at 198. While the attempt to cause physical harm
may not result in actual physical injury to the victim, the actions constituting an attempt
“create a heightened and serious potential risk of the occurrence of physical injury.”
Benton, 639 F.3d at 732; see also United States v. Kaplansky, 42 F.3d 320, 324 (6th Cir.
1994) (“[M]erely because defendant did not complete the kidnapping does not diminish
the potential risk of injury to the victim.”). Indeed, in order to convict Johnson of third-
United States v. Johnson
degree assault, the jury was required to find that he took a “substantial step toward
causing” physical injury to another. See United States v. Zabawa, 134 F. App’x 60, 66
(6th Cir. 2005) (“Where the crime itself is a ‘violent felony’ under the ACCA, an attempt
to commit that crime will also qualify as a ‘violent felony’ under the [residual] clause
if the state’s attempt statute requires a ‘substantial step’ toward completion of the
offense.”); United States v. Lane, 909 F.2d 895, 903 (6th Cir.1990) (“The fact that [the
defendant’s] prior conviction was for attempted burglary rather than burglary does not
preclude sentence enhancement under the [residual] clause . . . [when the] attempt . . .
requires the mens rea of purpose or knowledge and conduct toward the commission of
that crime.”). Moreover, at least one panel of this court has held attempted assault to
present a serious potential risk of physical injury under the residual clause. United
States v. Calloway, 189 F. App’x 486, 491 (6th Cir. 2006) (“There is no question that
causing or attempting to cause physical harm presents a serious risk of physical injury
In sum, because Johnson’s prior conviction for third-degree assault involved
conduct presenting “a serious potential risk of physical injury to another,” it constitutes
a violent felony under the ACCA. Accordingly, we VACATE Johnson’s sentence and
REMAND for resentencing in accordance with this opinion.
See also United States v. Walker, 442 F.3d 787, 789 (2d Cir. 2006) (holding attempted seconddegree assault to be a violent felony).
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