United States v. Samuel James Johnson

Filing

PER CURIAM OPINION FILED - THE COURT: Roger L. Wollman, Diana E. Murphy and Lavenski R. Smith (UNPUBLISHED) [4060252] [12-3123]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3123
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Samuel James Johnson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: May 13, 2013
Filed: July 31, 2013
[Unpublished]
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Before WOLLMAN, MURPHY, and SMITH, Circuit Judges.
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PER CURIAM.
Samuel James Johnson pleaded guilty to being an armed career criminal in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The district

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court1 designated three of Johnson's prior convictions—attempted simple robbery,
simple robbery, and possession of a short-barreled shotgun—as violent felonies. The
court then found Johnson to be an armed career criminal under the Armed Career
Criminal Act (ACCA) and sentenced him to the mandatory minimum of 180 months'
imprisonment. Johnson appeals his designation as an armed career criminal, arguing
that his convictions for attempted simple robbery and possession of a short-barreled
shotgun were not violent felonies under the ACCA. Johnson also argues that the
ACCA is unconstitutionally vague. We affirm.
I. Background
In 2010, the FBI began investigating Johnson's involvement in an organization
called the National Social Movement. Johnson subsequently left the National Social
Movement and founded the Aryan Liberation Movement, where he planned to
counterfeit United States currency to fund its activities. On November 4, 2010,
Johnson disclosed to undercover FBI agents that he manufactured napalm, silencers,
and other explosives for the Aryan Liberation Movement. That same day, he showed
an undercover officer his AK-47 rifle. Additionally, he showed the undercover officer
a large cache of ammunition containing approximately 1,100 rounds. Then, in
December 2010, he possessed a .22 caliber semi-automatic assault rifle and a .45
caliber semi-automatic handgun.
Authorities arrested Johnson in April 2012 when he attended a meeting with his
probation officer. Johnson admitted at that time that he possessed an AK-47 rifle and
a .22 caliber semi-automatic assault rifle.
A grand jury charged Johnson in a six-count indictment with being an armed
career criminal in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and

1

The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
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924(e) (Counts 1, 3, 5, and 6)2; and being a felon in possession of ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Counts 2 and 4.) Johnson agreed to
plead guilty to Count 3 in exchange for the government dismissing the remaining
counts. The plea agreement, in its criminal history section, stated that Johnson
qualifies as an "Armed Career Criminal" and would therefore be subject
to a mandatory minimum 15 year term of imprisonment pursuant to
Title 18 Section 924(e). The defendant reserves the right to further
investigate the defendant's prior convictions and challenge the
applicability of the ACCA based upon a review of the underlying
documents relating to his conviction.
The presentence investigation report (PSR) identified three prior violent
felonies. Johnson's first violent felony was a conviction for attempted simple robbery
in Minnesota. In 1999, Johnson put a gun to the victim's head and demanded money.
Unbeknownst to the victim, the handgun was a BB gun. Johnson's second prior violent
felony was a simple robbery. In 2007, Johnson pleaded guilty to robbing an individual
at gunpoint in a parking lot. His third prior violent felony conviction came later that
year when Johnson was convicted of possessing a short-barreled shotgun during a
drug sale.
Johnson objected to the PSR's designation of his convictions for short-barreled
shotgun possession, simple robbery, and attempted simple robbery as violent felonies.
Johnson also argued that the district court should use the categorical approach to
determine that attempted simple robbery was not a violent felony. Johnson further
argued that the ACCA was unconstitutionally vague. In response, the government
averred that Eighth Circuit precedent establishes that possession of a short-barreled

2

Johnson's possession as a convicted felon of the AK-47 rifle on November 4,
2010, became Count 3 of the indictment.
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shotgun and attempted simple robbery are both violent felonies and that the ACCA
is not unconstitutionally vague.
The PSR calculated a base offense level of 24 for Johnson's violation of 18
U.S.C. §§ 922(g)(1) and 924(e)(1) subsequent to two felony convictions of a crime
of violence. U.S.S.G. § 2K2.1(a)(2). The PSR added two offense levels under
U.S.S.G. § 2K2.1(b)(1)(A) for possessing more than three but less than seven firearms
and added four offense levels under U.S.S.G. § 2K2.1(b)(6)(B) for possessing the
firearm in connection with another felony offense. The PSR determined that
Johnson's three violent felonies qualified him as an Armed Career Criminal, and it
increased his offense level to 33 under U.S.S.G. § 4B1.4(b)(3)(B). Finally, the PSR
reduced the total offense level to 30 based on Johnson's acceptance of responsibility.
Johnson received three criminal history points, one for each of the three prior felonies
at issue in this appeal. Two additional points were added because Johnson committed
the instant offense while under a criminal justice sentence. Johnson's total criminal
history score of 5 in conjunction with his status as an armed career criminal resulted
in a criminal history category of IV.
The district court followed the recommendation of the PSR and found Johnson
to have three prior felony convictions; therefore, it determined that Johnson was an
armed career criminal under 18 U.S.C. § 924(e). The district court sentenced Johnson
to 180 months' imprisonment, the ACCA mandatory minimum, and five years of
supervised release.
II. Discussion
On appeal, Johnson argues that (1) his 1999 conviction for attempted simple
robbery and his 2007 conviction for possession of a short-barreled shotgun should not
be considered violent felonies for the purpose of the ACCA and (2) the ACCA is
unconstitutionally vague.

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A. Violent Felonies Under the ACCA
"'We review de novo a district court's determination that a defendant's prior
conviction constitutes a violent felony for purposes of § 924(e).'" United States v.
Soileau, 686 F.3d 861, 864 (8th Cir. 2012) (quoting United States v. Boaz, 558 F.3d
800, 806 (8th Cir. 2009)). Under 18 U.S.C. § 922(g)(1),
(g) [i]t shall be unlawful for any person—
(1) who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year
...
***
to ship or transport in interstate or foreign commerce, or possess in or
affecting commerce, any firearm or ammunition; or to receive any
firearm or ammunition which has been shipped or transported in
interstate or foreign commerce.
Furthermore, any individual "who violates section 922(g)(1)" and who "has three
previous convictions . . . for a violent felony or a serious drug offense . . . shall be
. . . imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). Finally, according
to § 924(e)(2)(B),
(B) the term "violent felony" means any crime punishable by
imprisonment for a term exceeding one year, or any act of juvenile
delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such
term if committed by an adult, that—
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or

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(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another . . . .
Our circuit addressed the sentencing implications of possessing a short-barreled
shotgun in United States v. Lillard:
Possession of a short shotgun presents a serious potential risk of
physical injury to another because it is roughly similar to the listed
offenses within the ACCA, both in kind as well as the degree of risk for
harm posed. Lillard's possession of a short shotgun is a violent felony.
685 F.3d 774, 777 (8th Cir. 2012). Johnson's offense is not meaningfully
distinguishable from the one in Lillard. The district court did not err by treating
Johnson's possession of a short-barreled shotgun conviction as violent felony.
Similarly, the district court also properly considered Johnson's attempted simple
robbery conviction to be a violent felony. In a case involving the Arkansas robbery
statute, which is quite similar to the Minnesota robbery statute, we concluded that the
offense of attempted robbery was a violent felony for purposes of the ACCA.
The Arkansas robbery statute provides "a person commits robbery if,
with the purpose of committing a felony or misdemeanor theft . . . the
person employs or threatens to immediately employ physical force upon
another person." Ark. Code Ann. § 5-12-102(a). By definition, robbery
in Arkansas qualifies as a crime of violence under § 4B1.2(a)(1). An
attempt to commit an Arkansas robbery automatically qualifies as a
crime of violence under the binding commentary to § 4B1.2. Thus, [the
defendant's] Arkansas state conviction for attempted robbery qualifies as
a crime of violence under § 4B1.1, and the district court did not err when
it applied the career offender provision.
United States v. Sawyer, 588 F.3d 548, 556 (8th Cir. 2009).
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The Minnesota robbery statute phrase "uses or threatens the imminent use of
force against any person," Minn. Stat. § 609.24, is almost identical in meaning to the
Arkansas statute's phrase "employs or threatens to immediately employ physical force
upon another person," Ark. Code Ann. § 5-12-102(a). See Sawyer, 588 F.3d at 556.
Consequently, the holding in Sawyer that attempted robbery is a violent felony under
the ACCA applies to Johnson's attempted simple robbery in Minnesota. See id.
Since Johnson's three prior convictions—attempted simple robbery, simple
robbery, and being a felon in possession of a short barreled shotgun—are violent
felonies under the ACCA, the district court properly classified Johnson as an armed
career criminal under § 924(e).
B. Constitutionality of the ACCA
Johnson argues that the ACCA is unconstitutionally vague and asks this court
to adopt Justice Scalia's dissenting view. See United States v. Sykes, 131 S. Ct. 2267,
2284–89 (2011) (Scalia, J., dissenting); James v. United States, 550 U.S. 192, 215–31
(2007) (Scalia, J., dissenting).
The Supreme Court and this circuit have upheld the constitutional validity of
§ 924(e) against challenges that it was unconstitutionally vague. Johnson's argument
does not meaningfully differ from earlier attempts. We need not discuss the matter
further for purposes of appeal. See James, 550 U.S. at 210 n.6; United States v.
Hudson, 414 F.3d 931, 936 (8th Cir. 2005).
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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