NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0524n.06
Case No. 16-4003
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Sep 12, 2017
UNITED STATES OF AMERICA, )
DEBORAH S. HUNT, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
LAWRENCE J. JOHNSON, ) OHIO
)
Defendant-Appellant. )
BEFORE: COOK, KETHLEDGE, and DONALD, Circuit Judges
BERNICE BOUIE DONALD, Circuit Judge. Lawrence Johnson pleaded guilty to
being a felon in possession of a firearm. At sentencing, the district court determined that four of
Johnson’s previous convictions under Ohio state law qualified as violent felonies under the
Armed Career Criminal Act. The district court sentenced Johnson to an enhanced sentence of
180 months’ imprisonment, the minimum term allowable under the Act. For the reasons stated
below, we REVERSE AND REMAND for resentencing.
I.
A.
In August 2015, Lawrence Johnson was arrested for being in possession of a firearm with a
prior felony conviction after the police were called to the scene of an altercation between two
men in the parking lot of a supermarket in Youngstown, Ohio. Johnson was previously
Case No. 16-4003
United States v. Johnson
convicted of attempted robbery under Ohio Rev. Code Ann. §§ 2923.02(A) and 2911.02(A)
(1982) on December 21, 1982, robbery under Ohio Rev. Code Ann. § 2911.02(A) (1982) on May
13, 1983, robbery under Ohio Rev. Code Ann. § 2911.02(A)(2) on November 12, 1997, and
complicity to commit aggravated robbery under Ohio Rev. Code Ann. §§ 2923.02(A)(2) and (F),
and §§ 2911.01(A)(1) and (C) in September 2005. After his most recent arrest, Johnson entered
a plea of guilty. In its presentence investigation report, the U.S. Probation Office suggested that
Johnson qualified as an armed career criminal in accordance with the Armed Career Criminal
Act (“the ACCA”). Defense counsel objected to the application of the ACCA to Johnson’s
sentence both in a sentencing memorandum and at the sentencing hearing itself. After
considering the objection, the district court applied the armed career criminal enhancement to
Johnson’s sentence, sentencing him to 180 months of incarceration, the minimum mandatory
sentence allowed under the ACCA.
B.
This Court has jurisdiction over this matter under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), as an appeal from a case from the United States District Court for the Northern
District of Ohio under 18 U.S.C. § 3231.
II.
Johnson appeals his sentence on the grounds that none of his prior convictions qualify as
predicate offenses under the ACCA. Under the ACCA, an offense punishable by at least one
year in prison may be designated as a “violent felony” where the offense (1) “has as an element
the use, attempted use, or threatened use of physical force against the person of another,” also
known as the elements clause; (2) is an enumerated offense, such as “burglary, arson, or
extortion, [or] involves [the] use of explosives”; or (3) “otherwise involves conduct that presents
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United States v. Johnson
a serious potential risk of physical injury to another,” also known as the residual clause.
18 U.S.C. § 924(e)(2)(B). The Supreme Court recently invalidated the residual clause in
Johnson v. United States, 559 U.S. 133 (2010), and Johnson has not been convicted of any of the
enumerated offenses. This leaves the element-of-force clause as the sole avenue under which
Johnson may qualify as an armed career criminal based on his prior convictions.
In determining whether a crime qualifies as a violent felony under the statute, we apply
the categorical approach to determine whether the statutory definition of the prior state offense,
rather than the underlying facts of the crime, requires the use, attempted use, or threatened use of
physical force against another. United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).
Under this inquiry, we determine “whether the state statute defining the crime of conviction
categorically fits within the generic federal definition of a corresponding aggravated felony.”
Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013) (quotations and citations omitted). Because
the analysis does not turn on the facts underlying the conviction, we presume that the conviction
rests on the minimum conduct criminalized by the statute. Id. However, this does not mean that
we will consider a state statute to have as an element the use of force based on a mere theoretical
possibility “that the State would apply its statute to conduct that falls outside the generic
definition of a crime.” Id. at 1685 (citation omitted).
“The meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question of federal law, not
state law.” Johnson, 559 U.S. at 138. The Supreme Court has defined “physical force” as
understood by the ACCA as “violent force—that is, force capable of causing physical pain or
injury to another person.” Id. at 140. The force must be substantial such that unwanted touching
is insufficient. Id. at 142; see also United States v. Castleman, 134 S. Ct. 1405, 1412 (2014)
(“Minor uses of force may not constitute ‘violence’ in the generic sense.”). However, while the
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United States v. Johnson
definition of physical force is governed by federal law, determining the meaning or scope of the
underlying state crime (robbery and aggravated robbery in this case) is a question of state law,
“including its guidance on the elements of the crime.” Mitchell, 743 F.3d at 1058-59. Johnson
was convicted under two separate robbery statutes. He was convicted of attempted robbery and
robbery under Ohio Rev. Code Ann. §§ 2923.02(A) and 2911.02(A) (1982) (“Pre-Senate Bill
Two”) in 1982 and 1983. He was again convicted of robbery in 1997 under Ohio Rev. Code
Ann. § 2911.02(A)(2) (“Post-Senate Bill Two”). Johnson was also convicted of complicity to
commit aggravated robbery under Ohio Rev. Code Ann. §§ 2923.02(A)(2) and (F), and
§§ 2911.01(A)(1) and (C) in 2005. He argues that none of these prior convictions may be
classified as violent felonies under the elements clause of the ACCA. For the reasons below, we
agree that Johnson’s Pre-Senate Bill robbery and attempted robbery convictions no longer
qualify as violent felonies under the ACCA.
A.
First, we address Johnson’s attempted robbery and robbery convictions under Pre-Senate
Bill Two. We review de novo “a district court’s determination that a prior conviction qualifies
as a ‘violent felony’ under the ACCA.” United States v. Anderson, 695 F.3d 390, 399 (6th Cir.
2012) (citation omitted).
Johnson’s earliest convictions came under the Pre-Senate Bill Two robbery statute, which
states that “[n]o person, in attempting or committing a theft offense, [as defined in section
2913.01 of the Revised Code], or in fleeing immediately after the attempt or offense, shall . . .
[u]se or threaten the immediate use of force against another.” Ohio Rev. Code Ann.
§ 2911.02(A)(3) (1982). Ohio law defines “force” as “any violence, compulsion, or constraint
physically exerted by any means upon or against a person or thing.” Ohio Rev. Code Ann.
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United States v. Johnson
§ 2901.01(A)(1). Johnson’s grounds for arguing that his Pre-Senate Bill Two robbery
convictions do not qualify as predicate offenses under the ACCA are two-fold. First, he argues
that the requisite force for conviction under the Ohio statute does not rise to the level of force
necessary to constitute violent force under the ACCA. Next, he argues that the mens rea
required by the Ohio statute lacks the requisite mens rea to be considered a violent felony under
the ACCA. He concludes that as a result of either or both of these discrepancies between the
Ohio statute and the generic robbery statute, the state statute criminalizes a broader range of
conduct and thus cannot serve as a predicate offence for the armed career criminal enhancement.
Johnson correctly notes that the showing of force necessary under Pre-Senate Bill Two
robbery “does not require a high degree of violence.” State v. Carter, 504 N.E.2d 469, 471
(Ohio Ct. App. 1985). Ohio state courts have found that pulling a woman’s purse from her arm
satisfies the statutory force requirement, id. at 470, as does “bumping an elderly victim in order
to distract her attention while another person removed her wallet from her purse,” id. (citing
State v. Grant, No. 43027, 1981 WL 4576, at *2 (Ohio Ct. App. 1981)). The Carter court also
explained that even a simple bump of the victim may result in serious physical harm, especially
where the victim is elderly. Id. The Ohio Supreme Court has held the force requirement to be
satisfied “if the fear of the alleged victim was of such a nature as in reason and common
experience is likely to induce a person to part with property against his will and temporarily
suspend his power to exercise his will by virtue of the influence of the terror impressed.” State v.
Davis, 451 N.E.2d 772, 774 (Ohio 1983).
Recently, this Circuit determined that Ohio’s Pre-Senate Bill Two robbery statute
criminalizes a broader range of conduct than the generic robbery statute and thus does not
qualify as a crime of violence under § 4B1.2(a)(1) of the Sentencing Guidelines. United States v.
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United States v. Johnson
Yates, No. 16-3997, 2017 WL 3402084, at *4 (6th Cir. Aug. 9, 2017). Evaluating Carter, this
Court determined that Ohio decisions “reinforce [the] conclusion that only a minimal level of
force is needed to sustain a conviction under Ohio Rev. Code Ann. § 2911.02(A)(3).” Id. at *5.
The Court concluded that Ohio’s Pre-Senate Bill Two robbery statute could be satisfied by a
minimal amount of contact, rendering the statute more broad than the force required by the
Guidelines or by generic robbery. Id. at *7. “Whether a conviction is a ‘violent felony’ under
the ACCA is analyzed in the same way as whether a conviction is a ‘crime of violence’ under the
United States Sentencing Guidelines.” United States v. McMurray, 653 F.3d 367, 371 n.1 (6th
Cir. 2011) (citing United States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010)). Thus,
precedent in this Circuit now supports Johnson’s position that his two prior convictions for
attempted robbery and robbery under 1982 Pre-Senate Bill Two no longer qualify as violent
felonies under the ACCA.
Consequently, Johnson no longer has three qualifying predicate offenses, and he was
improperly designated as an armed career criminal.
B.
Johnson also challenges his 1997 robbery conviction under Post-Senate Bill Two and his
2005 conviction for complicity to commit aggravated robbery under Ohio Rev. Code Ann.
§§ 1923.02(A)(2) and (5) and §§ 2911.01(A)(1) and (C). Because Johnson’s 1982 Pre-Senate
Bill Two convictions are not violent felonies, we need not address whether Johnson’s remaining
convictions are qualifying predicates for the ACCA enhancement. Whether this Circuit’s
analysis in Yates applies to those statutes does not impact whether Johnson is entitled to
resentencing.
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III.
For the reasons described above, we VACATE Johnson’s sentence and REMAND the
case for resentencing.
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