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Johnson v. United States

United States District Court, D. Minnesota

June 5, 2019

MARVIN ORLANDO JOHNSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          Marvin Orlando Johnson, pro se.

          ORDER

          Patrick J. Schiltz United States District Judge

         In June 2015, petitioner Marvin Johnson pleaded guilty to two charges: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and (2) brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). ECF No. 78 at 11-13, 20, 28. After finding that Johnson had three previous convictions for violent felonies for purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), the Court sentenced Johnson to a total of 264 months' imprisonment-the mandatory minimum 15-year term for being a felon in possession plus the mandatory consecutive 7-year term for brandishing a firearm, ECF No. 71 at 2. The United States Court of Appeals for the Eighth Circuit affirmed Johnson's sentence on direct appeal. ECF No. 81 at 3.

         This matter is before the Court on Johnson's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF Nos. 87, 88, 92, 93, 94. Johnson argues (as he did on direct appeal) that the Court erred in finding that he had committed three violent felonies and thus was subject to the 15-year mandatory minimum under the ACCA. Johnson also argues that his brandishing conviction must be vacated because the crime that he committed while brandishing a firearm-interference with commerce by robbery in violation of the Hobbs Act, 18 U.S.C. § 1951(a)-is not a crime of violence for purposes of 18 U.S.C. § 924(c)(1)(A)(ii). Finally, Johnson argues that the Court applied an incorrect base offense level under the United States Sentencing Guidelines.

         The Court has reviewed Johnson's motion and the record of prior proceedings in this case, as required by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts.[1] Because the record conclusively demonstrates that Johnson is not entitled to relief, no hearing is necessary. 28 U.S.C. § 2255(b); Noe v. United States, 601 F.3d 784, 792 (8th Cir. 2010).[2]

         I. FELON IN POSSESSION

         Johnson was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The ACCA required that Johnson be sentenced to at least 15 years in prison if he had “three previous convictions by any court . . . for a violent felony . . . .” § 924(e)(1). The “force” or “elements” clause of the ACCA defines “violent felony” to include any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i).

         The Court found that four of Johnson's prior felony convictions under Minnesota law-one for simple robbery, one for attempted second-degree aggravated robbery, and two for first-degree aggravated robbery-were violent felonies under the force clause of the ACCA. ECF No. 79 at 6. On appeal, Johnson argued that neither his conviction for simple robbery nor his conviction for attempted second-degree aggravated robbery were violent felonies for purposes of the ACCA. The Eighth Circuit held that Johnson's attempted second-degree aggravated robbery conviction was a violent felony and that that conviction, together with the two first-degree aggravated robbery convictions, gave Johnson at least three predicate offenses. United States v. Johnson, 688 Fed.Appx. 404 (8th Cir. 2017). The Eighth Circuit did not need to reach the question of whether Johnson's simple-robbery conviction was also a violent felony.

         In his § 2255 motion, Johnson argues that his two first-degree aggravated robbery convictions are not violent felonies under the ACCA. But his argument is foreclosed by Eighth Circuit precedent. In United States v. Libby, the Eighth Circuit held that, because it is impossible to commit first-degree aggravated robbery in Minnesota without committing simple robbery, and because it is impossible to commit simple robbery in Minnesota without “the use, attempted use, or threatened use of physical force against the person of another, ” 880 F.3d 1011, 1015 (8th Cir. 2018), a defendant who has been convicted of first-degree aggravated robbery has been convicted of a violent felony under the force clause of the ACCA, id. at 1015-16.

         Johnson argues, however, that Libby has been undermined by two subsequent Supreme Court decisions: Sessions v. Dimaya, 138 S.Ct. 1204 (2018), and Stokeling v. United States, 139 S.Ct. 544 (2019). But neither decision casts doubt on Libby's conclusion that first-degree aggravated robbery is a violent felony under the ACCA. In Dimaya, the Supreme Court held that the definition of “crime of violence” in the residual clause of 18 U.S.C. § 16 was unconstitutionally vague. 138 S.Ct. at 1210. That definition closely resembled the definition of “violent felony” in the residual clause of the ACCA-a definition that the Supreme Court had found unconstitutionally vague in Johnson v. United States, 135 S.Ct. 2551 (2015). But the residual clause is irrelevant to Johnson's case. His first-degree aggravated robbery convictions are violent felonies under the force clause, not the residual clause, of the ACCA. And thus it is not surprising that, subsequent to Dimaya, the Eighth Circuit has continued to hold that first-degree aggravated robbery is a violent felony under the ACCA. See, e.g., Douglas v. United States, 759 Fed.Appx. 554, 555 (8th Cir. 2019) (affirming “the district court's conclusion that [a defendant's] two prior Minnesota convictions for first-degree aggravated robbery qualified as ‘violent felon[ies]' for purposes of section 924(e)” (footnote omitted)); United States v. Henderson, 744 Fed.Appx. 329, 330 (8th Cir. 2018) (holding that because first-degree aggravated robbery in Minnesota is a predicate offense under the ACCA, it is also a predicate offense under the career-offender provisions of the Sentencing Guidelines); United States v. Perry, 908 F.3d 1126, 1130-31 (8th Cir. 2018) (holding that first-degree aggravated robbery in Minnesota is a violent felony under the ACCA).[3]

         Stokeling also does not help Johnson. This Court has recently explained at length why “[n]othing about the Supreme Court's decision in Stokeling calls . . . into question” the many cases in which the Eighth Circuit has held that, under Minnesota law, first- degree aggravated robbery and simple robbery are violent felonies for purposes of the ACCA. United States v. Pettis, No. 15-CR-0233 (PJS/FLN), 2019 WL 2177361, at *4 (D. Minn. May 20, 2019). The Court adopts its analysis here.

         Finally, Johnson argues that treating his convictions for first-degree aggravated robbery as violent felonies for purposes of the ACCA violates his rights under the Fifth and Sixth Amendments. Johnson points out that, in Libby, the Eighth Circuit held that first-degree aggravated robbery under Minnesota law qualifies as a violent felony because (1) simple robbery is a lesser-included offense of first-degree aggravated robbery and (2) simple robbery is a violent felony. But, Johnson argues, the fact that someone who is convicted of simple robbery commits violence cannot be used against him because he was never charged with-or convicted of-simple robbery. In other words, as Johnson sees it, he is being punished for a crime (simple robbery) that he was never charged with or convicted of committing.

         At bottom, Johnson is arguing that Libby was wrongly decided. Needless to say, this Court has no authority to overturn Libby. In any event, Johnson is incorrect about Libby. Johnson was charged with-and pleaded guilty to-first-degree aggravated robbery. He was thus charged with-and convicted of-committing each and every element of that crime. One of those elements was that he “committ[ed] a robbery[.]” Minn Stat § 609.245, subd. 1.[4] Hence, when Johnson pleaded guilty to first-degree aggravated robbery, he admitted that he had committed simple robbery-a crime that, according to the Eighth Circuit, [5] necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). Johnson is not being punished for an act that he was not charged with or convicted of committing.

         For these reasons, the Court finds that Johnson was properly found to be an armed career criminal and thus subject to a ...


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