United States v. Johnson

Opinion

FILED United States Court of Appeals Tenth Circuit

February 2, 2012 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker Clerk of Court TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 10-1530 (D.C. No. 1:10-CR-00189-PAB-1) v. (D. Colo.) LEON JUNIOR JOHNSON,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before GORSUCH, SEYMOUR, and MATHESON, Circuit Judges.

The sole question presented by Leon Johnson in this case is “whether the

instant offense of conviction under 18 U.S.C. §§ 1791(a)(2), (b)(3) and (d)(1)(B),

possession of a weapon in prison, is a ‘crime of violence’ pursuant to U.S.S.G.

§§ 4B1.1, 4B1.2(a).” Opening Br. at 1. Mr. Johnson urges us to answer that

question in the negative. But after he and the government finished briefing this

* After examining the briefs and the appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. appeal, we published United States v. Perez-Jiminez, 654 F.3d 1136 (10th Cir.

2011). And there we held that possessing a weapon in prison can qualify as a

“crime of violence” meriting a U.S.S.G. §§ 4B1.1, 4B1.2(a) sentencing

enhancement. We are, of course, now bound by that ruling and must reject Mr.

Johnson’s contrary arguments.

Still there remains one wrinkle. In Perez-Jiminez we also said that courts

must engage in a “conduct-specific inquiry” before concluding that any particular

act qualifies for the crime of violence enhancement. 654 F.3d at 1140. But a

comparison of the specific conduct in Perez-Jiminez and in Mr. Johnson’s case

reveals no material difference. In Perez-Jiminez, the specific conduct involved a

prisoner’s possession of two five-and-a-half inch metal knives or shanks, and we

held this sufficient to trigger the sentencing guideline’s crime of violence

enhancement. Here, the specific conduct involved Mr. Johnson’s possession in

prison of a single eight-inch metal knife or shank. It is difficult to see how a

prisoner’s possession of one longer knife is any less dangerous than his

possession of two shorter ones, or how we might deem one offense to be a crime

of violence and the other not. The outcome of this case is thus controlled both by

the general legal principles set forth in Perez-Jiminez and by the application of

those principles in that case.

-2- Affirmed.

ENTERED FOR THE COURT

Neil M. Gorsuch Circuit Judge

-3-