United States v. Johnson

616 F.3d 85, 2010 U.S. App. LEXIS 15965, 2010 WL 2991078
Court of Appeals for the Second Circuit·Decided August 2, 2010·No. Docket 08-5245-cr·Published·Cited by 19 cases

Opinions

JOSÉ A. CABRANES, Circuit Judge:

We consider whether a violation of Connecticut General Statute (“Conn.Gen. Stat.”) § 53a-179b, entitled “Rioting at a correctional institution,” qualifies as a “violent felony” for the purpose of the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e)(2)(B) (2006). Defendant Keith Johnson (“defendant” or “Johnson”) appeals from a judgment of the United States District Court for the District of Connecticut (Ellen Bree Burns, Judge) sentencing him principally to 240 months’ imprisonment. Johnson argues that the District Court erred in concluding that he is an armed career criminal under § 924(e) and in calculating his sentence under the United States Sentencing Guidelines (“U.S.S.G.” or the “Guidelines”) based on that finding.

[87] BACKGROUND

On July 9, 2004, Johnson was convicted by a jury of one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He was thereafter sentenced principally to 262 months’ imprisonment. In calculating Johnson’s sentence, the District Court determined that Johnson had been convicted of a “violent felony” on three prior occasions. Because he was being sentenced for possession of a firearm in violation of § 922(g), those prior convictions for violent felonies rendered Johnson an “armed career criminal” for purposes of the ACCA. See 18 U.S.C. § 924(e).1 Johnson did not object at sentencing to the District Court’s finding that he qualified as an armed career criminal.

Johnson timely appealed from the judgment entering his conviction and imposing his sentence. We affirmed his conviction but, in light of the Supreme Court’s decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we remanded for resentencing pursuant to United States v. Fagans, 406 F.3d 138 (2d Cir.2005) (holding that a defendant who preserves a Sixth Amendment claim is entitled to resentencing in light of Booker). See United States v. Johnson, 265 Fed.Appx. 8 (2d Cir.2008). In our summary order affirming Johnson’s conviction, we noted that we did not reach many of defendant’s sentencing challenges because of our decision to remand. Id. at 11. We did, however, consider Johnson’s objection to the District Court’s finding that he qualified as an armed career criminal under the terms of § 924(e)(1) and we held that the District Court’s finding was not plain error. Id. (“While not every conceivable instance of rioting in a correctional facility necessarily poses a serious risk of potential injury to others, in the ordinary case, the conduct encompassed by the crime does present such a risk.”).

On remand for resentencing in the District Court, defendant argued that he should not be sentenced pursuant to the ACCA because one of his predicate convictions — namely, rioting at a correctional institution in violation of Conn. Gen.Stat. § 53a-179b — was not for a “violent felony” within the meaning of the ACCA.2 The District Court disagreed, and once again calculated Johnson’s Guidelines sentence range in accordance with its finding that he qualified as an armed career criminal. The Court imposed a below-Guidelines sentence of 240 months’ imprisonment. On appeal, defendant argues that the District Court erred in sentencing him as an armed career criminal.

DISCUSSION

The only question presented in this appeal is whether defendant’s conviction for rioting at a correctional institution in violation of Conn. Gen.Stat. § 53a-179b quali[88] fies as a conviction for a “violent felony” under the ACCA, 18 U.S.C. § 924(e)(2)(B). “We review de novo the District Court’s conclusion that a prior offense is a violent felony.” United States v. Daye, 571 F.3d 225, 228 (2d Cir.2009); accord United States v. Lynch, 518 F.3d 164, 168 (2d Cir.2008).

The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” and that

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(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®

18 U.S.C. § 924(e)(2)(B). The parties dispute whether rioting at a correctional institution is a “violent felony” under the ACCA’s definition. Although the Connecticut statute’s title suggests an obvious answer, we must look beyond its name and examine the precise conduct that the law proscribes. Moreover, we employ a “categorical approach” in our analysis — meaning that we must “consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) (citing Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). As the Supreme Court explained in James v. United States, the categorical approach does not “requir[e] that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony.... Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.” 550 U.S. 192, 208, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (emphasis added).

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United States v. Johnson, 616 F.3d 85, 2010 U.S. App. LEXIS 15965, 2010 WL 2991078 (2d Cir. 2010).

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