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United States v. Johnson

United States Court of Appeals, Fourth Circuit

December 18, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
MARTIN JOHNSON, Defendant-Appellee. UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
MARTIN JOHNSON, Defendant-Appellant.

          Argued: October 31, 2019

          Appeals from the United States District Court for the District of Maryland, at Baltimore. George L. Russell, III, District Judge. (1:16-cr-00552-GLR-1)

         ARGUED:

          Jason D. Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant/Cross-Appellee.

          Joshua Morgan Wesneski, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee/Cross-Appellant.

         ON BRIEF:

          Robert K. Hur, United States Attorney, Zachary B. Stendig, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellant/Cross-Appellee.

          Paresh S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt, Maryland; Matthew D. McGill, GIBSON, DUNN & CRUTCHER LLP, Washington, D.C., for Appellee/Cross-Appellant.

          Before MOTZ, DIAZ, and THACKER, Circuit Judges.

          DIANA GRIBBON MOTZ, CIRCUIT JUDGE

         A jury found Martin Johnson, a convicted felon, guilty of unlawful possession of a firearm. The district court, declining to apply two enhancements under the Armed Career Criminal Act (ACCA) and United States Sentencing Guidelines, sentenced Johnson to 51 months' imprisonment and three years' supervised release. The Government appeals, arguing that the district court erred in refusing to count Johnson's prior Maryland conviction for robbery as a "violent felony" under the ACCA and his prior Maryland conviction for possession with intent to distribute as a "controlled substance offense" under the Sentencing Guidelines. Johnson cross-appeals, raising two evidentiary challenges to his conviction and contesting the district court's two-level upward departure in calculating his criminal history at sentencing. For the reasons that follow, we affirm the conviction but vacate Johnson's sentence and remand the case for resentencing.

         I.

         Around 5:40 AM on September 14, 2016, Baltimore police officers ran a registration check on a car parked at a gas station. They learned that the car's registration was suspended. When the officers activated their lights and sirens and approached, the car was driven away. The police pursued the vehicle and quickly stopped it.

         The officers asked the driver, Martin Johnson, to step out. When he refused, they opened a car door and removed him from the vehicle. The officers placed Johnson under arrest for fleeing and eluding police. The officers searched the car and found marijuana and then searched Johnson and found more marijuana. During the latter search, a firearm fell out of the leg of Johnson's pants. In total, the police recovered from Johnson's vehicle and person multiple bags of marijuana, the gun, five rounds of ammunition, and $1, 363 cash.

         The Government charged and a jury convicted Johnson of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g). The presentence report (PSR) asserted that Johnson qualified for a fifteen-year mandatory minimum sentence under the ACCA based on three prior convictions, including a 1995 Maryland robbery conviction. In calculating Johnson's base offense level, the PSR concluded that his prior Maryland conviction for possession with intent to distribute constituted a "controlled substance offense" under the Sentencing Guidelines, which would enhance Johnson's base offense level from 14 to 20.

         At Johnson's sentencing hearing, the district court rejected both recommendations. The court held that Maryland robbery did not qualify as an ACCA predicate violent felony because it requires no or de minimis force, and consequently that Johnson was not subject to the ACCA's fifteen-year mandatory minimum. The court determined that Maryland possession with intent to distribute did not constitute a controlled substance offense under the Guidelines because its distribution element may be satisfied with a mere "offer of distribution." The district court thus set Johnson's base offense level at 14. After enhancing Johnson's offense level for his obstructing or impeding the administration of justice and the gun at issue being stolen, the court reached a final offense level of 18. In determining Johnson's criminal history category, the court departed upward by two levels, from category III to V, based on an underrepresentation of Johnson's criminal history. The offense level of 18 and criminal history category of V resulted in an advisory Guidelines range of 51-63 months. The district court sentenced Johnson to 51 months' incarceration and three years' supervised release.

         The Government timely appealed and Johnson timely cross-appealed. We first address the trial challenges and then ...


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