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)
D. Medinger, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellant/Cross-Appellee.
Morgan Wesneski, GIBSON, DUNN & CRUTCHER LLP, Washington,
D.C., for Appellee/Cross-Appellant.
K. Hur, United States Attorney, Zachary B. Stendig, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellant/Cross-Appellee.
S. Patel, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greenbelt,
Maryland; Matthew D. McGill, GIBSON, DUNN & CRUTCHER LLP,
Washington, D.C., for Appellee/Cross-Appellant.
MOTZ, DIAZ, and THACKER, Circuit Judges.
GRIBBON MOTZ, CIRCUIT JUDGE
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.
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.
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.
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.
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
Government timely appealed and Johnson timely cross-appealed.
We first address the trial challenges and then ...