United States v. Dequavious Johnson , 572 F. App'x 833 ( 2014 )

Case: 13-14335 Date Filed: 07/21/2014 Page: 1 of 5
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-14335
Non-Argument Calendar
________________________
D.C. Docket No. 1:12-cr-00257-AT-AJB-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DEQUAVIOUS JOHNSON,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(July 21, 2014)
Before HULL, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
Case: 13-14335 Date Filed: 07/21/2014 Page: 2 of 5
Dequavious Johnson, a federal prisoner, appeals his 70-month sentence after
pleading guilty to possessing a firearm as a felon, in violation of 18 U.S.C.
§ 922(g)(1). Mr. Johnson argues that the residual clause in U.S.S.G. § 4B1.2(a)(2)
defining a “crime of violence” is unconstitutionally vague. Mr. Johnson further
asserts that “robbery by sudden snatching” is not a “crime of violence.” He
acknowledges that our precedent forecloses both of these arguments and only
intends to preserve them for consideration by this Court sitting en banc or the
Supreme Court. We affirm.
We review constitutional sentencing issues de novo. See United States v.
Harris, 741 F.3d 1245, 1248 (11th Cir. 2014). We also review de novo whether a
prior conviction qualifies as a “crime of violence” under the sentencing guidelines.
See United States v. Contreras, 739 F.3d 592, 594 (11th Cir. 2014).
The standard base offense level for a violation of § 922(g)(1) is 14, see
U.S.S.G. § 2K2.1(a)(6)(A), but is increased to 20 if the defendant committed the
instant offense “subsequent to sustaining one felony conviction . . . of a crime of
violence.” See § 2K2.1(a)(4)(A). “Crime of violence” is defined, in relevant part,
in U.S.S.G. § 4B1.2 as “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that . . . (2) is burglary of a dwelling,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” U.S.S.G. §
2
Case: 13-14335 Date Filed: 07/21/2014 Page: 3 of 5
4B1.2(a) (emphasis added). The residual clause in § 4B1.2(a)(2) (emphasized
above) is at issue here.
“[A] prior panel’s holding is binding on all subsequent panels unless and
until it is overruled or undermined to the point of abrogation by the Supreme Court
or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352
(11th Cir. 2008). As acknowledged by Mr. Johnson, our prior precedent forecloses
his argument that the residual clause is unconstitutionally vague.
The definitions of “crime of violence” under the Sentencing Guidelines and
“violent felony” under the Armed Career Criminal Act (ACCA) contain virtually
identical residual clauses. See United States v. Alexander, 609 F.3d 1250, 1253
(11th Cir. 2010) (explaining that the definitions of “violent felony” and “crime of
violence” are “virtually identical” and considering whether a crime is a “violent
felony” is similar to considering whether a crime is a “crime of violence”).
Several years ago, the Supreme Court rejected the argument that the residual
clause of the ACCA is unconstitutionally vague. See James v. United States, 550
U.S. 192, 210 n.6 (2007). The Court stated that the “requirement that an
unenumerated crime ‘otherwise involve conduct that presents a serious potential
risk of physical injury to another’ is not so indefinite as to prevent an ordinary
person from understanding what conduct it prohibits.” Id. In Sykes v. United States,
564 U.S. __, 131 S. Ct. 2267, 2277 (2011) (citation and quotation marks omitted),
3
Case: 13-14335 Date Filed: 07/21/2014 Page: 4 of 5
the Supreme Court similarly noted that ACCA’s residual clause “states an
intelligible principle and provides guidance that allows a person to conform his or
her conduct to the law. Although this approach may at times be more difficult for
courts to implement, it is within congressional power to enact.” We too have
concluded that the residual clause of the ACCA is not unconstitutionally vague.
See United States v. Gandy, 710 F.3d 1234, 1239 (11th Cir. 2013).
Mr. Johnson’s argument that “robbery by sudden snatching” does not fit into
the definition of a “crime of violence” is similarly foreclosed by analogous
precedent. Although have not held explicitly that the residual clause of U.S.S.G.
§ 4B1.2(a)(2) includes “robbery by sudden snatching,” we have held that “robbery
by sudden snatching” is a “violent felony” under the residual clause of the ACCA.
See United States v. Welch, 683 F.3d 1304, 1312-13 (11th Cir. 2012). In Welch, we
concluded that “robbery by sudden snatching” presents “a serious risk of physical
injury to another.” Id. at 1312.
Based on Supreme Court and Eleventh Circuit precedent, we reject Mr.
Johnson’s argument that the residual clause of U.S.S.G. § 4B1.2 is
unconstitutionally vague. We also conclude, under our analogous precedent, that
the district court properly calculated the base offense level as 20 because
Mr. Johnson’s prior felony conviction of “robbery by sudden snatching”
constitutes a “crime of violence.” Accordingly, we affirm.
4
Case: 13-14335 Date Filed: 07/21/2014 Page: 5 of 5
AFFIRMED.
5