United States v. Tyrone Johnson ( 2019 )

Case: 19-10023 Document: 00515168420 Page: 1 Date Filed: 10/22/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 19-10023 FILED
Summary Calendar October 22, 2019
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
TYRONE JEMANE JOHNSON,
Defendant-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CR-72-1
Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM: *
Tyrone Jemane Johnson appeals his guilty plea conviction, 100-month
prison sentence, and three-year term of supervised release for possession of a
firearm by a felon. See 18 U.S.C. §§ 922(g)(1), 924(a)(2). We affirm.
Johnson correctly concedes that precedent forecloses three of his
arguments. We have rejected his argument that § 922(g) does not apply to a
firearm that was in interstate commerce in the distant past. See United States
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 19-10023
v. Fitzhugh, 984 F.2d 143, 146 (5th Cir. 1993). We have also rejected the view
that § 922(g) exceeds Congress’s power under the Commerce Clause. See
United States v. Alcantar, 733 F.3d 143, 145 (5th Cir. 2013). And precedent
also forecloses Johnson’s argument that a Texas conviction for aggravated
assault is not a crime of violence under the Sentencing Guidelines’ definition
of that term. See United States v. Shepherd, 848 F.3d 425, 427-28 (5th Cir.
2017).
We also reject Johnson’s challenge to the enhancement of his sentence
based on reckless endangerment because the district court’s findings on that
issue are not clearly erroneous. See U.S.S.G. § 3C1.2; see also United States v.
Gomez-Valle, 828 F.3d 324, 327 (2016); United States v. Caldwell, 448 F.3d
287, 290 (5th Cir. 2006). Johnson fled the police and then physically resisted
officers once they captured him. By his resistance and struggling, Johnson
created substantial risk of serious bodily injury to another person that a
reasonable person would not create. See United States v. Gould, 529 F.3d 274,
276 (5th Cir. 2008); see also U.S.S.G. § 2A1.4, comment. (n.1); § 3C1.2,
comment. (n.2).
Reviewing for plain error, we reject the challenge to the factual basis for
the conviction as lacking proof that Johnson knew, at the time of the crime of
conviction, that he was a convicted felon. See Puckett v. United States, 556
U.S. 129, 135-36 (2009); see also Rehaif v. United States, 139 S. Ct. 2191, 2194
(2019). Although Johnson is correct that the factual resume and plea colloquy
standing alone do not establish that he knew, when he committed his present
offense, that he was a convicted felon, the record as a whole establishes that
he had such knowledge. See United States v. Ortiz, 927 F.3d 868, 872-73 (5th
Cir. 2019). The presentence report stated that Johnson had served four years
in prison on two felony convictions before committing the crime of conviction.
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No. 19-10023
The presentence report also noted that when Johnson committed the federal
offense, he was on pretrial release on a state charge of unlawful possession of
a firearm by a felon. And Johnson made no effort to dispute the district court’s
implicit determination at sentencing, based on reasonable inferences from the
sentencing hearing evidence and the rest of the record, that he feared police
discovery of a firearm at the time of his arrest for the crime of conviction
because he knew that he was a convicted felon. See Caldwell, 448 F.3d at 290.
Therefore, the question whether Johnson knew of his status as a convicted
felon is at least subject to reasonable debate. See Puckett, 556 U.S. at 135;
Ortiz, 927 F.3d at 872-73; Ellis, 564 F.3d at 377-78. We thus conclude that
Johnson has failed to show plain error. See Puckett, 556 U.S. at 135; Ellis, 564
F.3d at 377-78.
Nor do we see any merit in Johnson’s claim that the indictment was
fatally defective because it did not contain an essential element of the § 922(g)
offense, namely, that Johnson knew of his status as a convicted felon. Johnson
waived this claim by pleading guilty. See Class v. United States, 138 S. Ct.
798, 804-05 (2018); United States v. Daughenbaugh, 549 F.3d 1010, 1012 (5th
Cir. 2008); see also United States v. Cotton, 535 U.S. 625 (2002) (holding that
the failure of an indictment to allege an element of the offense is not a
jurisdictional defect).
AFFIRMED.
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