United States v. Henry Johnson ( 2018 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 14, 2018
Decided February 14, 2018
Before
WILLIAM J. BAUER, Circuit Judge
DIANE S. SYKES, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
No. 17-1274
UNITED STATES OF AMERICA, Appeal from the United States District Court
Plaintiff-Appellee, for the Central District of Illinois.
v. No. 15-20058-001
HENRY L. JOHNSON, Colin S. Bruce,
Defendant-Appellant. Judge.
ORDER
Late one night in September 2015, Danville, Illinois, police officers found Henry
Johnson in possession of a semi-automatic pistol. At the time, Johnson was on parole for
aggravated battery with a firearm, and a federal grand jury charged him with
possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). After the district judge denied his
motion to suppress evidence of the gun, Johnson conditionally pleaded guilty under
Federal Rule of Criminal Procedure 11(c)(1)(C). That agreement became void when the
judge determined that Johnson qualified as an armed career criminal, but Johnson
No. 17-1274 Page 2
declined to withdraw his guilty plea. The judge then imposed a statutory-minimum
sentence of 15 years’ imprisonment and 5 years’ supervised release.
Johnson has filed a notice of appeal, but his appointed lawyer asserts that the
appeal is frivolous and seeks to withdraw. See Anders v. California, 386 U.S. 738 (1967).
Counsel has submitted a brief that explains the nature of the case and addresses
potential issues that an appeal of this kind might be expected to involve. We notified
Johnson that he may respond to counsel’s motion, but he has not done so. See CIR.
R. 51(b). Because the analysis in the brief appears to be thorough, we focus our review
on the subjects counsel discusses.1 See United States v. Bey, 748 F.3d 774, 776 (7th Cir.
2014); United States v. Wagner, 103 F.3d 551, 553 (7th Cir. 1996).
In her Anders brief, counsel reports that she consulted with Johnson, and he does
not wish to challenge his guilty plea. Thus she appropriately refrains from discussing
the adequacy of the plea colloquy, see FED. R. CRIM. P. 11(b), or the voluntariness of the
plea. See United States v. Konczak, 683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox,
287 F.3d 667, 670–71 (7th Cir. 2002).
Next counsel discusses a potential challenge to the district judge’s classification
of Johnson as an armed career criminal. That determination was based on Johnson’s
1994 Illinois conviction for armed robbery, 1999 Illinois conviction for aggravated
battery of a peace officer, and 2008 conviction for aggravated battery with a firearm.
During sentencing Johnson conceded that the first and third of these offenses constitute
violent felonies. He argued that the second was not a violent felony, in part, because the
Illinois aggravated battery statute (formerly 720 ILCS 5/12-4 but now 5/12-3.05) is
indivisible and thus not subject to the modified-categorical approach to determining
whether the crime is a “violent felony” for purposes of the Armed Career Criminal Act.
As counsel correctly notes, however, this court recently rejected that precise argument
in the context of the sentencing guidelines, which we interpret the same way.
See United States v. Lynn, 851 F.3d 786, 797 (7th Cir. 2017) (career offender guideline);
United States v. Montez, 858 F.3d 1085, 1092 (7th Cir. 2017), pet. for cert. filed (Dec. 15,
1Transcripts of the proceedings were not included in the record on appeal or
docketed in the district court, but we accept counsel’s representation that she reviewed
them.
No. 17-1274 Page 3
2017) (same); see also Hill v. Werlinger, 695 F.3d 644, 649 (7th Cir. 2012) (ACCA);
United States v. Rodriguez-Gomez, 608 F.3d 969, 973–74 (7th Cir. 2010) (U.S.S.G.§ 2L1.2).
We agree with counsel that it would be frivolous for Johnson to argue that
aggravated battery of a peace officer is not a violent felony. To convict Johnson of that
offense, the state needed proof that Johnson (1) committed a battery by means other
than the discharge of a firearm, and (2) knew that the individual harmed was a police
officer. 720 ILCS 5/12-4 (1999). The underlying battery statute requires proof that the
defendant either (1) caused the victim bodily harm, or (2) made physical contact of an
insulting or provoking nature with the victim. 720 ILCS 5/12-3 (1999). A violation of the
first clause (bodily harm) is a violent felony, while a violation of the second is not.
See Hill, 695 F.3d at 649–50. The indictment and judgment from Johnson’s 1999 case
establish that he committed aggravated battery by causing bodily harm to a peace officer,
dooming any challenge to the use of that conviction as a predicate for the armed career
criminal classification.
Counsel last considers whether Johnson could challenge the district judge’s
guidelines calculation or the reasonableness of his 15-year sentence. But Johnson
received the statutory minimum sentence based on the judge’s correct determination
that Johnson qualifies as an armed career criminal. See 18 U.S.C. § 924(e)(1). Without a
government motion under 18 U.S.C. § 3553(e), the judge lacked authority to impose a
term of imprisonment lower than the statutory minimum. See Dorsey v. United States,
132 S. Ct. 2321, 2327 (2012); United States v. Johnson, 580 F.3d 666, 673 (7th Cir. 2009).
So any challenge to the judge’s guidelines calculation or sentence would be frivolous.
See United States v. Abbas, 560 F.3d 660, 667 (7th Cir. 2009).
Thus, we GRANT counsel’s motion to withdraw and DISMISS the appeal.