Argued: December 13, 2018
from the United States District Court for the Western
District of Virginia, at Charlottesville. Norman K. Moon,
Senior District Judge. (3:02-cr-00015-NKM-RSB-1)
M. Lorish, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charlottesville, Virginia, for Appellant.
Jennifer R. Bockhorst, OFFICE OF THE UNITED STATES ATTORNEY,
Frederick T. Heblich, Jr., Interim Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Roanoke, Virginia, for
T. Cullen, United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Roanoke, Virginia, for Appellee.
WILKINSON, HARRIS, and QUATTLEBAUM, Circuit Judges.
WILKINSON, CIRCUIT JUDGE
Willie Johnson challenges the district court's order
resentencing him for armed bank robbery and related crimes
following a successful petition vacating his original
sentence under 28 U.S.C. § 2255. The district court
honored the sentencing recommendation in Johnson's
original plea agreement, in which the government agreed not
to seek a mandatory life sentence under the federal
three-strikes law. See 18 U.S.C. § 3559(c). Johnson now
argues that he received no benefit from the plea agreement
because his prior conviction for a New York robbery offense
would not have counted as his third strike, and he thus would
have been ineligible for a mandatory life sentence. We
disagree. The text and structure of § 3559(c) reveal a
congressional intent to encompass state laws such as the New
York robbery offense here, which shares the essential
characteristics of the enumerated robbery offenses under
federal law. We therefore affirm the district court's
record of the sentencing hearing revealed the following: On
February 1, 2002, Willie Johnson robbed federally insured
Farmer and Merchants Bank in Afton, Virginia along with his
then-girlfriend's son, Khalid Ahmad. Both men wore ski
masks and carried firearms-Johnson an AR-15 rifle, Ahmad a
.40 caliber pistol. Johnson ordered customers to get on the
floor and, when one hesitated, yelled, "I told you to
get down, I don't want to have to shoot nobody."
J.A. 219. He then commanded tellers to stuff the bank's
cash in a pillowcase, this time with less subtlety: "If
you don't hurry up I'll kill you, don't think I
won't kill you." Id. After collecting about
six-thousand dollars, Johnson and Ahmad sped away at more
than one hundred miles-per-hour in a vehicle they had stolen
earlier that morning. In the course of the attempted getaway,
the men jumped a curb and drove through a school playground.
They ditched the car at the edge of a forested area near the
school and ran into the woods. Witnesses heard gunshots.
Schoolchildren were rushed indoors. While the men evaded
capture that day, they were apprehended shortly after.
federal grand jury indicted Johnson for conspiring to commit
bank robbery and conspiring to use and carry a firearm in
relation to a crime of violence, in violation of 18 U.S.C.
§ 371 (Count One); robbing a bank with a deadly weapon,
in violation of 18 U.S.C. § 2113(a) and (d) (Count Two);
brandishing a semiautomatic assault weapon during and in
relation to a crime of violence, in violation of 18 U.S.C.
§ 924(c) (Count Three); and possessing a firearm as a
convicted felon, in violation of 18 U.S.C. § 922(g)(1),
with three previous convictions for violent felony offenses
under 18 U.S.C. § 924(e) (the Armed Career Criminal Act,
or ACCA) (Collectively, Count Five).
Presentence Investigation Report also revealed the following:
Johnson's criminal record, even excluding numerous
juvenile adjudications and parole violations, was extensive.
In 1975, Johnson assaulted a man with a pool cue, and he
later pled guilty to New York assault charges. In 1976,
Johnson pled guilty to New York Robbery and was sentenced to
seven years' incarceration. He had robbed a man at
gunpoint, pistol-whipping the man near his eye and causing a
concussion. In 1983, Johnson was charged with ten bank
robberies in the United States District Court for the Eastern
District of New York. He pled guilty to two of them and
received a sentence of ten years' imprisonment. In 1994,
he burglarized at least two homes, crimes for which he
subsequently pled guilty to attempted burglary and was
sentenced to 30-60 months' incarceration. In 1999,
Johnson was convicted of three crimes related to breaking
into a residence, for which he received three consecutive
one-year terms in jail. The present offenses took place in
law provides for lengthier sentences for repeat, violent
offenders like Johnson. Most relevant to Johnson's case
was the federal three-strikes law, which provides for a
mandatory sentence of life in prison after a third conviction
for a "serious violent felony." See 18 U.S.C.
§ 3559(c)(2)(F) (listing "robbery" as a
"serious violent felony"). Leading up to
Johnson's trial for the instant offenses, the United
States filed an Information, see 21 U.S.C. § 851(a), a
document alerting the court that Johnson had two prior
"serious violent felony" convictions-specifically,
Johnson's 1976 New York robbery and 1983 federal bank
robbery convictions. A conviction in the 2002 bank robbery
case, in other words, would have been Johnson's third
at a mandatory life sentence, Johnson agreed to plead guilty
on the third day of trial. Johnson specified in the plea
agreement, "In exchange for my pleas of guilty to the
charges in the Indictment, the United States will move to
dismiss the Information filed pursuant to 18 U.S.C. §
3559(c) and 21 U.S.C. § 851(a)." J.A. 23. The
agreement also contained the following sentencing
recommendation: "I agree to an upward departure on Count
Two [bank robbery] to the maximum statutory sentence for that
charge [of 300 months]. I agree to this recommendation, in
exchange for the United States moving to dismiss the
Information that would otherwise enhance my sentence to
mandatory life imprisonment." J.A. 24.
United States honored its end of the bargain by dismissing
the Information. The United States District Court for the
Western District of Virginia then held Johnson to his end of
the bargain, imposing concurrent 300-month sentences for bank
robbery (Count Two) and under the Armed Career Criminal Act
(Count Five), along with a concurrent 60-month sentence for
the conspiracy charge (Count One). This sentence fell within
Johnson's then-mandatory guidelines range of 262-327
months. The district court also sentenced Johnson to 120
months in prison for brandishing a semiautomatic assault
weapon during and in relation to a crime of violence (Count
Three), to be served consecutively. Johnson's effective
sentence totaled 420 months in prison.
dozen years later, the Supreme Court ruled that ACCA's
residual clause was impermissibly vague under the Fifth
Amendment's Due Process Clause. See Johnson v. United
States, 135 S.Ct. 2551, 2563 (2015). The defendant then
filed a petition under 28 U.S.C. § 2255, seeking to
vacate his 420-month sentence because Count Five had included
a charge based on ACCA's residual clause. See 18 U.S.C.
§ 924(e)(2)(B). There remained a dispute whether ACCA
still applied to Johnson without the residual clause. ACCA
properly applied if Johnson had three previous "violent
felony" convictions. Id. A violent felony
includes a state felony that "has as an element the use,
attempted use, or threatened use of physical force against
the person of another." 18 U.S.C. § 924(e) (the
force clause). Johnson effectively conceded that his two 1983
federal bank robbery convictions counted as violent felonies.
See United States v. McNeal, 818 F.3d ...