United States v. Marvin Johnson , 688 F. App'x 404 ( 2017 )

United States Court of Appeals
For the Eighth Circuit
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No. 16-2175
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Marvin Orlando Johnson
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota - St. Paul
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Submitted: April 4, 2017
Filed: May 9, 2017
[Unpublished]
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Before GRUENDER, MURPHY, and KELLY, Circuit Judges.
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PER CURIAM.
Marvin Orlando Johnson pled guilty to using, carrying, and brandishing a
firearm during and in relation to a crime of violence, 18 U.S.C. § 924(c)(1)(A)(ii),
and to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). At sentencing
the district court1 determined that he had four prior convictions that qualified as
violent felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).
The court then sentenced him to 264 months imprisonment. Johnson appeals, arguing
that his prior convictions for simple robbery under Minn. Stat. § 609.24 (2001) and
attempted second degree aggravated robbery under Minn. Stat. § 609.245, subd. 2
(2001) do not qualify as violent felonies. We affirm.
We review de novo whether a conviction qualifies as a violent felony under the
ACCA. United States v. Headbird, 832 F.3d 844, 846 (8th Cir. 2016). The ACCA
imposes a mandatory minimum fifteen year sentence if a defendant has been
convicted as a felon in possession of a firearm "and has three previous convictions
. . . for a violent felony." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony"
to include any federal or state offense punishable by more than one year
imprisonment that "has as an element the use, attempted use, or threatened use of
physical force against the person of another." Id. § 924(e)(2)(B)(i). Physical force
"means violent force—that is, force capable of causing physical pain or injury to
another person." Johnson v. United States, 559 U.S. 133, 140 (2010).
Johnson argues that his prior conviction for attempted second degree
aggravated robbery is not a violent felony because in Minnesota a defendant can be
convicted of attempt without employing violent physical force. Johnson does not
argue that second degree aggravated robbery is not a violent felony. We thus assume
for purposes of this appeal that second degree aggravated robbery qualifies as a
violent felony. See United States v. Azure, 539 F.3d 904, 912 (8th Cir. 2008).
Johnson's argument is foreclosed by the text of the ACCA which defines a violent
felony to include crimes that have as an element the "attempted use" of force against
a person. 18 U.S.C. § 924(e)(2)(B)(i). Moreover, we have previously concluded that
1
The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota.
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Minnesota convictions for attempting to commit a violent felony qualify as ACCA
predicate offenses. See, e.g., United States v. Fogg, 836 F.3d 951, 954–56 (8th Cir.
2016) (concluding that attempted drive by shooting under Minn. Stat. § 609.66, subd.
1e qualifies as a violent felony). The district court thus did not err by determining
that Johnson's prior conviction for attempted second degree aggravated robbery
qualified as a violent felony.
Johnson does not contest the district court's determination that his two prior
convictions for first degree aggravated robbery qualified as violent felonies. The
district court thus did not err in its conclusion that Johnson is an armed career
criminal.
We affirm the judgment of the district court.
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