IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-60574

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

LINDSEY JOHNSON, 

 Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Mississippi

Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.

JAMES E. GRAVES, JR., Circuit Judge:

In this appeal, Defendant Lindsey Johnson raises several challenges to 

his conviction and sentence for carjacking and two related firearm offenses. We 

affirm in full but remand for the district court to correct a clerical error in its

judgment.

I.

On the afternoon of August 2, 2015, Johnson encountered Jeremy 

McNeal at an apartment complex in Jackson, Mississippi. The two men’s

accounts of what happened next differ greatly, but it is undisputed that 

Johnson left the complex at the wheel of McNeal’s Lexus. Police soon spotted 

the car and, acting on a report that the vehicle had been stolen, began a 

United States Court of Appeals

Fifth Circuit

FILED

January 23, 2018

Lyle W. Cayce

Clerk

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No. 16-60574

2

pursuit. After a brief chase, Johnson surrendered and was arrested. A search 

of the Lexus yielded two firearms: a silver Rossi revolver under the driver’s 

seat and a black .40 caliber Smith & Wesson handgun under the passenger’s 

seat. Police also found a small quantity of marijuana. A drug-detecting K-9 

unit was subsequently called to the scene and uncovered a larger quantity of 

marijuana in a hidden compartment under the car’s gearshift. Johnson was 

ultimately charged in a three-count indictment with: carjacking under 

18 U.S.C. § 2119 (Count 1); being a felon in possession of a firearm under 

18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count 2); and brandishing a firearm in 

relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii) (Count 3).

At trial, the Government presented the case as a straightforward 

carjacking. The Government’s principal witness was McNeal, who testified 

that he was talking to a friend named Jaron Thompson when Johnson walked 

up to McNeal’s Lexus, pulled out a handgun, and ordered McNeal to exit the 

car. McNeal complied, and Johnson left in the Lexus. The Government also 

called two other eyewitnesses, Thompson and Jamia Harney. Thompson stated 

that he was walking away from McNeal when he turned around to see Johnson 

standing near McNeal’s car. Johnson showed McNeal a small bag of marijuana, 

then pulled out a revolver and told McNeal to “get out of the car” and “give me 

everything you got.” When McNeal exited the Lexus, Johnson got in and sped 

out of the apartment complex. Harney, a resident of the apartment complex, 

testified that she saw a young man pointing a silver gun at a car. The person 

in the car got out and ran off, and the man holding the gun pulled away in the 

vehicle. 

The defense portrayed the incident as a drug deal gone bad. Johnson 

testified that he was visiting the apartment complex in order to obtain 

information about an assault he had suffered the previous night. Johnson and 

McNeal discussed the assault, after which Johnson sought to purchase drugs 

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from McNeal. McNeal told Johnson to get into the Lexus. When Johnson did 

so, McNeal told him to put whatever money he wanted to spend in the center 

armrest. Johnson opened the armrest and saw a silver revolver, which McNeal 

then attempted to grab. Johnson pushed McNeal’s hand away, causing McNeal

to drop the gun. McNeal said something like “I’m going to get you” and exited 

the Lexus, and Johnson immediately departed in the vehicle.

The jury convicted Johnson on all three counts, and the district court 

sentenced him to 180 months in prison and three years of supervised release.

II.

On cross-examination by the defense, McNeal denied ever owning a gun.

Defense counsel then showed McNeal printouts of several posts from McNeal’s

Facebook page. One post featured a photograph of a handgun on a nightstand

near a large stack of cash; McNeal stated that he did not know who owned the 

gun in the picture. Other posts featured photos of McNeal and a young child 

holding large sums of cash, and one post appears to show marijuana. Upon 

further questioning, McNeal admitted that he only earned $250 a week from 

his employment but denied selling drugs. Defense counsel then sought to 

introduce the Facebook posts into evidence, arguing that they went to McNeal’s 

credibility. The district court, however, sustained the Government’s objection

and denied admission of the posts. Johnson challenges that ruling. 

We review a district court’s evidentiary rulings for abuse of discretion. 

United States v. Tuma, 738 F.3d 681, 687 (5th Cir. 2013); United States v. 

Lowery, 135 F.3d 957, 959 (5th Cir. 1998). “[A]ny error made in excluding 

evidence is subject to the harmless error doctrine and does not necessitate 

reversal unless it affected the defendant’s substantial rights.” Tuma, 738 F.3d 

at 687–88 (internal quotation marks and citation omitted); accord Lowery, 135 

F.3d at 959. “In assessing any error, we must consider the other evidence in 

the case and determine whether the improperly excluded evidence, if admitted, 

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would have had a substantial impact on the jury’s verdict.” Tuma, 738 F.3d at 

688 (internal quotation marks and citation omitted). 

We conclude that even if the district court erred by excluding McNeal’s 

Facebook posts, Johnson has failed to show that that error “‘had substantial 

and injurious effect or influence in determining the jury’s verdict.’” Lowery, 135 

F.3d at 959 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). 

None of the posts directly contradicted any of McNeal’s testimony at trial. The 

photo of the firearm on the nightstand does not establish that McNeal ever 

owned a gun, nor do the photos of cash and marijuana show that McNeal was 

a drug dealer. The photos may have indirectly supported some aspects of 

Johnson’s testimony and diminished McNeal’s credibility to some extent. But 

when viewed in light of the evidence as a whole—especially Thompson and 

Harney’s independent eyewitness testimony and the undisputed facts 

surrounding Johnson’s arrest—we cannot conclude that admission of the 

Facebook posts would have had a “substantial impact” on the jury’s ultimate 

verdict.

III.

Subject to certain limitations not relevant to this case, 18 U.S.C. 

§ 922(g)(1) prohibits any person who has been convicted of “a crime punishable 

by imprisonment for a term exceeding one year” from possessing “any firearm.”

To obtain a conviction under this provision, the Government must prove 

beyond a reasonable doubt “that the defendant previously had been convicted 

of a felony.” United States v. Guidry, 406 F.3d 314, 318 (5th Cir. 2005) (citing 

United States v. Daugherty, 264 F.3d 513, 515 (5th Cir. 2001)).

In connection with the Count 2 charge, Johnson and the Government 

agreed to a stipulation stating that Johnson “had been convicted in a court of 

a crime punishable by imprisonment for a term in excess of one year, that is, a 

felony offense, on or before August 2, 2015.” That stipulation was read to the 

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jury and entered into evidence as an exhibit. Despite that stipulation, however, 

the Government opened its cross-examination of Johnson as follows:

Q: Mr. Johnson, you’ve been convicted of three prior felonies, 

have you not?

A: Yes, sir.

Q: Name them.

A: Two—

Defense counsel then objected. Citing the stipulation and the Supreme Court’s 

ruling in Old Chief v. United States, 519 U.S. 172 (1997), the defense asked the 

district court to declare a mistrial. The court refused to do so but admonished 

the Government (outside of the jury’s presence) that if it “elicit[ed] anything 

else about the nature of these convictions,” particularly the fact that they were 

for carjacking offenses, a mistrial would indeed result. 

In general, “a defendant who takes the stand to testify in his own defense 

may be impeached by proof of prior felony convictions.” United States v. Bray, 

445 F.2d 178, 181 (5th Cir. 1971). In Old Chief, however, the Supreme Court 

held that when a defendant charged with violating § 922(g)(1) offers to concede

the fact of a prior conviction and the “name or nature of the prior offense raises 

the risk of a verdict tainted by improper considerations,” a court may not admit 

the full record of the prior judgment if the purpose of doing so “is solely to prove 

the element of prior conviction.” 519 U.S. at 174. Johnson maintains that the 

Government’s questioning in the present case violated Old Chief and therefore

mandated a mistrial. However, unlike Old Chief, the Government in this case 

only elicited testimony about the number of Johnson’s prior convictions. Due 

to defense counsel’s timely objection, the Government failed to elicit any 

information regarding the “name or nature” of Johnson’s prior convictions. Old 

Chief is therefore inapposite.

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Johnson further contends that the Government’s reference to Johnson’s 

“three prior felonies” constitutes an improper prejudicial remark amounting to 

prosecutorial misconduct. 

We apply a two-step analysis to claims of prosecutorial 

misconduct: First, we assess whether the prosecutor made an 

improper remark. If so, we determine whether the defendant was 

prejudiced—a “high bar.” United States v. Davis, 609 F.3d 663, 677 

(5th Cir. 2010) (internal quotation marks omitted). The prejudice 

prong turns on whether the prosecutor’s remarks “cast serious 

doubt on the correctness of the jury’s verdict.” Id. (internal 

quotation marks omitted). We look to three factors in deciding 

whether the improper remarks “cast serious doubt”: “(1) the 

magnitude of the prejudicial effect of the prosecutor’s remarks, 

(2) the efficacy of any cautionary instruction by the judge, and (3) 

the strength of the evidence supporting the 

conviction.” Id. (internal quotation marks omitted).

United States v. Rodriguez-Lopez, 756 F.3d 422, 433 (5th Cir. 2014).

Assuming that the Government’s remark here was “improper,” we 

conclude that Johnson has failed to demonstrate that he suffered prejudice

sufficient to require a new trial. First, referring to the fact that Johnson had 

sustained three prior felony convictions likely had some prejudicial impact, but 

since the Government did not mention the prior convictions by name, any such

impact was limited. Second, the district court included a limiting instruction 

in the jury charge stating that “[t]he fact that the defendant was previously 

found guilty of a crime does not mean that [he] committed the crime for which 

[he] is on trial, and you must not use this prior conviction as proof of the crime 

charged in this case.” Third, the evidence supporting Johnson’s conviction is 

relatively strong. Taking these factors together, we perceive no basis for 

concluding that the Government’s remark “cast serious doubt on the 

correctness of the jury’s verdict.” Rodriguez-Lopez, 756 F.3d at 433.

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IV.

The district court applied a two-level enhancement to Johnson’s sentence 

pursuant to § 3C1.1 of the Sentencing Guidelines. That provision applies when:

(1) the defendant willfully obstructed or impeded, or attempted to 

obstruct or impede, the administration of justice with respect to 

the investigation, prosecution, or sentencing of the instant offense 

of conviction, and (2) the obstructive conduct related to (A) the 

defendant’s offense of conviction and any relevant conduct; or (B) a 

closely related offense . . . .

U.S.S.G. § 3C1.1. Perjury falls within the scope of § 3C1.1 when a defendant 

“provides ‘false testimony concerning a material matter with the willful intent 

to provide false testimony, rather than as a result of confusion, mistake, or 

faulty memory.’” United States v. Smith, 804 F.3d 724, 737 (5th Cir. 2015) 

(quoting United States v. Dunnigan, 507 U.S. 87, 94 (1993)).

The district court determined that application of this enhancement was 

appropriate based on its finding that Johnson “lied while he took the stand”

and “directly contradicted” the eyewitnesses’ testimony. The court 

acknowledged that the other witnesses’ testimony was not without 

shortcomings but nonetheless concluded that “their stories made much more 

logical sense than that of [Johnson] who was trying to lie—who was lying 

trying to get out of the charges.” The court noted, in particular, that Johnson’s 

“story made no sense in connection with the actions that he took after the 

incident which involved a car chase and an attempt to try to flee the scene”—

actions that Johnson had “no reason” to take “if, in fact, his story was the 

correct one.”

Bearing in mind the “particular deference” we give to a district court’s 

credibility determinations, we conclude that the district court’s findings in this 

case are “plausible in light of the record as a whole,” particularly since there is 

no indication that Johnson’s testimony resulted from “confusion, mistake, or 

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faulty memory.” Smith, 804 F.3d at 737. We stress, however, that our 

conclusion is closely tethered to the particular facts of this case and the reasons 

specifically articulated on the record by the district court. Using § 3C1.1 in 

other, less obvious contexts would impermissibly risk transforming the 

enhancement into a de facto penalty on defendants who exercise their right to 

testify in their own behalf.

V.

Johnson next argues that the district court erroneously calculated his 

base offense level because neither of his two prior state convictions for armed 

carjacking qualifies as a “crime of violence” under § 2K2.1(a)(4)(A) of the 

Sentencing Guidelines. Since Johnson filed objections on these grounds below, 

we review the district court’s “interpretation and application of the Guidelines 

de novo and its factual findings for clear error.” United States v. Johnson, 619 

F.3d 469, 472 (5th Cir. 2010).

Section 2K2.1(a)(4)(A) sets the base offense level for unlawful possession 

of a firearm at 20 if “the defendant committed any part of [that] offense 

subsequent to sustaining one felony conviction of either a crime of violence or 

a controlled substance offense.” The commentary to § 2K2.1 states that the 

term “crime of violence” has “the meaning given that term in § 4B1.2(a) and 

Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1, comment. 

(n.1). Section 4B1.2(a), in turn, defines “crime of violence” to include “any 

offense under federal or state law, punishable by imprisonment for a term 

exceeding one year, that . . . has as an element the use, attempted use, or 

threatened use of physical force against the person of another.” U.S.S.G. 

§ 4B1.2(a)(1).1

 

1 Prior to August 1, 2016, § 4B1.2(a)(2) contained the so-called residual clause, which 

defined “crime of violence” to also include any offense that “otherwise involves conduct that 

presents a serious potential risk of physical injury to another.” Johnson argues that the 

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In Johnson v. United States, 559 U.S. 133 (2010), the Supreme Court 

held that the phrase “physical force,” as used in the Armed Career Criminal 

Act’s (ACCA) definition of “violent felony” (codified at 18 U.S.C. 

§ 924(e)(2)(B)(i)), means “violent force—that is, force capable of causing 

physical pain or injury to another person.” Id. at 140 (emphasis in original). So 

far as this case is concerned, § 4B1.2(a)(1)’s definition of “crime of violence,” as 

incorporated in § 2K2.1(a)(4)(A), is identical to the ACCA’s definition of “violent 

felony.” See 18 U.S.C. § 924(e)(2)(B)(i) (defining “violent felony” to include “any 

crime punishable by imprisonment for a term exceeding one year . . . that . . . 

has as an element the use, attempted use, or threatened use of physical force 

against the person of another”). Thus, Johnson’s definition of “physical force” 

applies in determining whether Johnson’s prior carjacking convictions had “as 

an element the use, attempted use, or threatened use of physical force against 

the person of another.” See United States v. Jones, 752 F.3d 1039, 1041 (5th 

Cir. 2014) (noting that, in interpreting “§ 4B1.2(a) of the Guidelines, our court 

has considered decisions of the Supreme Court construing the Armed Career 

Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), to be instructive”); United 

States v. Marquez, 626 F.3d 214, 217 (5th Cir. 2010); United States v. St. Clair, 

608 F. App’x 192, 194 (5th Cir. 2015) (unpublished decision) (“[O]ur precedent 

regarding ACCA’s definition of a violent felony is directly applicable to the 

Guidelines definition of a crime of violence.”); United States v. Martin, 864 F.3d 

1281, 1283 (11th Cir. 2017) (“[A]n offense that is a violent felony under the 

ACCA is a crime of violence under § 2K2.1.”).

 

residual clause is unconstitutionally vague, but the district court did not base its calculation 

on that provision. In any event, the Supreme Court has held that the Sentencing Guidelines 

are not subject to vagueness challenges under the Due Process Clause. Beckles v. United 

States, 137 S. Ct. 886 (2017).

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Johnson argues that the offense of armed carjacking under Mississippi 

law is not a “crime of violence” because it does not have “as an element the use, 

attempted use, or threatened use” of violent force. “In determining if a prior 

conviction is for an offense enumerated or defined in a Guidelines provision, 

we generally apply the categorical approach and look to the elements of the 

offense enumerated or defined by the Guideline section and compare those 

elements to the elements of the prior offense for which the defendant was 

convicted.” United States v. Howell, 838 F.3d 489, 494 (5th Cir. 2016). “We do 

not consider the actual conduct of the defendant in committing the offense.” Id.

Johnson’s prior convictions were for armed carjacking under the 

Mississippi carjacking statute, which states, in pertinent part: 

(1) Whoever shall knowingly or recklessly by force or violence, 

whether against resistance or by sudden or stealthy seizure or 

snatching, or by putting in fear, or attempting to do so, or by any 

other means shall take a motor vehicle from another person’s 

immediate actual possession shall be guilty of carjacking. 

* * *

(2) Whoever commits the offense of carjacking while armed with or 

having readily available any pistol or other firearm or imitation 

thereof or other dangerous or deadly weapon, including a sawedoff shotgun, shotgun, machine gun, rifle, dirk, bowie knife, butcher 

knife, switchblade, razor, blackjack, billy, or metallic or other false 

knuckles, or any object capable of inflicting death or serious bodily 

harm, shall be guilty of armed carjacking. 

* * *

MISS. CODE ANN. § 97-3-117.

The Mississippi Supreme Court has held that:

[T]he statutory elements for carjacking are (1) a taking of a motor 

vehicle (2) from someone’s immediate actual possession (3) by 

force, stealth or violence. Force or violence includes putting the 

victim in fear of the same. Use of a firearm or other deadly or 

dangerous weapon elevates the crime to armed carjacking.

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Smith v. State, 907 So.2d 292, 296 (Miss. 2005) (construing the statute’s 

elements for purposes of determining whether a jury instruction on a lesserincluded offense should have been given). 

The parties do not cite, and we have not found, any Mississippi caselaw 

explaining the distinction, if any, between carjacking by “force” and carjacking 

by “violence.” So far as armed carjacking is concerned, we conclude that the 

“force or violence” element necessarily entails, at a minimum, the threatened 

use of violent force—i.e., force capable of causing physical pain or injury to 

another person.2 Johnson maintains that the statutory language permits an 

armed carjacking conviction so long as a firearm is “readily available” to the 

perpetrator, regardless of whether the victim is threatened by, or even knows 

about, the presence of such a weapon. This is a possible reading of the statute’s 

language, but we see no realistic probability that the statute would ever be 

applied in such a manner, given the Mississippi Supreme Court’s strong 

indication that actual “use of a firearm” is required to sustain an armed 

carjacking conviction. See Smith, 907 So.2d at 296.

Accordingly, we find no merit in Johnson’s challenge to the district 

court’s application of § 2K2.1(a)(4)(A).

VI.

18 U.S.C. § 924(c)(1)(A)(ii) prohibits brandishing a firearm “during and 

in relation to any crime of violence.” Section 924(c)(3) defines the term “crime 

of violence” as a felony offense that either:

(A) has as an element the use, attempted use, or threatened use 

of physical force against the person or property of another, or

 

2 Neither Johnson nor the Government has presented any argument regarding 

carjacking by “stealth.” We express no opinion on that aspect of Mississippi’s carjacking 

statute, and our decision today does not foreclose future litigants from raising arguments in 

connection therewith.

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(B) that by its nature, involves a substantial risk that physical 

force against the person or property of another may be used in 

the course of committing the offense.

18 U.S.C. § 924(c)(3).

Johnson argues that the district court should have set aside his 

conviction under this provision. First, he contends that § 924(c)(3)(B) is 

unconstitutionally vague based on the Supreme Court’s opinion in Johnson v. 

United States, 135 S. Ct. 2551 (2015). Second, he argues that his Count 1 

carjacking conviction does not satisfy § 924(c)(3)(A)’s “physical force” 

requirement because the federal carjacking statute includes carjacking “by 

intimidation.” See 18 U.S.C. § 2119 (proscribing the “tak[ing] [of] a motor 

vehicle . . . from the person or presence of another by force and violence or by 

intimidation” (emphasis added)). Both of these arguments, however, are 

foreclosed by this circuit’s decision in United States v. Jones, 854 F.3d 737, 

739–41 (5th Cir. 2017) (holding that “the definition of ‘crime of violence’ under 

§ 924(c)(3)(B) is not unconstitutionally vague,” and that carjacking under 18 

U.S.C. § 2119 “fits under the definition set forth in § 924(c)(3)(A)” because 

carjacking by “intimidation” requires a threat of “violent force”).

VII.

The district court’s amended judgment states that “[u]pon release from 

imprisonment, the defendant shall be on supervised release for a term of: 3 

year(s) as to Counts 1 and 2, and 5 years as to Count 5, all to run concurrent 

to each other.” Although neither Johnson nor the Government raises the point 

on appeal, the reference to “Count 5” is plainly a clerical error, given that the 

indictment listed only three counts and the amended judgment elsewhere

refers to Counts 1, 2, and 3. We therefore remand this case to the district court

with instructions to correct this portion of its judgment. See United States v. 

Powell, 354 F.3d 362, 371–72 (5th Cir. 2003); FED. R. CRIM. P. 36.

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VIII.

For these reasons, the judgment and sentence are AFFIRMED. This case 

is REMANDED to the district court for the limited purpose of correcting the 

clerical error in the judgment identified above.

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