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[Unpublished]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 court determined that he had four prior convictions that qualified as 1

violent felonies under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). 

The court then sentenced himto 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 thatsecond 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

The Honorable Patrick J. Schiltz, United States District Judge for the District 1

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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