NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0651n.06
Case No. 16-2033
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. MARK SAMUEL JOHNSON, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MICHIGAN

O P I N I O N

BEFORE: COLE, Chief Judge; McKE AGUE and STRANCH, Circuit Judges. McKEAGUE, Circuit Judge. Mark Johnson pleaded gui lty to being a felon in possession of a firearm. At sentencing, the district court concluded that Johnson’s prior conviction for armed robbery under Michigan law qualified as a crime of violence under § 4B1.2(a)(1) of the Sentencing Guidelines (the “elements clau se”), and enhanced his base offense level accordingly. Johnson contends that this was error. Even if Johnson were right that Michigan armed robbery does not qualify as a cr ime of violence under the Guidelines’ elements clause, it does so qualify under th e residual clause, which was still in effect at the time of his original sentencing. Therefore, we reject Johnson’s challenge and AFFIRM the district court.Case No. 16-2033 United States v. Mark Samuel Johnson

- 2 - I In September 2015, Kalamazoo, Michigan po lice officers encountered Mark Johnson walking around with a loaded gun. Told to put the gun down, Johnson instead pointed the gun at the officers and ran away. With help from a ca nine, officers eventually apprehended Johnson in the woods nearby. Johnson was charged with, and pleaded guilty t o, being a felon in posse ssion of a firearm. At Johnson’s sentencing hearing, on July 12, 2016, the district court considered whether three of Johnson’s prior convictions qualified as crimes of violence under the Guidelines. Those convictions were: (1) a 2003 conviction fo r armed robbery; (2) a 2010 conviction for assaulting/resisting/obstructing an officer causing injury; and (3) a 2010 conviction for fleeing and eluding. The timing of Johnson’s sentencing was crucia l. Johnson’s sentencing, on July 12, 2016, came before the U.S. Sentencing Commission’s August 1, 2016, deletion of the Guidelines’ residual clause in § 4B1.2(a)(2). But it also occurred while United States v. Pawlak , 822 F.3d 902 (6th Cir. 2016), which invalida ted the residual clause in the Sixth Circuit, remained good law. The district court thus sent enced Johnson under the presumpti on that the residual clause could not be a basis for finding a ny of Johnson’s prior convictions to be crimes of violence. The district court determined that only one of Johnson’s convictions—the 2003 Michigan armed robbery conviction—qualified as a crime of violence, and only under the elements clause of the Guidelines in § 4B1.2(a)(1). Because of its fi nding that Johnson had one prior crime of violence conviction, the district court ratcheted up Johns on’s base offense level. Even with that enhancement, however, the district court felt that the resultant Guidelines range of 57 to 71Case No. 16-2033 United States v. Mark Samuel Johnson

- 3 - months was inadequate and va ried upward to the range re commended in the PSR—84 to 105 months. After lowering that range for Johnson’ s substantial assistance under U.S.S.G. § 5K1.1, the court imposed a 63 month sentence. Johnson appealed.
II Two decisions—one from the Supreme Court, and another from this court—guide us to the correct result in this appeal. The Supreme Court case is Beckles v. United States , 137 S. Ct. 886 (2017). Johnson was sentenced on July 12, 2016, when United States v. Pawlak , 822 F.3d 902 (6th Cir. 2016), remained the prevailing law in this Circuit. In Pawlak , we held that the Guidelines’ residual clause was unconstitutionally vague, meaning J ohnson’s prior convictions could not qualify as crimes of violence under the Guid elines’ residual clause. 822 F .3d at 903. But while Johnson’s appeal was pending, Beckles abrogated Pawlak , holding that the Guidelines were not subject to vagueness challenges. 137 S. Ct . at 890. The government argu es that, even if Johnson’s Michigan armed robbery conviction is not a crime of violence unde r the elements or enumerated offense clauses of the Guidelines, it is under the Beckles -revived residual clause. That is because Michigan armed robbery categorically fits within the residual clause, which renders any crime that “presents a serious potential risk of physical injury to a nother” a crime of violence. U.S.S.G. § 4B1.2(a)(2). That brings us to the critical Sixth Circuit case: United States v. Tibbs , 685 F. App’x 456 (6th Cir. 2017). 1 In Tibbs , we held that a Michigan armed robbery conviction under M.C.L.

1 Although Tibbs is unpublished, for the reasons explained herein, we find it persuasive and adopt its reasoning. Cf. Combs v. Int’l Ins. Co. , 354 F.3d 568, 593 (6th Cir. 2004) (following an unpublished opinion because “its reasoning is instructive”). Anothe r panel of this court recently relied on Tibbs in concluding that Michigan armed robbery is a residual clause crime of violence. United States v. Goodrich , No. 16-1795, 2017 WL 4350896, at *3 (6th Cir. Oct. 2, 2017) (“This Court has already determined that armed robbery under [M.C.L. § 750.529] qualifies as a crime of violence under the residual clause of the Guidelines.”)Case No. 16-2033 United States v. Mark Samuel Johnson

- 4 - § 750.529—the same statute under which Johnson was convicted in 2003—was a crime of violence under the Guidelines’ residual clause. Id. at 461. The Tibbs court thus found that it “need not parse the Michigan armed robbery stat ute to determine whether it satisfies the forceas-an-element clause” (in § 4B1.2(a)(1)) and uphe ld the defendant’s sentence only on the basis of the residual clause. Id. If Beckles revives the residual clause for the purpose of Johnson’s sentencing, and if Tibbs means that Johnson’s Michigan arme d robbery conviction is a residual clause crime of violence, then the conclusion seem s clear: the district court’s determination that Johnson committed at least one prior crime of violence should be affirmed. Not so fast, Johnson says. While Johnson does not dispute that Beckles allows us to consider whether his prior convictions are cr imes of violence under the Guidelines’ residual clause, 2 he argues Tibbs erred in concluding that a conviction for Michig an armed robbery under M.C.L. § 750.529 so qualifies. Why was Tibbs incorrect, according to Johnson? Because Tibbs imprudently relied on another wrongly decided case of ours, United States v. Payne , 163 F.3d 371 (6th Cir. 1998). In other words, to reach his desired result in this case, Johnson asks us to essentially disregard (if not overrule) two prior d ecisions of this court. This argument fails.

2 It wouldn’t have done Johnson any good to argue otherwise. Several panels of this court, beyond Tibbs , have also held that defendants sentenced while Pawlak was good law but whose appeals are decided after Beckles can have their crime-of-violence designations affirmed based on the residual clause. A unanimous panel recently found it unnecessary to “address whether [the defendant’s] convictions meet either th e elements or enumerated clauses if they still qualify as violent crimes under the residual clause in pl ace at the time of his sentencing and resentencing.” Goodrich , 2017 WL 4350896 at *2. That was true even though the Sentencing Commission has since deleted the residual cl ause from the Guidelines. Id. (“[W]e are bound to cons ider Goodrich’s earlier convictions on the basis of the revived (though no longer extant, having been removed by the Sentencing Commission) residual clause.”). Another panel said the same in a published opinion in United States v. Patterson

. 853 F.3d 298, 305 (6th Cir. 2017) (affirming sentence under the residual clause, because post- Beckles , the residual clause “was still part of the Guidelines at the time of Patterson’s sentencing.”). The beat goes on—post- Beckles , every decision issued by the Sixth Circuit involving this question has concluded that the residual clause can provide an alternative basis for affirmance. See United States v. Herring , 683 F. App’x 424, 425 n.1 (6th Cir. 2017) (holding that the residual clause would apply on direct appeal even if the defendant was originally sentenced when Pawlak was still good law); United States v. Jackson , 2017 WL 3393946 at *3 (6th Cir. Aug. 8, 2017) (holding that “it is immaterial whether Jackson’s prior convictions would not be considered crimes of violence under the use of force clause, as long as they would still qualify under the residual clause”).Case No. 16-2033 United States v. Mark Samuel Johnson

- 5 - Johnson’s argument really starts with Payne . In Payne , we held that “larceny from the person” qualified as a residual clause crime of violence because it “is a crime that creates a substantial risk of physical harm to another.” 163 F.3d at 375. A conviction required proof that property was “taken from the possession of the vi ctim or [] taken from within the immediate presence or area of control of the victim.” Id. Employing the categorical approach, “[w]e [could] think of no situation in which larceny from the person could occur without presenting a serious potential risk of physical injury.” Id. Tibbs relied on Payne . Like the larceny-from-the -person offense at issue in Payne , Michigan armed robbery has “as an element the taking of property from the victim’s person or presence.” Tibbs , 685 F. App’x at 461. If that elemen t was enough to render larceny from the person a residual clause cr ime of violence, we reasoned, then su rely it sufficed to do the same for armed robbery, which requires the additional pres ence (or perception) of a weapon, “which only increases the risk of violence.” Id. Johnson argues that Payne got it wrong, and by following Payne , so did Tibbs. Payne ’s mistake, Johnson says, was incorrectly frami ng the inquiry under the so-called categorical approach, which we use to determine whether a conviction qualifies as a crime of violence. “Under this approach, the facts and circumstan ces underlying the defendant's felony conviction are generally of no consequence, and a court do es no more than examine the definition of the crime provided by the state legislature.” United States v. Herrera , 375 F.3d 399, 403 (6th Cir. 2004). “[A] state offense is a categorical ma tch with a generic federal offense only if a conviction of the state offense ‘n ecessarily involved . . . facts e quating to [the] generic [federal offense].’” Moncrieffe v. Holder , 569 U.S. 184, 190 (2013) (quoting Shepard v. United States, 544 U.S. 13, 24 (2005)) (interna l quotation marks omitted).Case No. 16-2033 United States v. Mark Samuel Johnson

- 6 - But rather than looking at the “least of the acts criminalized” by Michigan’s larcenyfrom-the-person law and determining “whether ev en those acts are encompassed by the generic federal offense,” as the categorical approach requires, Moncrieffe , 569 U.S. at 191, Johnson contends Payne reached its conclusion by looking at the most culpable acts that larceny from the person could punish. Johnson’s best evidence of this is the Payne court’s statement that “although larceny from the person t ypically involves no threat of violence, the risk of ensuing struggle is omnipresent.” 163 F.3d at 375 (i nternal citation and quotation marks omitted). Because the court admitted that the crime often does not i nvolve a direct threat of violence, Johnson argues, it should not have been considered (as a categorical matter) a crime of violence under the residual clause. Johnson’s argument requires us to stop reading after the dependent “although” clause. Good grammar and common sense counsel otherwise. The key part of the sc rutinized sentence is the latter half—the court’s conc lusion that “the risk of ensuing struggle is omnipresent.” Id. The residual clause says that any crim e that presents the “serious poten tial risk of physical injury to another” is a crime of violence. And the Payne panel concluded that larceny from the person always presents that risk . Subsequent decisions explaining Payne have echoed that reasoning. See, e.g. , United States v. Taylor , 696 F.3d 628, 633 (6th Cir. 2012) (“But simply because force or violence is not used to eff ect the theft does not mean the perpetrator’s c onduct precludes a potential for violent confrontation.”). What’s more, Johnson’s argument that Payne wrongly focused on the most culpable acts punished is in tension wi th the court’s statement that it could “think of no situation” in which the offense c ould be committed without risking physi cal injury to another. 163 F.3d at 375. Johnson’s reading of Payne is unpersuasive.Case No. 16-2033 United States v. Mark Samuel Johnson

- 7 - So, too, is Johnson’s argument against Tibbs , which is premised on his criticism of Payne

. We therefore decline Johnson’s invitation to ignore Tibbs and instead find our decision today informed by it. As in Tibbs , even if Johnson could convince a majority of this panel that Michigan armed robbery is not a crime of viol ence under the elements or enumerated offense clauses of the Guidelines, his victory would be a hollow one: the residual clause still shields his sentence from reversal.
III Finding no error in the district court’s conc lusion that Johnson’s Mi chigan armed robbery conviction qualifies as a crime of violence, we AFFIRM

.