* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-41354

UNITED STATES OF AMERICA

Plaintiff–Appellee

v.

JAMES TERRELL JOHNSON, also known as James Johnson, also known as

James Terral Johnson, also known as James T Johnson, also known as Louis

Burris, also known as Orlando Hicks

Defendant–Appellant

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 4:05-CR-237-ALL

Before REAVLEY, BENAVIDES, and OWEN, Circuit Judges.

PER CURIAM:*

Defendant-Appellant James Terrell Johnson (“Johnson”) appeals his

enhanced sentence, which the district court imposed based on a finding of three

prior violent felony convictions. For the following reasons, we VACATE and

REMAND for resentencing.

United States Court of Appeals

Fifth Circuit

F I L E D

July 11, 2008

Charles R. Fulbruge III

Clerk
No. 06-41354

1

If Johnson had not qualified as an armed career criminal under the ACCA, his

guideline range would have been 84 to 105 months imprisonment.

2 The government argues that Johnson abandoned his objection to the applicationofthe

ACCA at the sentencing hearing, and, therefore, the standard for review is plain error. See

United States v. Villegas, 404 F.3d 355, 358 (5th Cir. 2005). We disagree. Although Johnson’s

attorney made statements to the effect that he did not believe that Johnson had a valid

objection to the application of the ACCA, these statements occurred during the hearing on

Johnson’s motion to dismiss his counsel and not during the sentencing hearing. Johnson’s

objection to the application of the ACCA was lodged in writing, and the district court ruled on

this objection at sentencing. 

2

I.

On March 6, 2006, Johnson pleaded guilty to one count of being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1). With respect to his

sentencing, Johnson objected to being classified as an armed career criminal,

which requires three prior “violentfelonies”for sentence-enhancement purposes

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Johnson

asserted that his Arkansas convictions for battery in the second degree,

aggravated assault, and terroristic threatening did not constitute violent felonies

under the ACCA. The district court overruled this objection and, based on the

Presentence Investigation Report, sentenced Johnson to fifteen years

imprisonment–the minimum prescribed by § 924(e).1 Johnson now appeals,

arguing only that his prior conviction for terroristic threatening does not qualify

as a violent felony under the ACCA.

II.

The district court’s characterization of a prior offense is a question of

law that we review de novo.

2 United States v. Santiesteban-Hernandez, 469

F.3d 376, 378 (5th Cir. 2006). 

III.

A criminal defendant convicted of being a felon in possession of a firearm

who has “three previous convictions . . . for a violent felony . . . committed on

occasions different from one another” is subject to a minimum term of fifteen
No. 06-41354

3 The information against Johnson in case number CR-98-146 alleged that he,“with the

purpose of terrorizing Danyelle Lateshia Johnson, threatened to kill Danyelle Lateshia

Johnson.”

4 ARK. CODE ANN. § 5-13-301(a)(1)(A) provides in full: “With the purpose of terrorizing

another person, the person threatens to cause death or serious physical injury or substantial

property damage to another person[.]”

3

years imprisonment. § 924(e)(1). A violent felony is any crime punishable by

imprisonment for a term exceeding one year that:

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

physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or

otherwise involves conduct that presents a serious potential risk

of physical injury to another[.]

§ 924(e)(2)(B). 

Employing the categorical approach of UnitedStates v. Calderon-Pena, 383

F.3d 254 (5th Cir. 2004) (en banc), and “paring down” the statute of conviction

by looking at the information against Johnson,3 we find that Johnson was

convicted under ARK. CODE ANN. § 5-13-301(a)(1)(A) for the following offense:

“With the purpose of terrorizing another person, the person threatens to cause

death . . . to another person[.]”4 Given this “pared down” statute of conviction,

we conclude that Johnson’s conviction for terroristic threatening did not qualify

as a violent felony under § 924(e)(2)(B)(i) or (ii). 

A.

The government asks us to affirm the sentence imposed by the district

court pursuant to § 924(e)(2)(B)(i) because “his threat to kill the victim was a

threatened use of physical force against the person of another.” Our precedent,

however, precludes this conclusion. In UnitedStates v. Villegas-Hernandez,this

Court found that a person could cause bodily injury without the use of physical

force, and, therefore, the Texas assault statute at issue did not have as an

element the use of physical force. 468 F.3d 874, 879 (5th Cir. 2006) (“There is
No. 06-41354

4

. . . a difference between a defendant’s causation of injury and the defendant’s

use of force.”) (internal quotations omitted). Based on this precedent, this Court

recently determined that a conviction for making terroristic threats under

California law did not have as an element the threatened use of physical force.

United States v. De La Rosa-Hernandez, No. 06-41243, 2008 WL 302315, at *1-2

(5th Cir. Feb. 4, 2008) (“As in Villegas, a defendant could violate [California’s

Terroristic Threats law], for example, by threatening either to poison another or

to guide someone intentionally into dangerous traffic, neither of which involve

‘force’, as that term is defined by our court.”). There is no significant distinction

between the California statute at issue in De La Rosa-Hernandez and the

Arkansas statute at issue here.

B.

Although the district court indicated that Johnson’s offense was a violent

felony under § 924(e)(2)(B)(i), it also seemingly found that the offense qualified

as a violent felony under the “Otherwise Clause” of § 924(e)(2)(B)(ii)–that is,

Johnson’s conviction was for a felony that “otherwise involves conduct that

presents a serious potential risk of physical injury to another.” The district

court, however, provided no reasoning for this apparent conclusion.

Furthermore, on appeal, the government does not advance an argument

regarding the application of the Otherwise Clause to Johnson’s conviction.

Nevertheless, we review whether Johnson’s conviction qualifies as a violent

felony under the Otherwise Clause, and we conclude that it does not. 

In applying the Otherwise Clause, the Supreme Court in Begay v. United

States recently explained that § 924(e)(2)(B)(ii)’s “listed examples–burglary,

arson, extortion, or crimes involving the use of explosives–illustrate the kinds

of crimes that fall within the statute’s scope.” – U.S. –, 128 S. Ct. 1581, 1584-85

(2008). The presence of the enumerated offenses “indicates that the statute

covers only similar crimes, rather than every crime that presents a serious
No. 06-41354

5 Although the enumerated offense of extortion may also include a threat of bodily

harm, the threat is issued for the purpose of obtaining property, not for the purpose of

terrorizing another individual. Given that Congress’s intent with respect to § 924(e)(2)(B)(ii)

was to cover physically risky property crimes, this distinction precludes Johnson’s conviction

for terroristic threatening from qualifying as a violent felony under the Otherwise Clause.

5

potential risk of physical injury to another.” Id. at 1585 (internal quotations

omitted). Thus, the Court instructed that the Otherwise Clause covers only

“crimes that are roughly similar, in kind as well as in degree of risk posed, to the

examples themselves.” Id.

Johnson’s conviction for terroristic threatening is not similar in kind to

any of the enumerated offenses. The Supreme Court has indicated that §

924(e)(2)(B)(ii) was created to expand the definition of a violentfelony to include

physically risky crimes against property. See Begay, 128 S. Ct. at 1586. As the

Begay Court stated: “Congress sought to expand th[e] definition [of violent

felony] to include both crimes against the person (clause (i)) and certain

physically risky crimes against property (clause (ii)).” Id. Johnson’s conviction

for threatening to cause the death of another person, however, is not a property

crime but a crime against the person. As such, it is not similar in kind to the

enumerated offenses and, therefore, not a violent felony under the Otherwise

Clause.5

IV.

For the foregoing reasons, we VACATE the sentence imposed by the

district court and REMAND for resentencing.