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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 16-60574
                                                                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                          January 23, 2018
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

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
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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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                                  No. 16-60574
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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                                  No. 16-60574
      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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                                   No. 16-60574
                                         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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                                      No. 16-60574
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


       1Prior 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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                                  No. 16-60574
      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 sawed-
      off 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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                                      No. 16-60574
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 lesser-
included 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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                                   No. 16-60574
         (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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                                 No. 16-60574
                                     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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