           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           July 11, 2008

                                       No. 06-41354                   Charles R. Fulbruge III
                                                                              Clerk

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.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                       No. 06-41354

                                              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 “violent felonies” 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

       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 application of the
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.

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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 United States 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 United States 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

       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[.]”

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. . . 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

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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 violent felony 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.




       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.


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