               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 17a0651n.06

                                       Case No. 16-2033

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                  FILED
                                                                            Nov 22, 2017
UNITED STATES OF AMERICA,                             )                 DEBORAH S. HUNT, Clerk
                                                      )
       Plaintiff-Appellee,                            )
                                                      )        ON APPEAL FROM THE
v.                                                    )        UNITED STATES DISTRICT
                                                      )        COURT FOR THE WESTERN
MARK SAMUEL JOHNSON,                                  )        DISTRICT OF MICHIGAN
                                                      )
       Defendant-Appellant.                           )

                                                                                   OPINION


BEFORE: COLE, Chief Judge; McKEAGUE and STRANCH, Circuit Judges.

       McKEAGUE, Circuit Judge.            Mark Johnson pleaded guilty 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 clause”), 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 crime of violence under the Guidelines’ elements

clause, it does so qualify under the 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

                                                I

       In September 2015, Kalamazoo, Michigan police 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 canine, officers eventually apprehended Johnson in

the woods nearby.

       Johnson was charged with, and pleaded guilty to, being a felon in possession 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 for 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 crucial. 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 invalidated the residual clause in the Sixth Circuit, remained good

law.

       The district court thus sentenced Johnson under the presumption that the residual clause

could not be a basis for finding any 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 finding that Johnson had one prior crime of violence

conviction, the district court ratcheted up Johnson’s base offense level.       Even with that

enhancement, however, the district court felt that the resultant Guidelines range of 57 to 71


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United States v. Mark Samuel Johnson

months was inadequate and varied upward to the range recommended 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 Johnson’s prior convictions could not qualify as

crimes of violence under the Guidelines’ 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 argues that, even if Johnson’s

Michigan armed robbery conviction is not a crime of violence under 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 another” 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”). Another 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.”)

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United States v. Mark Samuel Johnson

§ 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 statute to determine whether it satisfies the force-

as-an-element clause” (in § 4B1.2(a)(1)) and upheld 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 armed robbery conviction is a residual

clause crime of violence, then the conclusion seems 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 crimes of violence under the Guidelines’ residual

clause,2 he argues Tibbs erred in concluding that a conviction for Michigan 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 decisions 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 the elements or enumerated
clauses if they still qualify as violent crimes under the residual clause in place 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 clause from the Guidelines. Id. (“[W]e are bound to consider 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”).


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Case No. 16-2033
United States v. Mark Samuel Johnson

         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 victim 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 element was enough to render larceny from the

person a residual clause crime of violence, we reasoned, then surely it sufficed to do the same for

armed robbery, which requires the additional presence (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 framing 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 circumstances underlying the defendant's felony conviction

are generally of no consequence, and a court does 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 match with a generic federal offense only if a

conviction of the state offense ‘necessarily involved . . . facts equating 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)) (internal quotation marks omitted).


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Case No. 16-2033
United States v. Mark Samuel Johnson

       But rather than looking at the “least of the acts criminalized” by Michigan’s larceny-

from-the-person law and determining “whether even 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 typically involves no threat of violence, the risk of ensuing

struggle is omnipresent.” 163 F.3d at 375 (internal citation and quotation marks omitted).

Because the court admitted that the crime often does not involve 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 scrutinized sentence is

the latter half—the court’s conclusion that “the risk of ensuing struggle is omnipresent.” Id. The

residual clause says that any crime that presents the “serious potential 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 effect the theft does not mean the perpetrator’s conduct 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 with the court’s statement that it could

“think of no situation” in which the offense could be committed without risking physical injury

to another. 163 F.3d at 375. Johnson’s reading of Payne is unpersuasive.




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Case No. 16-2033
United States v. Mark Samuel Johnson

       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 violence 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 conclusion that Johnson’s Michigan armed robbery

conviction qualifies as a crime of violence, we AFFIRM.




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