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United States v. Johnson

United States District Court, D. Oregon, Portland Division

September 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
Ernest Johnson, Jr. Defendant.

          RESENTENCING OPINION

          Robert E. Jones, U.S. District Court Judge.

         BACKGROUND

         In 1998, a jury found defendant Ernest Johnson, Jr. guilty of three counts: armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d) (Count 1); possession of a firearm in connection with that robbery 18 U.S.C. § 924(c) (Count 2); and, being a felon in possession of a firearm in violation of 18 U.S.C. § 924(g) (Count 3). (#76) Following the trial, Probation prepared a presentence report (PSR) which calculated defendant's offense level at 34 with criminal history category VI, yielding a guideline range of 262 -327 months. Probation determined that on Count 1, defendant qualified as a Career Offender pursuant to United States Sentencing Guidelines (U.S.S.G) §§ 4B1.1 and 4B1.2 and on Count 3, for the enhanced penalties under the Armed Career Criminal Act (ACCA).[1]

         When Probation prepared the PSR, defendant's criminal history included a number of prior convictions

• 1969 Oregon Robbery by Force and Violence, Unarmed
• 1970 Oregon Assault and Robbery While Armed
• 1982 Oregon Burglary II
• 1984 California for Robbery of an Inhabited Dwelling
• 1993 Oregon for Robbery I, Burglary I, Kidnapping II, and Assault II

         I adopted the Guideline calculations and sentenced defendant to 300 months in prison and five years of supervised release on Count 1, 60 months mandatory minimum consecutive sentence and five years of supervised release on Count 2, and 300 months in prison and five years of supervised release on Count 3 to be served concurrently with the sentence imposed on Count 1. Defendant received a total sentence of 360 months in prison and five years of supervised release (#92, 93).

         While defendant was serving his sentence, the United States Supreme Court issued a ruling invalidating the ACCA residual clause. Johnson v. United States, 135 S.Ct. 2551 (2015). Defendant filed a motion to vacate or correct his sentence pursuant to 28 U.S.C. § 2255, based on Johnson and subsequent case law. (# 170) The parties filed a stipulation in which they agreed to litigate whether defendant is still a Career Offender, whether he still qualifies for the enhanced penalties under the ACCA, and whether he should still receive a sentence of 360 months in prison, followed by five years of supervised release. (#184)

         At my direction, Probation prepared a new PSR which concluded that defendant is no longer a Career Offender and is no longer eligible for the enhanced penalties under the ACCA. Probation's new calculations result in a total offense level of 24 with criminal history category VI for a guideline range of 110-125 months (with a maximum of 120 months on Count3), plus a consecutive sentence of 60 months on Count 2. The government disagrees with Probation's conclusions that defendant no long qualifies as a Career Offender and is ineligible for the ACCA sentencing enhancement. At the time of the resentencing hearing, defendant had served more than 228 months in prison.

         STANDARD OF REVIEW

         The government has the burden to prove that a prior conviction qualifies as a career offender predicate. United States ...


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