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United States v. Burns-Johnson

United States Court of Appeals, Fourth Circuit

July 18, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
LAMAR BURNS-JOHNSON, Defendant-Appellant.

          Argued: December 7, 2016

         Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Frank D. Whitney, Chief District Judge. (3:15-cr-00195-FDW-DCK-1)

         Affirmed by published opinion. Judge Keenan wrote the opinion, in which Judge King and Judge Duncan joined.

         ARGUED:

          Ann Loraine Hester, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

          Amy Elizabeth Ray, OFFICE OF THE UNITED STATES ATTORNEY, Asheville, North Carolina, for Appellee.

         ON BRIEF:

          Ross Richardson, Executive Director, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for Appellant.

          Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

          Before KING, DUNCAN, and KEENAN, Circuit Judges.

          BARBARA MILANO KEENAN, Circuit Judge.

         In this appeal, we consider whether the North Carolina offense of robbery with a dangerous weapon, in violation of North Carolina General Statutes Section 14-87 (armed robbery, or statutory armed robbery), qualifies as a "violent felony" for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Relying on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II), in which the Supreme Court invalidated the ACCA's residual clause as being unconstitutionally vague, Lamar Burns-Johnson argues that his predicate North Carolina convictions for armed robbery no longer qualify as "violent felonies" because they are not enumerated crimes under the ACCA's definition of that term and do not meet the requirements of the definition's "force clause." See 18 U.S.C. § 924(e)(2)(B). Burns-Johnson therefore asserts that the district court erred in considering those convictions in imposing sentence on him.

         Upon our review, we conclude that the offense of armed robbery under North Carolina General Statutes Section 14-87 categorically qualifies as a violent felony under the "force clause" of the ACCA. Accordingly, we affirm the district court's judgment sentencing Burns-Johnson as an armed career criminal.

         I.

         In 2015, Burns-Johnson pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). In the presentence report, the probation officer recommended that Burns-Johnson be sentenced as an armed career criminal based on his prior armed robbery convictions. Burns-Johnson objected to the ACCA designation, arguing that armed robbery under North Carolina General Statutes Section 14-87 does not qualify as a violent felony under the ACCA. The district court overruled Burns-Johnson's objection and held that his prior convictions for statutory armed robbery ...


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