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Johnson v. United States

United States Court of Appeals, Second Circuit

February 25, 2015

LEONARD C. JOHNSON, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, Respondent-Appellee

Argued January 29, 2015

Leonard C. Johnson appeals from the order of the United States District Court for the Southern District of New York (Engelmayer, J.), denying his petition for relief under 28 U.S.C. § 2255. Johnson argues that his conviction on a firearms offense under 18 U.S.C. § 924(c) must be vacated because his conviction of the predicate crime (bank robbery) was vacated on multiplicity grounds. Addressing an issue left open by United States v. Zhou, 428 F.3d 361 (2d Cir. 2005), we hold that a conviction under 18 U.S.C. § 924(c) requires legally sufficient proof that the predicate crime was committed, but does not require that the defendant be convicted of it.

ROBIN C. SMITH, Law Office of Robin C. Smith, San Rafael, California, for Appellant.

DANIEL S. NOBLE (Brian A. Jacobs, on the brief), for Preet Bharara, United States Attorney for the Southern District of New York, New York, New York, for Appellee.

Before: JACOBS, WESLEY, and CARNEY, Circuit Judges.

OPINION

Page 126

DENNIS JACOBS, Circuit Judge

Following a jury trial in the United States District Court for the Southern District of New York (Rakoff, J.), Leonard C. Johnson was convicted of (1) bank robbery, (2) armed bank robbery, and (3) using and carrying a firearm during and in connection with a crime of violence--the bank robbery. In a prior appeal, we vacated the bank robbery conviction on the ground of multiplicity with the conviction for armed bank robbery in the same incident. The current 28 U.S.C. § 2255 petition argues that the firearms conviction must be now vacated because there is no subsisting conviction on the predicate crime of violence. The district court (Engelmayer, J.)[1] denied the petition, construing our precedents--in particular, United States v. Zhou, 428 F.3d 361 (2d Cir. 2005)--to suggest that a defendant can be convicted under 18 U.S.C. § 924(c) without being convicted of the predicate crime in connection with which a firearm was used.

We hold that a conviction under 18 U.S.C. § 924(c) requires legally sufficient proof that the predicate crime of violence (or drug trafficking) was committed, but does not require a conviction for that predicate crime.

Affirmed.

I

In August 1998, Johnson entered a bank, pointed a gun at the cashier, and demanded money. In connection with that single incident, he was charged with (1) bank robbery, in violation of 18 U.S.C. § 2113(a) (" Count One" ); (2) armed bank robbery, in violation of 18 U.S.C. § 2113(d) (" Count Two" ); and (3) using and carrying a firearm during and in connection with a crime of violence in violation of 18 U.S.C. § 924(c) (" Count Three" ). The indictment charged that Johnson committed the firearms offense in Count Three during and in connection with the " bank robbery charged in Count One."

Page 127

A jury found Johnson guilty on all three counts. Johnson was sentenced to 240 months of imprisonment on Count One and 274 months on Count Two, to run concurrently, and to 300 months on Count Three, to run consecutively. On the direct appeal, Johnson challenged his convictions and sentence on a number of grounds, ...


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