UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-4679


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

JAMAA I. JOHNSON,

                     Defendant - Appellant.


Appeal from the United States District Court for the Southern District of West Virginia, at
Charleston. Thomas E. Johnston, Chief District Judge. (2:13-cr-00091-7)


Submitted: May 18, 2020                                           Decided: July 14, 2020


Before MOTZ, KEENAN, and HARRIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Susan M. Robinson. THOMAS COMBS & SPANN, PLLC, Charleston, West Virginia, for
Appellant. Michael B. Stuart, United States Attorney, Kristin F. Scott, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted Jamaa Johnson of conspiracy to commit Hobbs Act robbery,

firearms conspiracy, and witness tampering. The district court sentenced Johnson to 235

months’ imprisonment and three years of supervised release. Johnson appeals, contending

that the district court improperly instructed the jury, abused its discretion in denying his

motions for a mistrial, and committed a panoply of errors at sentencing. For the reasons

that follow, we affirm.



                                             I.

       This case arises from a conspiracy to commit a series of robberies in Virginia and

West Virginia. The Government alleged that Johnson was a member of this conspiracy

and that he participated in the robberies of Leair Lipscomb (the “Lipscomb robbery”) and

Cabell Franklin (the “Franklin robbery”).         In its Fifth Superseding Indictment, the

Government charged Johnson with two counts of Hobbs Act robbery and one count of

conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951, two counts of

use of firearms in a crime of violence and one count of conspiracy to use firearms in a

crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A), (o), one count of being a felon

in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and one count of witness

tampering, in violation of 18 U.S.C. § 1512(b)(1).

       At trial, three of Johnson’s alleged co-conspirators — Robert Barcliff, Keith Glenn,

and Brandon Davis — testified against Johnson, as did victim Cabell Franklin and

Johnson’s former girlfriend, Megan Smith. Barcliff testified that he and a group of friends


                                             2
from Wytheville, Virginia, including Johnson, devised a plan to rob drug dealers. Johnson

suggested robbing Lipscomb, a drug dealer who was known to possess pills, cocaine, and

marijuana. Barcliff testified that he, Johnson, and Glenn drove to Lipscomb’s home to

commit the robbery.     Barcliff and Glenn entered the home, restrained Lipscomb at

gunpoint, and took marijuana, cash, and apparel. According to Barcliff, Johnson “drove

the car and . . . helped us load the items.” Both Barcliff and Glenn testified that Barcliff

carried a firearm and showed it to Johnson in the car.

       Barcliff and Davis also implicated Johnson in the Franklin robbery. Barcliff

testified that Johnson agreed to drive the group to Franklin’s home; once there, Johnson

was to help secure Franklin by holding him at gunpoint. But the robbery did not go

according to plan. When Franklin answered the door, Davis began to wrestle him and

struck him in the head with a firearm; Barcliff also stabbed him with a knife. Johnson and

Barcliff proceeded to the basement, where they found Franklin’s father. Johnson held

Franklin’s father at gunpoint and ordered him not to move. Barcliff then rejoined Davis

upstairs and the two decided to leave the home. Shortly thereafter, according to Barcliff

and Davis, Johnson ran out of the home saying, “I shot him.” Franklin had been shot in

the left leg, although he testified that he could not identify his assailant, who was wearing

a bandana. Smith, Johnson’s girlfriend at the time of the robbery, testified that Johnson

admitted to shooting Franklin so that he could escape from the home.

       At the conclusion of the evidence, the district court explained to the jury that a

“crime of violence,” for purposes of § 924(c), is a felony that “(A) has as an element the

use, attempted use, or threatened use of physical force against the person or property of


                                             3
another, or (B) that by its nature, involves a substantial risk that physical force against the

person or property of another may be used in the course of committing the offense.” The

district court also instructed the jury that Hobbs Act conspiracy constitutes a crime of

violence.

       After two days of deliberations, the jury told the court that it had reached a

unanimous verdict. The jury found Johnson guilty of Hobbs Act conspiracy, firearms

conspiracy, and witness tampering. The jury acquitted Johnson of being a felon in

possession of a firearm and two counts of Hobbs Act robbery. But with respect to the two

counts of use of a firearm in a crime of violence (in connection with the Lipscomb and

Franklin robberies), the district court determined that the jury’s verdict form was

incomplete. The Government had alleged that Johnson violated § 924(c) on two theories

— first, that Johnson was liable for his co-conspirators’ use of firearms under Pinkerton v.

United States, 

(1946); second, that Johnson had himself used a firearm. The

jury had found Johnson guilty on the first theory but had failed to answer whether Johnson

was guilty on the second. 1

       Johnson moved for a mistrial. The district court denied the motion and directed the

jury to continue deliberating with respect to the unanswered questions. Later that day, the

jury submitted a note to the court asking whether it could change its verdict as to the

§ 924(c) counts. The district court responded that the jury could do so. Johnson again

moved for a mistrial, which the district court denied. Shortly thereafter, the jury submitted


       1
       The jury also failed to answer certain questions related to the counts against
Johnson’s co-defendant that are not relevant to this appeal.

                                              4
its final verdict, this time acquitting Johnson of the § 924(c) counts on both of the

Government’s theories.

       Although the jury convicted Johnson of Hobbs Act conspiracy and firearms

conspiracy, the verdict form did not specify which offenses Johnson had conspired to

commit (the “object offenses”). For purposes of sentencing, the district court found that

Johnson had conspired to commit the Lipscomb and Franklin robberies. The court

calculated an offense level of 35 and a criminal history category of IV and imposed, among

other adjustments, a seven-level enhancement for discharge of a firearm during the

Franklin robbery, U.S.S.G. § 2B3.1(b)(2)(A), and a four-level enhancement for serious

bodily injury to Franklin, § 2B3.1(b)(3)(B). The court sentenced Johnson to 235 months’

imprisonment — the bottom of the Guidelines range. The court also sentenced Johnson to

three years of supervised release and imposed a $300 special assessment.

       Johnson timely appealed.



                                               II.

       Johnson first contends that the district court erred in instructing the jury that the

term “crime of violence,” for purposes of § 924(c), includes felonies that involve “a

substantial risk that physical force . . . may be used in the course of committing the

offense.” JA 437 (quoting § 924(c)(3)(B) (the “residual clause”)). Johnson also contends

that the court erred in instructing the jury that Hobbs Act conspiracy constitutes a crime of

violence. Therefore, Johnson claims, his conviction for firearms conspiracy — that is,

conspiracy to violate § 924(c) — is invalid.


                                               5
       Because Johnson did not object to these jury instructions, we review them for plain

error. See Fed. R. Crim. P. 52(b); United States v. Olano, 

, 731 (1993). To

obtain reversal on plain error review, a defendant must show that “(1) an error was made;

(2) the error is plain; (3) the error affects substantial rights; and (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” United States

v. Ramirez-Castillo, 

, 212 (4th Cir. 2014).

       Johnson has met his burden to show that the district court committed an “error” that

is “plain.” An error is plain if, “at the time of appellate consideration, the settled law of

the Supreme Court or this circuit establishes that an error has occurred.” United States v.

Walker, 

, 378 (4th Cir. 2019) (quotation marks omitted). In United States v.

Davis, 

(2019), the Supreme Court struck down the residual clause as

unconstitutionally vague.

And in United States v. Simms, 

(4th

Cir. 2019) (en banc), we held that conspiracy to commit Hobbs Act robbery does not

constitute a crime of violence.

       Johnson has not, however, established that this error “affects [his] substantial

rights,” 

, because the jury could have based the firearms

conspiracy conviction on Hobbs Act robbery, a valid § 924(c) predicate. See United States

v. Mathis, 

, 266 (4th Cir. 2019). This is fatal to Johnson’s claim, for a

defendant challenging a jury instruction on plain error review “must demonstrate that the

erroneous instruction . . . resulted in his conviction, not merely that it was impossible to

tell under which theory the jury convicted.” United States v. Hare, 

, 105 (4th

Cir. 2016) (alterations omitted). Put another way, it is not enough for Johnson to show that


                                              6
his firearms conspiracy conviction could have been based on an invalid predicate, such as

Hobbs Act conspiracy. Rather, on plain error review, it is his burden to show that his

conviction was not based on a valid predicate, such as Hobbs Act robbery.

       Johnson attempts to make this showing, asserting that his firearms conspiracy

conviction could not have been based on Hobbs Act robbery because he was acquitted of

the substantive offense of Hobbs Act robbery. This argument fails. Firearms conspiracy

“requires proof of agreement,” not “proof the substantive crime was actually committed.”

See United States v. Robinson, 

, 958 (4th Cir. 2010). See generally United

States v. Mills, 

, 484 (4th Cir. 1993) (noting that “the focus of a conspiracy

charge is the agreement to violate the law”). In light of Barcliff and Davis’s testimony

regarding Johnson’s agreement to participate in the Franklin robbery, the jury could have

found that Johnson had conspired to use a firearm in connection with a Hobbs Act robbery,

despite the fact that it acquitted Johnson of the substantive offense. 2




       2
         Johnson also argues that the jury could not have based the firearms conspiracy
conviction on Hobbs Act robbery because the jury acquitted him of the § 924(c) counts
associated with the Lipscomb and Franklin robberies. Johnson has waived this argument
by failing to raise it in his opening brief. See United States v. Palacios, 

, 244
n.5 (4th Cir. 2012). Regardless, the argument is meritless. Firearms conspiracy requires
proof of an agreement to violate § 924(c), not proof that a substantive violation of § 924(c)
occurred.

                                               7
                                              III.

       Johnson claims that the district court erred in denying his motions for a mistrial after

the jury returned its first verdict. We review for abuse of discretion. See United States v.

Wallace, 

, 330 (4th Cir. 2008).

       Once it became clear that the jury had failed to answer certain questions on the

verdict form, the district court directed the jury to continue its deliberations with respect to

the unanswered questions. Johnson argues that had the jury been permitted to continue

deliberations on the indictment as a whole — as opposed to only on the unanswered

questions — it might have realized that conviction on the conspiracy counts was

inconsistent with acquittal on the Hobbs Act robbery and § 924(c) counts. In light of this

inconsistency, Johnson posits, the jury might have acquitted Johnson of the conspiracy

counts. Cf. United States v. Moore, 

, 913 (7th Cir. 2014).

       This argument is unavailing, for there is no inconsistency in the jury’s verdict. As

explained above, a defendant may be convicted of Hobbs Act conspiracy without having

committed the substantive offense of Hobbs Act robbery. See 

–34.

Similarly, a defendant may be convicted of firearms conspiracy even if the defendant did

not violate § 924(c). See 

.



                                              IV.

       Next, Johnson claims that his sentence was procedurally and substantively

unreasonable. We review a defendant’s sentence “under a deferential abuse-of-discretion

standard.” United States v. Brewer, 

, 372 (4th Cir. 2008). We first determine


                                               8
whether the district court committed any procedural error; we then consider whether the

sentence is substantively reasonable.

a sentence is

unreasonable, we will review the district court’s legal conclusions de novo and its factual

findings for clear error.” United States v. Hampton, 

, 287 (4th Cir. 2006).

                                             A.

      First, Johnson contends that the district court erred in determining the base offense

level for his Hobbs Act conspiracy conviction. The base offense level for Hobbs Act

conspiracy is “[t]he base offense level from the guideline for the substantive offense” —

that is, Hobbs Act robbery — “plus any adjustments from such guideline for any intended

offense conduct that can be established with reasonable certainty.” U.S.S.G. § 2X1.1(a)

(2016). Section 1B1.2(d) of the Guidelines provides that a conviction for a multi-object

conspiracy “shall be treated as if the defendant had been convicted on a separate count of

conspiracy for each offense that the defendant conspired to commit.” U.S.S.G. § 1B1.2(d).

The application notes further provide that in applying § 1B1.2(d), a district court may

determine the object offenses if such offenses are not specified in the verdict or plea.

U.S.S.G. § 1B1.2(d) cmt. n.4.

      Because the object offenses were not specified in the jury’s verdict, the district court

found, by proof beyond a reasonable doubt, that Johnson had conspired to commit the

Lipscomb and Franklin robberies and calculated the Guidelines range accordingly. In so

doing, Johnson asserts, the district court “gave no credit to the jury acquittals,” and

punished him as if he had been convicted on all counts, thereby violating his Sixth




                                             9
Amendment right to a jury trial and Fifth Amendment right to due process. Opening Br.

at 35.

         This argument elides the same key distinction discussed above: the jury acquitted

Johnson of the substantive Hobbs Act robbery, § 924(c), and § 922(g) counts, but not of

the conspiracy counts. Therefore, the district court’s finding that Johnson had conspired

to commit the Lipscomb and Franklin robberies — and its calculation of the Guidelines

range in accordance with that finding — is not inconsistent with the jury’s acquittals on

the substantive counts. See 

–34 (explaining that Hobbs Act

conspiracy does not require the commission of Hobbs Act robbery); United States v.

Jackson, 

, 1285 (9th Cir. 1999).3

                                            B.

         Johnson next argues that the district court erred in imposing sentencing

enhancements for discharge of a firearm, U.S.S.G. § 2B3.1(b)(2)(A), and serious bodily

injury, § 2B3.1(b)(3)(B), both in connection with the Franklin robbery. Johnson claims

that these enhancements are based on acquitted conduct, noting that the jury acquitted him

of the § 924(c) and § 922(g) counts. According to Johnson, when a district court bases a

sentencing enhancement on acquitted conduct, and when such an enhancement

dramatically increases the defendant’s offense level, the court must employ a clear and



         3
        To be sure, the offense level for a conspiracy offense is based on the associated
substantive offenses. See U.S.S.G. § 2B1.1(d), 2X1.1(a). But that does not mean that
Johnson was punished for Hobbs Act robbery; it means only that the district court looked
to those substantive offenses in determining the proper offense level for Hobbs Act
conspiracy.

                                            10
convincing evidence standard in finding the facts upon which the enhancement is based;

the district court’s application of a preponderance standard was therefore error.

         Because Johnson failed to raise this argument before the district court, we review

for plain error. See 

. Even assuming that the district court based

the enhancements on acquitted conduct and that its use of a preponderance standard was

error, Johnson has not met his burden to demonstrate that this asserted error was plain. See

(stating that an error is plain if, “at the time of appellate

consideration, the settled law of the Supreme Court or this circuit establishes that an error

has occurred” (quotation marks omitted)). In United States v. Watts, 

(1997),

the Supreme Court acknowledged, but did not resolve, “a divergence of opinion among the

Circuits as to whether, in extreme circumstances, relevant conduct that would dramatically

increase the sentence must be based on clear and convincing evidence.”

We

too have expressly declined to resolve this question. See United States v. Perry, 

, 259 (4th Cir. 2009). Consequently, we can hardly conclude that the asserted error was

plain.

                                               C.

         Johnson contends that his sentence is procedurally unreasonable because the district

court failed to explain adequately its object offenses finding. In making a factual finding

at sentencing, a district court must provide “a sufficient explanation of its rationale . . . that

would enable us to review such finding under the clearly erroneous standard.” United

States v. Wilkinson, 

, 269 (4th Cir. 2010).




                                               11
         In a written order, the district court found that Johnson had conspired to commit the

Lipscomb and Franklin robberies, noting its familiarity “with the facts of this case,

including those related to the conspiracy charged in Count One, as evidenced by the Court’s

memorandum opinion issued on June 9, 2017.” The memorandum opinion referred to in

the court’s order recounts in detail the sufficiency of the trial evidence related to the

conspiracy to commit the Lipscomb and Franklin robberies, including evidence of

Johnson’s express agreement to participate in those particular robberies. The district

court’s explanation of its rationale is sufficiently detailed to enable our review.

                                              D.

         Finally, Johnson contends that his sentence is substantively unreasonable because it

is “highly disproportionate to that of others convicted in the scheme.” Opening Br. at 42.

A sentencing court must consider “the need to avoid unwarranted sentence disparities

among defendants with similar records who have been found guilty of similar conduct.”

18 U.S.C. § 3553(a)(6). In assessing the reasonableness of Johnson’s sentence, we are

mindful that because the sentence is within the Guidelines range, it is deemed

presumptively reasonable. See United States v. Louthian, 

, 306 (4th Cir.

2014).

         The district court concluded that there was no unwarranted disparity between

Johnson’s sentence and the sentences of his co-conspirators. The court noted that the

length of Johnson’s sentence was partly attributable to the imposition of the

§ 2B3.1(b)(2)(A) enhancement for discharge of a firearm. The court also cited Johnson’s

criminal history and the fact that some of Johnson’s co-conspirators had received


                                              12
reductions for acceptance of responsibility. In light of these considerations, we cannot

conclude that Johnson’s sentence is substantively unreasonable.

      We have considered Johnson’s remaining contentions and conclude that they are

without merit.



                                            V.

      For the foregoing reasons, the judgment of the district court is

                                                                           AFFIRMED.




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