Effect of possession of sawed-off shotgun in earlier case is at issue.
When U.S. District Judge Richard Kyle ordered a white supremacist from Austin, Minn., to prison for 15 years for illegally possessing ammunition, he made it clear that he felt the sentence was too long but had no choice under the law.
“I impose the sentence reluctantly, because I think a sentence of half of that or two-thirds of that would be more than sufficient to qualify,” Kyle said during the 2012 sentencing.
Samuel James Johnson, now in a federal prison in Memphis, will get another hearing this fall. The U.S. Supreme Court announced this spring that it will review his case, and if Johnson prevails, the 34-year-old man and others with similar criminal histories could get significantly less time behind bars.
Johnson thinks it’s great the Supreme Court will reconsider his case, said Doug Olson, a federal public defender in Minnesota. “He is an intelligent guy. He appreciated what we were doing for him.”
Johnson’s views do not make him a sympathetic character. He helped revive the Minnesota chapter of the National Socialist Movement, a white supremacist group, becoming its “state leader” in 2009, court documents say. The group held some “immigration-related” protests, the papers say.
In 2010, he quit the organization because he did not think it was “extreme enough,” according to Assistant U.S. Attorney Andrew Winter.
Johnson then formed the Aryan Liberation Movement, made up of himself, an informant and an undercover law enforcement officer. The new group “was little more than an e-mail address where they communicated and exchanged ideas,” Olson wrote.
Federal prosecutors said Johnson planned to support the group by counterfeiting money and had manufactured napalm, other explosives and silencers for it. He showed the undercover officer an AK-47 rifle and a large cache of ammunition. He also acquired a .22-caliber semiautomatic assault rifle and a .45-caliber semiautomatic handgun, and he talked to his two cohorts about “potential targets [which] included individuals identified as ‘liberals’ by their bumper stickers, progressive bookstores, and the Mexican Consulate in St. Paul.”
Olson says the allegations are overstated: “It was talk and no action. It didn’t rise to the level of charging.”
Johnson was indicted by a federal grand jury in 2012 on six counts of illegal possession of firearms and ammunition. He pleaded guilty to one count, the ammunition charge.
The shotgun question
The federal Armed Career Criminal Act states that if a person has three previous convictions for a violent felony or a serious drug offense, the mandatory minimum sentence for a new offense is 15 years.
Prosecutors believe Johnson qualified for that because previously he’d been convicted of two violent offenses — robbery and attempted robbery. The third offense was possession of a sawed-off shotgun, found in the back seat of a car in which he was a passenger. Police stopped the car after a report the occupants were dealing drugs. Marijuana was discovered in the car. All three sentences were stayed.
Possessing a sawed-off shotgun is a violent crime, according to the 8th U.S. Circuit Court of Appeals, requiring a 15-year-sentence.
Olson says that’s unfair: “It’s mere possession, and mere possession of a sawed-off shotgun isn’t a violent act. … You are not using it.”
Prosecutor Winter disagrees. “There is no legitimate purpose to have a sawed-off shotgun for reasons other than to commit crimes of violence like robbery or assaults,” he said.
Olson appealed the sentence to the 8th Circuit Court of Appeals, which reaffirmed its stand that possession of the sawed-off shotgun constituted a violent crime.
Law target of many appeals
Katherine Menendez, an attorney in the local federal public defender’s office, filed a brief in October asking the U.S. Supreme Court to hear the case.
“The Fourth, Sixth, Seventh and Eleventh circuits have all ruled that possession of a sawed-off or short-barrel weapon is not a violent felony,” Menendez wrote in the brief. She noted that as a result, “two men incarcerated in the same federal prison for the same offense with identical offenses in their criminal history, face radically different sentences depending on the law in the circuit [in which] they were prosecuted.”
The solicitor general’s office countered that the U.S. Sentencing Guidelines Commission has long considered sawed-off shotgun possession a violent crime.
The Armed Career Criminal Act provisions have prompted many appeals to the Supreme Court. Justice Antonin Scalia, in a 2007 dissenting opinion, called the statute a “drafting failure” that should be voided for vagueness. He was joined by Justices John Paul Stevens, now retired, and Ruth Bader Ginsburg. In 2011, Scalia urged his fellow justices to “ring down the curtain on the [Armed Career Criminal Act] farce playing in federal courts throughout the nation.”
Both the Minneapolis federal public defender’s office and the U.S. solicitor general will be filing additional briefs, and oral arguments are expected before the high court this fall.
Randy Furst • 612-673-4224