Case o' The Week: A Wobble Bobble? – Christopher Johnson, Claims vs. Arguments, and Rule 32 on Appeal

  Priors may wobble, but they don’t fall down (in the Ninth).United States v. Christopher Johnson, 2019 WL 1523106 (9thCir. Apr. 9, 2019), decision available here.Players: Decision by Judge Mark Bennett, joined by Judges M. Smith and Nguyen.   Hard-fought appeal by AFPDs Amy Cleary and Cullen Macbeth, D. Nevada FPD.Facts: Johnson pleaded guilty to being a felon in possession of a firearm. Id. at *1. The DJ assigned a base offense level of 20, based on prior “crime of violence” felony priors. Specifically, Johnson had been convicted in California for assault with a deadly weapon (not a firearm), in violation of CPC § 245(a)(1). Id. at *2. Johnson had been sentenced to six months in county jail for that offense. Id.   In federal court, the defense objected to the use of this assault prior as a “crime of violence” because it lacked the necessary men rea. Johnson did not, however, object to its classification as a…

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