UNITED STATES v. JOHNSON (2026)

Friell Eugene Johnson was convicted of knowingly possessing a firearm as a convicted felon and sentenced to 84 months’ imprisonment, to run consecutively to any sentence that may be imposed in his state court case. He now challenges that sentence on two grounds: the district court (1) erred in finding that his prior conviction for attempted manslaughter under Florida law was a “crime of violence” when calculating his base offense level under U.S.S.G. § 2K2.1(a)(3); and (2) failed to consider U.S.S.G. § 5G1.3(c) when it imposed Johnson's federal sentence to run consecutively. Johnson also raises for the first time on appeal that the crime he was charged with, 18 U.S.C. § 922(g)(1), is facially unconstitutional under the Second Amendment.

After careful review and with the benefit of oral argument, we vacate Johnson's sentence and remand for resentencing. The district court miscalculated Johnson's base offense level: Florida attempted manslaughter is not a crime of violence under the Sentencing Guidelines. Nor does the district court's Keene ¹ statement shield that error from reversal. The district court did not, however, abuse its discretion when it imposed Johnson's sentence to run consecutively to any future state court sentence. We also reject Johnson's constitutional challenge to § 922(g)(1).

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 18, 2021, Friell Johnson was indicted with one count of knowingly possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to the charge. In his presentence investigation report (“PSI”), the probation officer determined that Johnson's base offense level was 22, pursuant to U.S.S.G. § 2K2.1(a)(3), because his offense involved a semiautomatic firearm and Johnson's prior Florida conviction for attempted manslaughter was a crime of violence. Johnson also received a six-level increase because his offense involved a stolen firearm in connection with possession of drugs. He then received a three-level decrease for accepting responsibility, resulting in a total offense level of 25. Johnson also received a criminal history category of IV. The probation officer recommended a Guidelines range of 84 to 105 months.

Johnson objected to the probation officer's calculation of his base offense level under § 2K2.1(a)(3), arguing that his Florida conviction for attempted manslaughter did not qualify as a crime of violence for sentencing enhancement purposes. Johnson also requested that the district court order his sentence to run concurrently with an anticipated sentence in his pending state court case.

At the beginning of Johnson's sentencing, his counsel re-raised the objection to Johnson's base offense level calculation. The district court acknowledged the objection but ruled that Johnson's attempted manslaughter conviction was a crime of violence, as defined in § 4B1.2(a), and therefore, did not find any error in how the Guidelines range was calculated. The district court then added that regardless of whether the attempted manslaughter conviction qualified as a crime of violence, it would have given the same sentence.

The district court went on to hear the parties’ sentencing arguments, the § 3553(a) factors, and Johnson's allocution. Johnson again requested that the district court run his federal sentence concurrently with his anticipated sentence in his state court case. The district court concluded that it had no problem giving Johnson the bottom of the Guidelines range of 84 months, but it was “the absolute minimum that he [was] deserving.” But the district court did not agree that Johnson's sentence should run concurrently with any anticipated state court sentence. Instead, the district court specifically found that the federal sentence should run consecutively with “any sentence imposed by the state court.”

Thus, accounting for the statements from all parties, the PSI, and the § 3553(a) factors, the district court sentenced Johnson to 84 months to run consecutively to any anticipated state court sentence.

Johnson timely appealed his conviction and sentence.

II. STANDARD OF REVIEW

We review de novo whether a defendant's prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines. United States v. Dixon, 874 F.3d 678, 680 (11th Cir. 2017). If there is an error in the Guidelines calculations, we may still affirm the sentence as harmless so long as the sentencing court explained that it would have imposed the same sentence and the sentence was reasonable. Keene, 470 F.3d at 1349.

We review a sentencing court's order to have the federal sentence run consecutively to a state sentence for abuse of discretion. United States v. Gomez, 955 F.3d 1250, 1255 (11th Cir. 2020). And we review de novo challenges to the constitutionality of a statute. United States v. Johnson, 981 F.3d 1171, 1191 (11th Cir. 2020). But if such challenges were never raised in the lower court, then we review only for plain error. Id.

III. ANALYSIS

Johnson raises three issues on appeal. First, Johnson contends that there was an error in his Sentencing Guidelines calculation because his prior Florida attempted manslaughter conviction did not constitute a crime of violence for enhancement purposes. Johnson next argues that the district court abused its discretion by ordering his sentence to run consecutively, instead of concurrently, to his anticipated state court sentence. Lastly, Johnson asserts that his underlying charged offense—§ 922(g)(1)—is unconstitutional under New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 (2022) and United States v. Rahimi, 602 U.S. 680, 144 S.Ct. 1889, 219 L.Ed.2d 351 (2024). We address each argument in turn.

A. The district court erred in finding that Johnson's attempted manslaughter conviction was a crime of violence, and the error was not harmless.

Johnson first argues that the district court procedurally erred because it improperly calculated his Guidelines range. We have determined that “significant procedural error[s]” include “failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence—including an explanation for any deviation from the Guidelines range.” United States v. Curtin, 78 F.4th 1299, 1311 (11th Cir. 2023) (quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007)). When the district court commits a procedural error, we will vacate and remand for resentencing unless the government can establish that the error was harmless. United States v. Campa, 529 F.3d 980, 1013 (11th Cir. 2008).

A sentencing error is harmless “if a court considers the proceedings in their entirety and determines that the error did not affect the sentence ‘or had but very slight effect.’ ” Id. (quoting Kotteakos v. United States, 328 U.S. 750, 764, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “Remand is not appropriate if we determine that the district court's error did not impact its ultimate sentence and the ultimate sentence is substantively reasonable.” United States v. Grushko, 50 F.4th 1, 18–19 (11th Cir. 2022) (citing Keene, 470 F.3d at 1348–50). We first address whether the district court here committed a Guidelines error, and if so, whether that error was harmless.

i. Johnson's attempted manslaughter under Florida law is not a crime of violence under § 4B1.2(a).

The procedural error asserted here involves U.S.S.G. § 2K2.1(a)(3), which provides that the base offense level is 22 if the offense involved a “semiautomatic firearm that is capable of accepting a large capacity magazine ․ and ․ the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” The Guidelines define “crime of violence” as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 26 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).

U.S.S.G. § 4B1.2(a).

On appeal, Johnson argues that his prior Florida conviction is not a “crime of violence” under § 4B1.2(a) because inchoate offenses, like attempted manslaughter, are not enumerated under § 4B1.2(a)(2). The government concedes the point, and rightly so.

Section 4B1.2(a)(2) does not contemplate any inchoate offenses as a “crime of violence.” Although § 4B1.2(a)’s commentary further defines “crime of violence” to include inchoate offenses, we held in United States v. Dupree, 57 F.4th 1269, 1273–79 (11th Cir. 2023) (en banc), that we extend no deference to the agency's interpretation of a phrase when there is no ambiguity in the regulation. As we explained there, when an agency regulation is unambiguous, “there is no plausible reason” to defer to its commentary, which is merely “an agency's interpretation of its own legislative rules.” Id. at 1275–76 (quoting Kisor v. Wilkie, 588 U.S. 558, 575, 139 S.Ct. 2400, 204 L.Ed.2d 841 (2019) and Stinson v. United States, 508 U.S. 36, 45, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993)). We then applied that rule to § 4B1.2(b)’s phrase “controlled substance offense” and held that its plain language definition “unambiguously exclude[d] inchoate offenses” because nowhere in that definition did it reference conspiracy or attempt crimes. Id. at 1277. The commentary stating otherwise did not change that conclusion. Id. at 1279.

So too here. Section 4B1.2(a)(2) identifies the specific offenses that qualify as a “crime of violence” and nowhere references inchoate crimes. To read an attempt version of these enumerated offenses into the definition would improperly “add an offense not listed in the Guideline[s].” Id. at 1278 (citation modified) (quoting United States v. Havis, 927 F.3d 382, 386 (6th Cir. 2019) (en banc)). Given § 4B1.2(a)(2)’s unambiguous definition, we decline to defer to the commentary's definition.²

Thus, if there is a basis to conclude that attempted manslaughter under Florida law is a crime of violence, it must be in the elements clause of § 4B1.2(a)(1).

“To determine whether a prior conviction qualifies as a ‘crime of violence’ [under § 4B1.2(a)(1)], we apply a categorical approach, looking at the statutory definition of a prior offense rather than at the particular facts underlying a conviction.” Dixon, 874 F.3d at 680. “A prior conviction qualifies as a ‘crime of violence’ under the elements clause of the Sentencing Guidelines only if the minimum conduct criminalized by the statute necessarily involves ‘the use, attempted use, or threatened use of physical force against the person of another.’ ” Id. (quoting U.S.S.G. § 4B1.2(a)(1)). As the Supreme Court put it, “[t]he only relevant question is whether [the alleged crime of violence] at issue always requires the government to prove—beyond a reasonable doubt, as an element of its case— the use, attempted use, or threatened use of force.” United States v. Taylor, 596 U.S. 845, 850, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022) (emphasis added). And we have defined physical force as “violent force—that is, force capable of causing physical pain or injury to another person.” Dixon, 874 F.3d at 680 (emphasis in original) (quoting Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010)).

Florida's attempt statute provides that a “person who attempts to commit an offense prohibited by law and in such attempt does any act toward the commission of such offense, but fails in the perpetration or is intercepted or prevented in the execution thereof, commits the offense of criminal attempt.” Fla. Stat. § 777.04(1). Florida's manslaughter crime is “[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification.” Fla. Stat. § 782.07(1).

The Florida crime of attempted manslaughter requires the government to prove “an intent to commit an act that would have resulted in the death of the victim except that the defendant was prevented from killing the victim or failed to do so.” Montgomery v. State, 70 So. 3d 603, 605–06 (Fla. Dist. Ct. App. 2009). (emphasis added). That is because, under Florida law, to establish criminal attempt the government must prove two general elements: (1) “a specific intent to commit a particular crime” and (2) “an overt act toward its commission.” Thomas v. State, 531 So. 2d 708, 710 (Fla. 1988). With that requirement of specific intent, there cannot be a corresponding attempt crime for manslaughter by culpable negligence. Taylor v. State, 444 So. 2d 931, 934 (Fla. 1983).

Nothing under Florida's attempted manslaughter, which can be performed only by act or procurement, requires the government to always prove “the use, attempted use, or threatened use of physical force.” § 4B1.2(a)(1). To convict, the government needs to only show an intent to commit an act and an overt action toward achieving it. An overt act must be beyond mere preparation, but there is no requirement that the defendant must engage or attempt to engage in some form of physical force. See Thomas, 531 So. 2d at 710.

Consider, for example, Florida manslaughter by procurement, which requires the government to prove that the defendant committed an intentional act to “persuade, induce, prevail upon or cause a person” to cause the death of another. White v. State, 72 So. 3d 208, 210 (Fla. Dist. Ct. App. 2011) (quoting Fla. Std. Jury Instr. (Crim.) 7.7). An attempt version of that crime could involve a defendant persuading a third person to kill the defendant's intended victim—perhaps through lies or blandishments to which the third person is particularly susceptible—only for the police to foil the plot in its planning stages. The defendant did not use, attempt to use, or threaten to use physical force, but the government could secure a conviction against the defendant for attempted manslaughter without mentioning physical force at all.

We therefore conclude that attempted manslaughter under Florida law is not a “crime of violence” under § 4B1.2(a)(1) because it does not always require the government to prove, as an element, the use, attempted use, or threatened use of physical force.

ii. The district court's Keene statement is ineffective.

Because Florida's crime of attempted manslaughter is not a “crime of violence” under § 4B1.2(a)(1), the Sentencing Guidelines calculation applied to Johnson was incorrect. Johnson's base offense level should have been two levels lower (20, not 22), resulting in a total offense level of 23, not 25, and reducing his Guidelines range from 84-to-105 months to 70-to-87 months. The government admits this error but argues that the error is harmless and does not warrant reversal because the district court gave a Keene statement, stating that it would have given the same sentence even if Johnson's Guidelines range had been correctly calculated.

Keene allows us to bypass a disputed Guidelines issue when the district court states that resolving the issue in the defendant's favor would not alter the sentence ultimately imposed. 470 F.3d at 1349. In that circumstance, we assume the defendant's Guidelines position is correct, recalculate the advisory range accordingly, and ask whether the sentence remains substantively reasonable under the lower range. Grushko, 50 F.4th at 18 (citing Keene, 470 F.3d at 1349–50). If it does, the Guidelines error is harmless because it had no effect on the sentence imposed.

But the timing of a district court's Keene statement matters, and our decision in United States v. Morilla, 177 F.4th 1291 (11th Cir. 2026), controls here. There, the district court overruled two Guidelines objections and immediately announced that it would impose the same sentence independent of the Guidelines. Id. at 1300. But the court made that announcement before hearing the parties’ § 3553(a) arguments and before giving the defendant an opportunity to allocute. Id. Only afterward did the court invite the defendant to speak and hear counsel's sentencing presentation. Id.

We held that the statement could not render the Guidelines error harmless. Although Keene did not specify precisely when a district court must announce an alternative sentence, its reasoning requires the statement to come “after both sides are heard and all relevant factors are considered.” Id. (citing Keene, 470 F.3d at 1349). The district court's contrary sequencing “turn[ed] Keene’s harmlessness inquiry on its head.” Id. at 1301. A statement made before the § 3553(a) presentation and allocution cannot reliably establish that the court would impose the same sentence after completing those steps. It either “reflects that the sentencing decision was effectively fixed” beforehand or “reflects that the court had not yet completed the holistic § 3553(a) analysis that Keene presupposes.” Id. Either way, the statement “does not reliably demonstrate what Keene requires.” Id.

Nor does allowing the defendant to speak afterward cure the defect. As Morilla explained, “allocution is not a hollow ritual.” Id. Once the court has already announced that the outcome will remain the same, the record no longer permits confidence that the defendant's opportunity to speak had “any realistic potential to affect the sentence.” Id. at 1301–02.

The same sequence occurred here. Immediately after resolving the disputed Guidelines issue, the district court announced that it would impose the same sentence. The district court, however, had not heard the parties’ sentencing arguments, considered the § 3553(a) factors, or allowed the defendant to allocute. Because the district court made its statement at a “procedurally premature point in the sentencing sequence,” it cannot insulate Johnson's sentence from appellate review. Morilla, 177 F.4th at 1302. And the government has identified no other basis for finding the conceded Guidelines error harmless. We thus vacate Johnson's sentence and remand for resentencing without the § 4B1.2(a) enhancement.³

B. The district court did not abuse its discretion in ordering Johnson's federal sentence to run consecutively to his state sentence.

Johnson next argues that the district court erred when it ordered his federal sentence to run consecutively, instead of concurrently, to any potential state court sentence. Under U.S.S.G. § 5G1.3(c), the federal sentence “shall be imposed to run concurrently” to the anticipated “state term of imprisonment” that arises from “another offense that is relevant conduct to the [federal] offense of conviction.” Although United States v. Booker, 543 U.S. 220, 245, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), held that the Sentencing Guidelines are advisory, Johnson argues that the district court still had an obligation to consider § 5G1.3(c)’s applicability and policy when determining his sentence and to explain why it chose a non-concurrent sentence. See United States v. Brown, 772 F.3d 1262, 1266 (11th Cir. 2014); United States v. Pugh, 515 F.3d 1179, 1189 (11th Cir. 2008). And here, Johnson argues that the district court made no such consideration.

It is true that, post-Booker, district courts are free to disagree with the Sentencing Guidelines, but that does not mean that district courts can simply disregard them. They must still “ ‘consult those Guidelines and take them into account when sentencing’—what we have described as establishing the ‘procedural reasonableness’ of a sentence.” United States v. Henry, 1 F.4th 1315, 1320 (11th Cir. 2021) (quoting Booker, 543 U.S. at 264, 125 S.Ct. 738). Thus, while a district court can impose a sentence outside the Guidelines range, the court still must state why the sentence reflects the factors outlined in § 3553(a): “the nature and circumstances of the crime, the need for the sentence imposed, the kinds of sentences available, and the like.” Id. at 1321 (citing Booker, 543 U.S. at 245, 125 S.Ct. 738); see Kimbrough v. United States, 552 U.S. 85, 90, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (explaining that the Guidelines “now serve as one factor among several courts must consider in determining an appropriate sentence”).

The Supreme Court has explained that a district court does not need to provide a detailed explanation of its sentencing decision, just “enough to satisfy the appellate court that he has considered the parties’ arguments and has a reasoned basis for exercising [its] own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). “Where the judge imposes a sentence outside the Guidelines, the judge will explain why he has done so,” id. at 357, 127 S.Ct. 2456, as “to allow for meaningful appellate review and to promote the perception of fair sentencing,” Gall, 552 U.S. at 50, 128 S.Ct. 586. The explanation does not need to account for every § 3553(a) factor, but the district court must acknowledge that it considered the defendant's arguments and those factors. United States v. Gonzalez, 550 F.3d 1319, 1324 (11th Cir. 2008). And we may look to the record and the case's context to determine the district court's reasoning for imposing a specific sentence. Rita, 551 U.S. at 359, 127 S.Ct. 2456.

Johnson's sticking point is that the district court neither acknowledged § 5G1.3(c) or its policy in determining his sentence nor explained, under the § 3553(a) factors, why it deviated from the Guidelines to impose a consecutive sentence. We disagree.

While the district court here did not specifically reference § 5G1.3(c), it is incorrect to say that the district court failed to justify the variance when it imposed a non-concurrent sentence. At sentencing, Johnson argued that his federal sentence should be on the low end of the Guidelines range and run concurrently with any potential state court sentence because he would face significant time otherwise. The government responded that it normally would not agree to a low-end sentence given Johnson's significant criminal history, including multiple burglaries and a shooting. But because Johnson was facing significant time from his state court sentencing, the government agreed to a low-end sentence. The district court considered and then rejected Johnson's request, specifically stating that given Johnson's extensive criminal history and the nature of that criminal history, an 84-month sentence was the “absolute minimum” that he deserved, and, because of Johnson's criminal background, the district court specifically found that the federal sentence “should run consecutively to any sentence imposed by the state court.” In making that finding, the district court made clear that it disagreed with § 5G1.3(c)’s rule that the sentences should be run concurrently, even if the district court never referenced the section by name. The district court added that it considered the parties’ arguments, the PSI, and the § 3553(a) factors.

As such, the district court has fulfilled its obligation. The district court here gave us its basis for deviating from the Guidelines recommendations by emphasizing the extensiveness and nature of Johnson's criminal history. The district court intentionally sentenced Johnson to the low end of the Guidelines range, reasoning that an adequate and fair punishment accounted for a consecutive state sentence. And the district court arrived at that decision after reviewing the parties’ arguments, the PSI, and the § 3553(a) factors. We cannot conclude from this record that the district court abused its discretion in reaching that decision.

C. Section 922(g)(1) is facially constitutional.

Lastly, Johnson argues that § 922(g)(1) is facially unconstitutional following Bruen and Rahimi.⁴ But his challenge is foreclosed by our precedent, United States v. Rozier, 598 F.3d 768, 770–71 (11th Cir. 2010), where we held that § 922(g)(1) is constitutional. We have also since held that Bruen and Rahimi do not abrogate Rozier. United States v. Dubois, 139 F.4th 887, 888–89 (11th Cir. 2025). Because Rozier is still binding precedent, Johnson's Second Amendment challenge fails.

IV. CONCLUSION

For the reasons stated, we conclude that the district court erred in finding that Florida attempted manslaughter is a crime of violence under § 4B1.2(a), and that its Keene statement does not shield its error from reversal. But we also conclude that the district court did not abuse its discretion in running Johnson's sentence consecutively to any state court sentence. Lastly, Johnson's Second Amendment challenge to § 922(g)(1) fails under our binding precedent. We vacate Johnson's sentence and remand to the district court for resentencing.

AFFIRMED IN PART; REVERSED IN PART.

FOOTNOTES

1.   United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).

2.   On November 1, 2023, the United States Sentencing Commission amended § 4B1.2 to include an “Inchoate Offenses Included” section specifying that the terms “crime of violence” and “controlled substance offense” “include the offenses of aiding and abetting, attempting to commit, or conspiring to commit any such offense.” § 4B1.2(d). This amendment does not affect this case because on appeal we “apply the version of the guidelines in effect on the date of the sentencing hearing.” United States v. Descent, 292 F.3d 703, 707 (11th Cir. 2002). Johnson was indicted on March 18, 2021 and sentenced on November 18, 2021, about two years before § 4B1.2(d)’s amendment.

3.   Because we conclude that the district court committed a procedural error in calculating the Guidelines range and the government has failed to prove that such an error was harmless, we need not determine whether the sentence was substantively reasonable.

4.   Johnson concedes that he never raised this constitutional argument in the district court, but when a challenge to the constitutionality of a statute is raised “for the first time on appeal,” we review for plain error. United States v. Wright, 607 F.3d 708, 715 (11th Cir. 2010). Accordingly, we review Johnson's challenge for plain error. See United States v. Alfonso, 104 F.4th 815, 828 (11th Cir. 2024) (“We ordinarily review de novo the constitutionality of a statute, because it presents a question of law, but we review for plain error where a defendant raises his constitutional challenge for the first time on appeal.” (citation modified)).

Lagoa, Circuit Judge: