Order Vacating 924(c) Convictions Wasn’t Acquittal; Retrial Not Barred

US v. Johnson: In 2010, Johnson was charged with multiple counts of Hobbs Act robbery, Hobbs Act conspiracy, and two counts of brandishing a firearm under 18 USC 924(c). He agreed to plead guilty to the two 924(c) charges. In the indictment those charges referenced, as the relevant “crime of violence,” both specific robbery charges as well as the conspiracy charge. In the plea agreement, however, the only identified crime of violence was conspiracy. The statement of facts that was part of the plea agreement, however, referenced both the actual robberies and the conspiracy. The district court accepted the guilty plea and sentenced Johnson to 84 months on one 924(c) charge and a consecutive 300-month term on the second.

In 2016, Johnson filed a 2255 motion (based on the Supreme Court’s Johnson decision) arguing that conspiracy to commit Hobbs Act robbery was no longer a crime of violence. As it was the offense cited in the plea agreement, the 924(c) convictions were invalid. The district court granted the motion and vacated those convictions, rejecting the Government’s argument that they were still valid because they were also predicated on the robberies, not jut the conspiracy. The Government obtained an arrest warrant for Johnson on the two 924(c) charges, on the basis that it would reprosecute him with different predicate offenses. Johnson sought to dismiss the warrant, arguing that to do so would violate the Double Jeopardy clause. The district court concluded there was no Double Jeopardy issue, but dismissed the arrest warrant, while allowing Johnson’s continued detention on the other, previously dismissed, charges from the indictment.

Johnson filed an interlocutory appeal, in which the Fourth Circuit affirmed the district court’s conclusion that there was no Double Jeopardy issue with Johnson’s further prosecution. The court distinguished between an acquittal – “any ruling that the prosecution’s proof is insufficient” – and a procedural dismissal addressing “questions that are unrelated to factual guilt or innocence.” Only the first triggers Double Jeopardy protections and prevents further prosecution. The court held that the district court’s order was a procedural ruling, not an acquittal, rejecting Johnson’s argument that recent Supreme Court precedent defined “acquittal” broadly and should include order “premised on legal innocence” as well as factual.