United States v. Friell Johnson
CourtCourt of Appeals for the Eleventh Circuit
Date FiledOctober 14, 2026
Docket21-14144
StatusPublished
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Full Opinion
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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14144
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRIELL EUGENE JOHNSON,
a.k.a. realrambo3,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:21-cr-20164-KMM-1
____________________
Before LUCK, LAGOA, and ABUDU, Circuit Judges.
LAGOA, Circuit Judge:
Friell Eugene Johnson was convicted of knowingly pos-
sessing 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
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2 Opinion of the Court 21-14144
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 at-
tempted manslaughter is not a crime of violence under the Sen-
tencing 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 con-
secutively to any future state court sentence. We also reject John-
son’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 de-
termined that Johnson’s base offense level was 22, pursuant to
U.S.S.G. § 2K2.1(a)(3), because his offense involved a
1 United States v. Keene, 470 F.3d 1347 (11th Cir. 2006).
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21-14144 Opinion of the Court 3
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 to-
tal offense level of 25. Johnson also received a criminal history cat-
egory 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 con-
viction for attempted manslaughter did not qualify as a crime of
violence for sentencing enhancement purposes. Johnson also re-
quested that the district court order his sentence to run concur-
rently 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 de-
fined 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 sen-
tence.
The district court went on to hear the parties’ sentencing ar-
guments, the § 3553(a) factors, and Johnson’s allocution. Johnson
again requested that the district court run his federal sentence
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4 Opinion of the Court 21-14144
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 spe-
cifically 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 sen-
tence as harmless so long as the sentencing court explained that it
would have imposed the same sentence and the sentence was rea-
sonable. Keene, 470 F.3d at 1349.
We review a sentencing court’s order to have the federal sen-
tence 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
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21-14144 Opinion of the Court 5
such challenges were never raised in the lower court, then we re-
view only for plain error. Id.
III. ANALYSIS
Johnson raises three issues on appeal. First, Johnson con-
tends that there was an error in his Sentencing Guidelines calcula-
tion 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
(2022) and United States v. Rahimi, 602 U.S. 680 (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 de-
termined 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) fac-
tors, selecting a sentence based on clearly erroneous facts, or failing
to adequately explain the chosen sentence—including an explana-
tion for any deviation from the Guidelines range.” United States v.
Curtin, 78 F.4th 1299, 1311 (11th Cir. 2023) (quoting Gall v. United
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6 Opinion of the Court 21-14144
States, 552 U.S. 38, 51 (2007)). When the district court commits a
procedural error, we will vacate and remand for resentencing un-
less 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 pro-
ceedings in their entirety and determines that the error did not af-
fect the sentence ‘or had but very slight effect.’” Id. (quoting Kottea-
kos v. United States, 328 U.S. 750, 764 (1946)). “Remand is not appro-
priate if we determine that the district court’s error did not impact
its ultimate sentence and the ultimate sentence is substantively rea-
sonable.” 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 accept-
ing 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—
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(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 ex-
plosive 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 of-
fenses, 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 of-
fenses 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 inter-
pretation 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 (2019) and Stin-
son v. United States, 508 U.S. 36, 45 (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]
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inchoate offenses” because nowhere in that definition did it refer-
ence 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 of-
fenses 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 man-
slaughter 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 ap-
proach, looking at the statutory definition of a prior offense rather
than at the particular facts underlying a conviction.” Dixon, 874
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 of-
fenses of aiding and abetting, attempting to commit, or conspiring to commit
any such offense.” § 4B1.2(d). This amendment does not affect this case be-
cause 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.
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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 (2022) (emphasis added). And we have de-
fined physical force as “violent force—that is, force capable of caus-
ing 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 (2010)).
Florida’s attempt statute provides that a “person who at-
tempts 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 hu-
man being by the act, procurement, or culpable negligence of an-
other, 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
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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 negli-
gence. 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 phys-
ical force.” § 4B1.2(a)(1). To convict, the government needs to only
show an intent to commit an act and an overt action toward achiev-
ing it. An overt act must be beyond mere preparation, but there is
no requirement that the defendant must engage or attempt to en-
gage in some form of physical force. See Thomas, 531 So. 2d at 710.
Consider, for example, Florida manslaughter by procure-
ment, 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 de-
fendant 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
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use, or threaten to use physical force, but the government could
secure a conviction against the defendant for attempted man-
slaughter 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 inef-
fective.
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 of-
fense 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 govern-
ment 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
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12 Opinion of the Court 21-14144
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 Guide-
lines 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 harm-
lessness 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 ef-
fectively 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.
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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 re-
main the same, the record no longer permits confidence that the
defendant’s opportunity to speak had “any realistic potential to af-
fect the sentence.” Id. at 1301–02.
The same sequence occurred here. Immediately after re-
solving the disputed Guidelines issue, the district court announced
that it would impose the same sentence. The district court, how-
ever, 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 sen-
tence 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 or-
dering Johnson’s federal sentence to run consecu-
tively to his state sentence.
Johnson next argues that the district court erred when it or-
dered his federal sentence to run consecutively, instead of
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.
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14 Opinion of the Court 21-14144
concurrently, to any potential state court sentence. Under U.S.S.G.
§ 5G1.3(c), the federal sentence “shall be imposed to run concur-
rently” to the anticipated “state term of imprisonment” that arises
from “another offense that is relevant conduct to the [federal] of-
fense of conviction.” Although United States v. Booker, 543 U.S. 220,
245 (2005), held that the Sentencing Guidelines are advisory, John-
son 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 ar-
gues 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). 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); see Kimbrough v.
United States, 552 U.S. 85, 90 (2007) (explaining that the Guidelines
“now serve as one factor among several courts must consider in
determining an appropriate sentence”).
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The Supreme Court has explained that a district court does
not need to provide a detailed explanation of its sentencing deci-
sion, just “enough to satisfy the appellate court that he has consid-
ered the parties’ arguments and has a reasoned basis for exercising
[its] own legal decisionmaking authority.” Rita v. United States, 551
U.S. 338, 356 (2007). “Where the judge imposes a sentence outside
the Guidelines, the judge will explain why he has done so,” id. at
357, as “to allow for meaningful appellate review and to promote
the perception of fair sentencing,” Gall, 552 U.S. at 50. The expla-
nation 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 impos-
ing a specific sentence. Rita, 551 U.S. at 359.
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 jus-
tify 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
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16 Opinion of the Court 21-14144
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 dis-
trict court considered and then rejected Johnson’s request, specifi-
cally stating that given Johnson’s extensive criminal history and the
nature of that criminal history, an 84-month sentence was the “ab-
solute minimum” that he deserved, and, because of Johnson’s crim-
inal background, the district court specifically found that the fed-
eral 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 refer-
enced the section by name. The district court added that it consid-
ered 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 Guide-
lines recommendations by emphasizing the extensiveness and na-
ture of Johnson’s criminal history. The district court intentionally
sentenced Johnson to the low end of the Guidelines range, reason-
ing that an adequate and fair punishment accounted for a consecu-
tive 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.
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21-14144 Opinion of the Court 17
Lastly, Johnson argues that § 922(g)(1) is facially unconstitu-
tional 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 prece-
dent. We vacate Johnson’s sentence and remand to the district
court for resentencing.
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 mod-
ified)).
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18 Opinion of the Court 21-14144
AFFIRMED IN PART; REVERSED IN PART.