3. Analysis: Legal Reasoning and Precedents
A. Why Florida attempted manslaughter was not a qualifying predicate
Two distinct routes to classification
The applicable § 4B1.2(a) supplied two possible routes. Its elements clause covered offenses requiring the use, attempted use, or threatened use of physical force against another person. Its enumerated-offenses clause listed particular crimes, including murder and voluntary manslaughter. The court examined both routes rather than assuming that an offense involving possible death necessarily qualified.
The enumerated-offenses clause could not be expanded by commentary
Although the Guidelines commentary included attempt and other inchoate offenses, the relevant enumerated-offenses text did not. The government conceded that attempted manslaughter could not qualify through that clause.
The controlling interpretive foundation was United States v. Dupree, 57 F.4th 1269 (11th Cir. 2023) (en banc). There, the court held that the definition of “controlled substance offense” unambiguously excluded inchoate offenses and that commentary could not enlarge the definition. Johnson applies that same reasoning to the enumerated crime-of-violence definition: commentary cannot add attempted versions of offenses that the operative text does not include.
The opinion connects Dupree to Kisor v. Wilkie, 588 U.S. 558 (2019), and Stinson v. United States, 508 U.S. 36 (1993). Those decisions concern the treatment of agency interpretations and Guidelines commentary. As applied here, the critical threshold was textual ambiguity. Because the guideline was unambiguous, there was no interpretive gap for commentary to fill.
United States v. Havis, 927 F.3d 382 (6th Cir. 2019) (en banc), supplied the supporting proposition, quoted through Dupree, that commentary cannot “add an offense not listed in the Guideline[s].” The reasoning thus concerns the boundary between interpretation and substantive expansion, not merely the wording of Florida’s offense.
The 2023 amendment limits the holding’s temporal reach
The court expressly acknowledged that, effective November 1, 2023, § 4B1.2(d) incorporated aiding and abetting, attempt, and conspiracy into the guideline text. That amendment did not govern Johnson’s November 2021 sentencing.
For this point, the court cited United States v. Descent, 292 F.3d 703 (11th Cir. 2002), which directs appellate review using the Guidelines version in effect at sentencing. Accordingly, the opinion should not be read as holding that the current Guidelines categorically exclude attempt offenses. Nor does it resolve whether Florida attempted manslaughter satisfies every requirement of the amended definition.
The elements clause required a categorical inquiry
Under United States v. Dixon, 874 F.3d 678 (11th Cir. 2017), classification is reviewed de novo and turns on the offense’s statutory elements, not the defendant’s actual behavior. A prior conviction qualifies only if the minimum conduct criminalized necessarily involves the required force.
United States v. Taylor, 596 U.S. 845 (2022), reinforced the decisive question: must the prosecution always prove the use, attempted use, or threatened use of force as an element? An offense’s name, dangerous purpose, or likely consequences cannot replace that inquiry.
The relevant meaning of “physical force” came from Johnson v. United States, 559 U.S. 133 (2010), as quoted in Dixon: violent force capable of causing physical pain or injury. This Supreme Court decision is distinct from the similarly named Eleventh Circuit case cited elsewhere in the opinion for standards of review.
Florida law permits attempted manslaughter without a necessary force element
Florida’s manslaughter statute encompasses killing by act, procurement, or culpable negligence. Its attempt statute requires an act toward committing an offense that fails or is interrupted. The state precedents explain how those provisions interact:
- Montgomery v. State, 70 So. 3d 603 (Fla. Dist. Ct. App. 2009), describes attempted manslaughter as requiring intent to commit an act that would have caused death had the defendant not failed or been prevented. The focus is the intended act, not an automatic equation with attempted murder.
- Thomas v. State, 531 So. 2d 708 (Fla. 1988), identifies the general attempt requirements: specific intent and an overt act toward commission. Although the overt act must go beyond preparation, that requirement does not necessarily demand physical force.
- Taylor v. State, 444 So. 2d 931 (Fla. 1983), establishes that attempted manslaughter cannot rest on culpable negligence. The federal court therefore did not rely on the completed offense’s negligence alternative to defeat classification.
- White v. State, 72 So. 3d 208 (Fla. Dist. Ct. App. 2011), explains manslaughter by procurement through intentional conduct persuading, inducing, prevailing upon, or causing another person to cause death.
The procurement alternative supplied the critical illustration. A defendant might persuade a susceptible third party to kill someone through lies or inducements, only for police to stop the plan before violence occurs. On the court’s reasoning, Florida could establish attempted manslaughter without proving that the defendant used, attempted to use, or threatened physical force.
The distinction is between attempting an offense that might culminate in violence and necessarily attempting physical force as an element of that offense. Because those categories do not always coincide, Florida attempted manslaughter failed the elements-clause test.
B. Why the alternative-sentence statement did not establish harmless error
The government bore the burden of showing harmlessness
United States v. Curtin, 78 F.4th 1299 (11th Cir. 2023), drawing on Gall v. United States, 552 U.S. 38 (2007), identifies an incorrectly calculated Guidelines range as significant procedural error. Advisory Guidelines still must be calculated correctly.
Under United States v. Campa, 529 F.3d 980 (11th Cir. 2008), the government must establish that such an error was harmless to avoid resentencing. The opinion also invokes Kotteakos v. United States, 328 U.S. 750 (1946): viewed in the context of the entire proceeding, the error must have had no effect, or only a very slight effect, on the sentence.
The Keene framework is conditional, not automatic
United States v. Keene, 470 F.3d 1347 (11th Cir. 2006), permits affirmance despite a disputed Guidelines issue when the district court would impose the same sentence under the defendant’s preferred calculation and that sentence is substantively reasonable. United States v. Grushko, 50 F.4th 1 (11th Cir. 2022), restates this approach: assume the defendant’s position is correct, calculate the lower range, and assess substantive reasonableness.
However, an alternative-sentence declaration must reliably describe the result of a completed sentencing process. It cannot operate as a formula that automatically protects a sentence from reversal.
Morilla made the sequence decisive
United States v. Morilla, 177 F.4th 1291 (11th Cir. 2026), controlled the timing question. There, the sentencing judge announced an unchanged alternative sentence before hearing the parties’ sentencing arguments and the defendant’s allocution. The Eleventh Circuit held that the statement could not establish harmlessness because it preceded the full assessment that Keene presupposes.
Johnson’s sentencing followed the same sequence. Immediately after rejecting the Guidelines objection, the district court announced that the disputed classification would not change the sentence. Only afterward did it hear the sentencing presentations and Johnson’s personal statement.
That sequencing creates two possibilities, neither sufficient for harmlessness: the result was effectively fixed before the defendant was fully heard, or the court had not yet completed the analysis needed to support a reliable alternative sentence. Merely permitting allocution afterward did not cure the problem. As Morilla emphasized, allocution is not a hollow ritual.
Because the government offered no independent basis for harmlessness, resentencing was required. Importantly, the court did not hold that 84 months was necessarily excessive. Although 84 months also falls within the corrected 70-to-87-month range, that overlap did not itself establish harmlessness.
C. Why the consecutive-sentence decision survived review
An advisory recommendation remains a required consideration
Section 5G1.3(c) recommends concurrent federal imprisonment when an anticipated state sentence concerns another offense constituting relevant conduct to the federal conviction. Johnson argued that the district court failed to consider that recommendation or explain its departure from it.
United States v. Gomez, 955 F.3d 1250 (11th Cir. 2020), supplies abuse-of-discretion review for the consecutive-sentence decision. Within that framework, United States v. Booker, 543 U.S. 220 (2005), establishes that the Guidelines are advisory, while United States v. Henry, 1 F.4th 1315 (11th Cir. 2021), emphasizes that advisory status does not permit courts simply to disregard them.
United States v. Brown, 772 F.3d 1262 (11th Cir. 2014), and United States v. Pugh, 515 F.3d 1179 (11th Cir. 2008), appear in support of Johnson’s contention that the relevant guideline and sentencing policy required consideration and an explanation. Kimbrough v. United States, 552 U.S. 85 (2007), supplies the broader principle that the Guidelines are one factor among several informing the appropriate sentence.
The record supplied an adequate explanation
Rita v. United States, 551 U.S. 338 (2007), requires enough explanation to demonstrate consideration of the parties’ arguments and a reasoned exercise of sentencing authority. It also permits appellate courts to examine the surrounding record and context. Gall v. United States connects explanation to meaningful appellate review and the perception of fair sentencing. United States v. Gonzalez, 550 F.3d 1319 (11th Cir. 2008), confirms that a judge need not discuss every § 3553(a) factor individually.
Here, Johnson requested a low-end, concurrent sentence because of the additional imprisonment he faced in state court. The government accepted a low-end federal sentence despite his criminal history because substantial state punishment remained possible. The district court expressly relied on the extent and nature of that history, including burglaries and a shooting, characterized 84 months as the “absolute minimum,” and specifically ordered consecutive service.
The court also acknowledged the parties’ arguments, the presentence report, and the § 3553(a) factors. Taken together, those statements demonstrated an intentional, explained rejection of concurrent sentencing. Expressly naming § 5G1.3(c) was unnecessary on this record.
This holding does not authorize silent disregard of an applicable guideline. It recognizes that substantive engagement can be demonstrated through context rather than a mandatory citation formula.
D. Why the Second Amendment challenge failed
Johnson relied on 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), to challenge § 922(g)(1) on its face. The panel did not undertake a new historical analysis because circuit precedent already resolved the issue.
United States v. Rozier, 598 F.3d 768 (11th Cir. 2010), upheld § 922(g)(1). More recently, United States v. Dubois, 139 F.4th 887 (11th Cir. 2025), held that neither Bruen nor Rahimi abrogated Rozier. Those decisions bound the panel.
The challenge was also unpreserved. United States v. Johnson, 981 F.3d 1171 (11th Cir. 2020), distinguishes ordinary de novo constitutional review from plain-error review when the issue was not raised below. United States v. Wright, 607 F.3d 708 (11th Cir. 2010), and United States v. Alfonso, 104 F.4th 815 (11th Cir. 2024), reinforce that preservation rule.
Because binding precedent sustained the statute, Johnson’s facial challenge failed. The opinion does not separately decide a defendant-specific, as-applied constitutional claim.