United States v. Paul Johnson ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10068
Plaintiff-Appellee, D.C. No.
2:15-cr-00003-GEB-1
v.
PAUL LELAND JOHNSON, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Argued and Submitted June 10, 2019
San Francisco, California
Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District
Judge.
Paul Johnson appeals his conviction and sentence for two counts of making
a false statement in violation of 18 U.S.C. § 1001. Johnson made the statements
for which he was convicted as part of an arson investigation. After applying an
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
arson cross-reference and adding enhancements for obstructing justice and
endangering the public under the Sentencing Guidelines, the district court imposed
a 41-month sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
1. Sufficient evidence supports Johnson’s false-statement convictions.
Johnson first told investigators: “I called dispatch to report that my vehicle was
fully engulfed . . . [a] member of the public then pulled up.” (emphasis added).
Johnson later revised his statement, telling investigators that after members of the
public pulled up he told them he “would call for help,” not that he had already
done so. Neither statement was true: Johnson did not call for help before
members of the public arrived, nor did he tell them that he would call for help. A
reasonable juror could conclude that Johnson made these statements to mislead
investigators and obfuscate the timeline of events, diverting suspicion from him.
See, e.g., United States v. Service Deli, Inc., 151 F.3d 938, 941 (9th Cir. 1998)
(“[T]he materiality requirement of a § 1001 violation is satisfied if the statement is
capable of influencing or affecting a federal agency.”) (original emphasis); United
States v. Selby, 557 F. 3d 968, 978 (9th Cir. 2009) (finding that the defendant acts
willfully if “the false statement [is made] under circumstances that support a
reasonable inference that she knew it was false”).
2. The district court did not abuse its discretion in applying the arson cross-
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reference. Although the jury did not reach a verdict on Johnson’s arson charge, at
sentencing the district court concluded that Johnson’s crime “involved” arson such
that the Sentencing Guideline’s arson cross-reference should apply. U.S.S.G.
§§ 2B1.1(c)(2), 2K1.4(a)(3). In applying the cross-reference, the district court
relied on the following evidence: Johnson parked his U.S. Forest Service truck
against the tree line and on top of forest debris; pine needles from the burn site
were stuffed between the truck’s engine and transmission; open flame ignition
caused the truck fire; Johnson—a trained firefighter with access to an
extinguisher—did not attempt to subdue the fire; Johnson initially did not call for
emergency services; and Johnson provided investigators inconsistent accounts of
relevant events. The district court did not clearly err because the evidence was
sufficient to find by clear and convincing evidence that Johnson had committed the
crime of arson. See United States v. Gasca-Ruiz, 852 F.3d 1167, 1170 (9th Cir.
2017) (explaining that district court’s factual findings are reviewed for clear error).
Thus, the district court’s application of the arson cross-reference was proper. See
United States v. Gonzalez, 336 F. App’x 701, 703 n.2 (9th Cir. 2009) (affirming
application of arson reference where jury acquitted defendant of arson); United
States v. Hopper, 177 F.3d 824, 832–33 (9th Cir. 1999) (observing that a court may
consider acquitted conduct in its sentencing calculations if it finds that the
government proved the conduct by a preponderance of the evidence (or, where
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required, by clear and convincing evidence)).
Nor did application of the cross-reference violate the Sixth Amendment. See
United States v. Treadwell, 593 F.3d 990, 1017 (9th Cir. 2010) (holding that a
sentence that rests on a judge-made finding does not violate the Sixth Amendment
if the sentence falls within the statutory maximum authorized by the jury’s
verdict). Johnson’s 41-month sentence falls below the ten-year maximum he faced
for his false-statement convictions. 18 U.S.C. § 1001.
3. The district court did not abuse its discretion in finding that Johnson’s
“offense . . . endangered . . . a place of public use[.]” U.S.S.G. § 2K1.4(a)(2); see
Gasca-Ruiz, 852 F.3d at 1170 (application of the guidelines is reviewed for abuse
of discretion). In applying the enhancement, the district court relied on evidence
that Johnson set fire to his U.S. Forest Service truck, which he parked against the
tree line on the National Forest’s Mormon Emigrant Trail; that the fire spread
beyond the truck into the nearby wildland; and that firefighters on scene reported
that the burning truck created an “immediate threat to the wildland.” See United
States v. Holmes, 646 F.3d 659, 662 (9th Cir. 2011) (“Endangering means putting
the property at risk but resulting in no actual damage, or damage that is less than
destruction.”).
4. The district court did not abuse its discretion in applying a two-level
enhancement for obstructing justice in violation of U.S.S.G. § 3C1.1. Applying
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this enhancement to a criminal defendant’s trial testimony raises the risk of
undermining the defendant’s constitutional right to testify on his own behalf. See
United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014). To mitigate this
risk, a “district court applying the enhancement based on perjury must expressly
find that ‘(1) the defendant gave false testimony, (2) on a material matter, (3) with
willful intent.’” United States v. Johnson, 812 F.3d 757, 761 (9th Cir. 2016)
(quoting Castro-Ponce, 770 F.3d at 822). Here, the district court adopted the
Probation Office’s Presentence Investigation Report, which found that Johnson
committed perjury during his testimony at trial, and expressly rejected Johnson’s
argument that his testimony was not willfully false. The district court therefore
made all findings necessary to trigger the enhancement. See United States v.
Taylor, 749 F.3d 842, 848 (9th Cir. 2014) (finding that the district court did not err
in failing to make a specific finding of perjury where it made sufficient findings
that the defendant acted willfully).
AFFIRMED.
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