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United States v. Johnson

United States District Court, E.D. California

February 23, 2018



          GARLAND E. BURREL JR. Senior United States District Judge.

         Defendant Paul Leland Johnson (“Defendant”) objects to base offense level 20 in paragraph 25 of the Presentence Report (“PSR”), arguing it was increased under USSG § 2K1.4(a)(2)(C), which does not apply, and Defendant also objects to the obstruction of justice enhancement under USSG § 3C1.1. Def's Formal Obj. PSR (“PSR Obj.”) at 1:17-22, ECF No. 120.

         Defendant argues that the cross-reference in paragraph 25 to USSG § 2K1.4 is inappropriate because his false statement convictions did not “involve” arson within the meaning of USSG § 2B1.1(c)(2) and the jury did not reach a verdict on the indicted arson crime. See PSR Obj. at 3:27-5:21. He argues that even if the cross-reference is appropriate, his offense level should only have been enhanced two levels under USSG § 2K1.4(a)(4), rather than fourteen levels under USSG § 2K1.4(a)(2). See Id. at 5:22- 6:2. Finally, he argues the obstruction of justice enhancement is inappropriate because he “did not commit perjury during his testimony at trial within the meaning of USSG § 3C1.1.” PSR Obj. at 2:20-21. The Government opposes the objections and argues the court should “adopt the PSR and calculate the Guidelines at offense level 22, criminal history I, with a resulting range of 41-51 months.” Resp. Obj. PSR at 7:26-8:2, ECF No. 122.

         Defendant contends the false statement convictions did not “involve” arson within the meaning of USSG § 2B1.1(c)(2) because the “offenses occurred after any alleged arson occurred.” PSR Obj. at 5:16-18. This is an overly constrained meaning of the term “involved.” As the First Circuit states in another context:

[Defendant]'s first resort is to the dictionary and to what he says is the “common meaning” of the word “involve”: to “include” or to “contain as a part.” This narrow definition of “involve” is certainly one found in dictionaries. See, e.g., The American Heritage Dictionary 921 (4th ed. 2000) (to “contain as a part; include”); Webster's Third New International Dictionary 1191 (1993) (to “have within or as part of itself, ” “contain, ” or “include”).
That is not, however, the only definition. To “involve” also means “to relate closely, ” Webster's, supra, at 1191, or to “connect closely, ” American Heritage, supra, at 921. This broader definition is more consistent with the “natural reading of the text.” Dodd v. United States, 545 U.S. 353, 125 S.Ct. 2478, 2482, 162 L.Ed.2d 343 (2005); see also Id. (citing Webster's).

United States v. McKenney, 450 F.3d 39, 42-43 (1st Cir. 2006). The false statements here were about, and related closely to, the arson.

         Defendant challenges the factual underpinning of the cross-reference, arguing “the evidence is insufficient to find that Johnson's offense involved arson or property damage by use of explosives” because “[t]he jury was asked to convict [Defendant] of arson to federal property, but the jury did not convict him.” PSR Obj. at 5:19-21. The Government counters: “[Defendant] is absolutely correct that the jury was unable to reach a verdict on the charged count of arson under the reasonable doubt standard. At sentencing, however, the Court assesses the evidence under a lesser standard-in this instance, the clear and convincing standard.” Resp. Obj. PSR at 2:5-7. The Government supports its argument with findings in the PSR and trial evidence. The following factual findings submitted by the government are supported by the trial record, have been augmented by the court, and are adopted as factual findings:

• Vehicle fire expert witness Russ Auker testified that there was only one cause of the Forest Service truck fire that he could not rule out: open flame ignition. Trial Transcript at 871. Open flame ignition is a match or other flame used to ignite material. Id. Auker ruled out an electrical cause, the transmission, or a mechanical cause. The expert testimony that open flame ignition caused the vehicle fire went uncontradicted by any other expert testimony.
• The video Johnson shot of the fire on his iPhone corroborates the testimony of Auker - specifically that the smoke is white at the beginning of the video, consistent with needles or other forest products burning. Transcript at 507, 529, 827.
• [United States Department of Agriculture, Forest Service law enforcement officer Vernon Voelz testified that Johnson told him “once [Johnson] observed the smoke coming from the vehicle, he went over to the vehicle, turned it off, looked for the source of the smoke. He didn't see anything underneath the vehicle initially. Went to try to find the hood latch to open the hood to see the engine compartment. That was -- took a little while. Looked back underneath the vehicle and up in a crossmember, behind the engine, in the transmission area he observed burning pine needles.” Transcript 228:20-22.] Johnson himself described the truck as having been sabotaged: that was what he initially told the members of the public when they came upon the scene. Transcript at 1065. Some of the pine needles stuffed into the vehicle actually survived the fire. Exhibits 528, 531. [Johnson's trial testimony evinces that “pine needles [were in the vehicle] in weird places.” Transcript at 1248]
• The needles and other debris recovered from the burned truck matched the trees and shrubs that occur naturally at the vehicle burn site. Transcript at 733. This mix of recovered needles and debris did not match the vegetation growing at the Forest Service ranger station. Transcript at 761. . . .
• Paul Johnson was the only person up at the burn site. He only ever went 15-20 feet away from the truck. Transcript at 787.
• Paul Johnson behaved suspiciously during and after the fire: he didn't use the available fire extinguisher even though the members of the public suggested it to him and he said it was a good idea. Transcript at 464. Johnson didn't radio in for help even though he had been trained on using his radio. Transcript at 1368. Johnson took the time to talk with the members of the public about the snow line and camping before finally calling in the fire. Transcript at 1325-26. Johnson took three videos and three still ...

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