U.S.A v. Johnson

• Decision Date: 16 July 2010
• Docket Number: No. 09-3247.,09-3247.
• Parties: UNITED STATES of America, Plaintiff-Appellee,v.Craig L. JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

612 F.3d 889

UNITED STATES of America, Plaintiff-Appellee,v.Craig L. JOHNSON, Defendant-Appellant.

No. 09-3247.

United States Court of Appeals Seventh Circuit.

Argued March 29, 2010.

Decided July 16, 2010.

Michelle L. Jacobs, Attorney, William J. Lipscomb, Attorney (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

John A. Drake, Attorney (argued), Ladue, Curran & Kuehn, South Bend, IN, Martin J. Pruhs, Attorney, Pruhs Law Office, S.C., Milwaukee, WI, for Defendant-Appellant.

Before CUDAHY and KANNE, Circuit Judges, and DARRAH, District Judge. ^*

DARRAH, District Judge.

On September 23, 2008, Defendant-Appellant Craig L. Johnson was charged in a one-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). The case proceeded to trial before a jury.

Because the parties stipulated that Johnson had previously been convicted of a felony, the only issue for the jury to decide was whether or not Johnson was in possession of a gun that had traveled in interstate commerce. Milwaukee Police Officers testified that Johnson was asked during a traffic stop whether he had anything on his person and that Johnson told them he had a gun in his pocket. The officers then found a gun in Johnson's front pants pocket and arrested him.

Johnson took the stand in his own defense. On direct examination, Johnson denied having a gun-or even seeing a gun-on the day of his arrest and stated that the first time he had seen the gun was at trial. Also on direct examination, Johnson affirmed his prior felony convictions, testifying as follows: “Uhm, summer '98, '99, getting high, drugs, sharing drugs with this female friend of mine. Got a possession charge, party to a crime, possession with intent because I admitted to sharing drugs .... Party to the crime of possession. And the second crime was in 2002. I bought a gun .... felon in possession of a gun.” (Trial Tr. III 8:13-9:1.) When asked on cross-examination why he bought a gun, Johnson said, “I mean, it was an old army gun. It was a United States army gun. It was, it was real old. I mean-. I thought it was worth something. 1911 was the date on it.” (Trial Tr. III 27:19-21.)

The jury found Johnson guilty. After trial, the Presentence Investigation Report (“PSR”) determined that Johnson's testimony at trial that he did not have a gun on his person was false and that Johnson had falsely denied having a gun in his pocket when he was interviewed by a Milwaukee Police Detective the day after his arrest. (PSR ¶¶ 7, 9.) The PSR also determined that Johnson falsely testified about his prior weapons felony-by characterizing the weapon as an “antique gun”-and about his prior felony drug conviction-by saying it was the result of his sharing drugs with his friends. (PSR ¶ 8.) The PSR recommended a two-level increase for obstruction of justice, concluding that “[t]he defendant testified falsely at trial regarding the charged offense as well as the circumstances surrounding his prior convictions as noted above,” that Johnson's “testimony at trial was in direct contrast with the testimony of the arresting officers, that ‘he falsely testified regarding the circumstances of his prior arrests,’ ” and that he “attempted to obstruct his prosecution with his false statements, which were in relation to his offense of conviction.” (PSR ¶¶ 11, 18.)

The criminal history category as calculated in the PSR was IV, based on eight criminal history points: three for each of his two prior felony convictions and two for committing the instant offense while on supervised release for the earlier felon-in-possession crime. Citing section 4A1.3 of the Sentencing Guidelines, the PSR also noted that an upward departure may be warranted.

On August 31, 2009, Johnson appeared before the district court for sentencing. His sole objection to the PSR was to the obstruction enhancement pursuant to U.S.S.G. § 3C1.1. The district court's pertinent discussion of the issue of a two-level increase for obstruction of justice was as follows:

Well, relative to the objection, the Court obviously listened to the testimony. And when the Defendant was arrested he was asked, of course, according to the testimony of the Officers, whether or not he had anything that he shouldn't have. Said he had a gun in his pocket, which was later denied. And then, of course, we went to trial on that issue. And the Officers only testified that they took the weapon from the pocket, so the jury believed that testimony. That's where it was found. But-so one could say that that is just a defense. That is the Defendant's story. The Court views the testimony, however, as an extraordinary effort to minimize every type of involvement of the Defendant with this offense relative to his prior felony drug convictions. Of the sharing drugs. The Court has read the records, and it's not the case. And in addition, styling, the automatic the Colt .45 1911, was issued in 1911. The Court is intimately familiar with the history of the Colt .45 .... it is not an antique. It is still a functioning, very dangerous weapon. So to minimize that is also something-in combination with that, the drug history, in the context of the defense in this case, which goes beyond the defense in this case to what the Court views as a mistruth-the Court is going to allow that presentence report to stand as it is.

(Sentencing Tr. 4:12-5:15.) The judge then stated that he would “proceed to sentencing with the sentencing guidelines that are established by that” and would “incorporate that into the standards set forth in 18 United States Code Section 3553.” (Sentencing Tr. 5:16-19.)

After then hearing arguments from the Government and from Johnson's counsel, the district court discussed, among other things, Johnson's criminal history category:

I think your attorney has made a good argument, and has put you in the best light that he possibly can. But I see the facts differently than he does. And as a result I think this criminal history is under-represented. And the criminal history category should be at a higher level. And I'm going to make that finding here, that it should be at least around a category 5, instead of a 4. I think it was a 4 at first. The criminal history category should be higher, and the Court is going to find that it is, given the analysis that the Court just conducted.

(Sentencing Tr. 23:16-25.)

The Government recommended 72 months' imprisonment. Johnson's counsel recommended 63 months. The Court imposed a sentence of 96 months to be served consecutively to an 11-month sentence previously imposed by another judge based on a revocation of Johnson's supervised release on another, unrelated offense. A 96-month sentence is at the top of the guideline range based on a criminal history category of V.

Johnson appeals his sentence, arguing (1) that the district court erroneously applied an obstruction enhancement without making the necessary findings and (2) that the court committed significant procedural and structural errors by increasing his criminal history category, making his sentence consecutive, and failing to ask Johnson and his counsel whether they had read the PSR.

DISCUSSION

In reviewing a sentence, it must first be determined whether the district court committed any procedural error, such as improperly calculating the guideline range, failing to adequately explain the sentence imposed, treating the Guidelines as mandatory, or failing to consider the factors set forth in § 3553(a). Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007) ( Gall ). The district court's interpretation of the Sentencing Guidelines, as well as its application of the Guidelines to the facts, is reviewed de novo. United States v. Abbas, 560 F.3d 660, 662 (7th Cir.2009) (citations omitted). Factual findings are reviewed for clear error. United States v. Singh, 483 F.3d 489, 496 (7th Cir.2007) (citing United States v. Ellis, 440 F.3d 434 (7th Cir.2006)).

If the sentence is procedurally sound, it is then reviewed for substantive reasonableness under an abuse-of-discretion standard. United States v. Are, 590 F.3d 499, 530 (7th Cir.2009) (citing Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Scott, 555 F.3d 605, 608 (7th Cir.2009)).

Obstruction of Justice

Section 3C1.1 of the Sentencing Guidelines provides for a two-level enhancement if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice with respect to the investigation, prosecution, or sentencing of the instant offense of conviction.” U.S.S.G. § 3C1.1(A) (2009). Committing perjury is specifically listed as an example of conduct that warrants such an enhancement. See U.S.S.G. § 3C1.1 Application Note 4(b).

To apply an enhancement on the basis that the defendant perjured himself, the district court should make a finding as to all of the factual predicates necessary for a finding of perjury: false testimony, materiality, and willful intent. United States v. Seward, 272 F.3d 831, 838 (7th Cir.2001) ( Seward ) (citing United States v. Dunnigan, 507 U.S. 87, 95, 113 S.Ct. 1111, 122 L.Ed.2d 445 (1993) ( Dunnigan )). Although it is preferable to have the district court address each element of the alleged perjury in a clear and separate finding, “separate findings are not strictly necessary so long as the court determined that the defendant lied to the judge and jury about matters crucial to the question of the defendant's guilt.” United States v. White, 240 F.3d 656, 662 (7th Cir.2001) ( White ) (citing United States v. Hickok, 77 F.3d 992, 1008 (7th Cir.1996) ( Hickok )). To lie, after all, is “to present false information with the intention of deceiving,” American Heritage Dictionary of the English Language (4th ed.2009)-a definition which encompasses two of the three elements of perjury. If the lie occurs under oath and concerns a material issue, it is perjury.

This court has upheld...