USA. v. Johnson, 98-30297
| Decision Date | 16 August 1999 |
| Docket Number | No. 98-30297,98-30297 |
| Citation | 187 F.3d 1129 |
| Parties | (9th Cir. 1999) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARK WESLEY JOHNSON,Defendant-Appellant |
| Court | U.S. Court of Appeals — Ninth Circuit |
Mark Bennett Weintraub, Assistant Federal Public Defender, Eugene, Oregon, for the defendant-appellant.
William E. Fitzgerald, Assistant United States Attorney, Eugene, Oregon, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon Ann Aiken, District Judge, Presiding. D.C. No. CR-98-60022-AA.
Before: Betty B. Fletcher, Warren J. Ferguson, and A. Wallace Tashima, Circuit Judges.
Opinion by Judge Ferguson; Partial Concurrence and Partial Dissent by Judge Tashima
Mark Johnson was sentenced to a term of 71 months pursuant to a guilty plea for possession of a firearm by a prohibited person in violation of 18 U.S.C. S 922(g)(9). On appeal, we vacate his sentence and remand for re-sentencing before a different district court judge.
On March 20, 1997, Kelly Johnson, Mark Johnson's wife, came home from work and parked her car in the driveway of the couple's apartment complex. Because her husband had called her earlier in the day accusing her of having an affair, Kelly sat in her car afraid to go inside. Seeing Kelly in her car, Mark came out of the apartment and started yelling at her. When Kelly tried to drive away, Mark snatched the keys from the ignition. He then reached inside the car, grabbed Kelly by the face, and shook her head violently. Kelly was able to jump out of the car and run to a neighbor's apartment. There, she called 911 and told the operator that her husband was going to kill her.
Agitated and partially drunk, Mark went back to the couple's apartment. There, he retrieved the Norinco SKS machine gun he had stored in his apartment and went outside. Once outside, he fired a "burst of bullets" into the ground beside the apartment building.
When the police arrived on the scene, they found Mark wandering through the parking lot. Kelly spoke with the officers and gave them permission to search the apartment. The officers found the machine gun and additional ammunition in the apartment. After being advised of his constitutional rights, Mark admitted that the gun was his, that he had paid someone to modify it for him to fire in fully automatic mode, and that he had fired the gun outside the complex.
On February 18, 1998, a District of Oregon grand jury returned an indictment charging Johnson with unlawful possession of a firearm following a misdemeanor domestic violence conviction1 in violation of 18 U.S.C. S 922(g)(9) and with unlawful possession of a machine gun in violation of 18 U.S.C. S 922(o)(1). On August 3, 1998, Johnson pleaded guilty to the first count pursuant to a plea agreement with the government; in return, the government promised to recommend the low end of the applicable sentencing range and to drop the second count of the indictment.
Johnson appeared before the district court on October 15, 1998, for his sentencing hearing. At the hearing, the govern- ment asked for two sentencing enhancements, as set forth in the plea agreement. First, the government asked for a fourlevel enhancement based on U.S.S.G. S 2K2.1(b)(5) because Johnson used the firearm in connection with "another felony offense." Johnson claimed that his conduct did not fall within that section, but the district court agreed with the government, finding that Johnson used the firearm in connection with the Oregon offense of unlawful use of a weapon. Second, the government asked for a two level enhancement based on U.S.S.G. S 3A1.3 because a victim was physically restrained "in the course of the offense." Johnson objected to this enhancement as well, but the district court found that Johnson had restrained Kelly four days earlier when he held her hostage in the apartment without allowing her to leave and also on the day of the gun incident when he took her car keys.
The district court's findings resulted in a net offense level of 21, corresponding to a sentence range of 57 to 71 months. Although the presentence report filed by the probation office recommended sentencing at the top of the range (71 months), the government agreed in its plea agreement to recommend Johnson be sentenced at the low end of the sentencing range. The district court agreed with the probation officer and sentenced Johnson to 71 months incarceration. Johnson is currently serving that sentence.
Under U.S.S.G. S 2K2.1(b)(5), the district court applied a four-level enhancement for committing "another felony offense" based on its finding that Johnson had committed the Oregon felony of unlawful use of a weapon. We review the district court's application of the Sentencing Guidelines to the facts of a particular case for an abuse of discretion, United States v. Aguilar-Ayala, 120 F.3d 176, 177-78 (9th Cir. 1997), and hold that the district court abused its discretion in concluding that Johnson had committed the Oregon offense of unlawful use of a weapon.
U.S.S.G. S 2K2.1(b)(5) provides as follows:"If the defendant used or possessed any firearm or ammunition in connection with another felony offense . . . increase by 4 levels." U.S.S.G. S 2K2.1(b)(5). Application note 7 states that " `felony offense' . . . means any offense (federal, state, or local) punishable by imprisonment for a term exceeding one year, whether or not a criminal charge was brought, or conviction obtained." Application note 18 states that" `another fel- ony offense' . . . refer[s] to offenses other than explosives or firearms possession or trafficking offenses."
The district court here found that Johnson used the weapon in connection with the Oregon felony of unlawful use of a weapon, Or. Rev. Stat. S 166.220(1), which states in full:
A person commits the crime of unlawful use of a weapon if the person: (a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015; or (b) Intentionally discharges a firearm, blowgun, bow and arrow, crossbow, or explosive device within the city limits of any city or within residential areas within urban growth boundaries at or in the direction of any person, building, structure, or vehicle within the range of the weapon without having legal author ity for such discharge.
The court did not specify upon which subsection of S 166.220(1) it based the enhancement.
Regardless of which subsection ofS 166.220(1) the district court based the enhancement, the court abused its discretion in finding that Johnson's conduct fell within the terms of the statute. To have violated subsection (a) ofS 166.220(1), Johnson must have attempted to use his firearm "against another" or have had the intent to use his weapon against another.2 However, it is undisputed here that Johnson fired his gun into the ground and did not attempt to use his weapon against another person. In fact, none of the evidence presented to the district court showed even an intent to use the weapon against another person. The government recognized that much in its brief in this appeal, in which it argued only that Johnson violated subsection (b) of S 166.220(1).
That argument, though, is incorrect. Although the record supports a conclusion that Johnson intentionally fired his weapon, as subsection (b) requires, Johnson did not fall within a different part of subsection (b). The statute requires that the weapon be fired "at or in the direction of any person, building, structure or vehicle within the range of the weapon." Inexplicably, the district court omitted that part of the statute in its analysis.3
Nevertheless, it is clear that Johnson did not fire his weapon "in the direction of any person, building, structure or vehicle" -- as required by S 166.220(1)(b). See Oregon v. Wimberly, 952 P.2d 1042, 1044 (Or. Ct. App. 1998) (). All Johnson did in this case was fire his weapon into the ground. According to the presentence report, a child was nearby, but there was absolutely no allegation that Johnson fired his weapon "at or in the direction" of the child. At oral argument, the government admitted as much, stating that there was no evidence that Johnson fired his weapon at a person or building.
Because Johnson did not use his weapon against another person or have the intent to use it against another person, and he did not fire his weapon toward a person, building, structure, or vehicle, Johnson plainly did not commit a felony under S 166.220(1) - subsection (a) or (b). In concluding that Johnson did unlawfully use the weapon under S 166.220(1), the district court abused its discretion by granting the fourlevel enhancement under U.S.S.G. S 2K2.1(b)(5) for using a weapon in connection with another felony offense.
Along with the four-level enhancement discussed above, the district court interpreted U.S.S.G. S 3A1.3 to apply to Johnson and granted the government's request for a two-level enhancement. We review de novo the district court's interpretation of the Sentencing Guidelines. United States v. Bailey, 139 F.3d 667, 667 (9th Cir. 1998). Under that standard, we conclude that the district court properly granted the government's application for a two-level enhancement based on restraint of victim.
U.S.S.G. S 3A1.3 provides for a two level enhancement "[i]f a victim was physically restrained in the course of the offense." Johnson admitted in his reply brief that he restrained Kelly on March 20 when he held her in her...
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