United States v. Johnson

In the

United States Court of Appeals

For the Seventh Circuit

No. 09-3247

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

C RAIG L. JOHNSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Wisconsin.

No. 08-CR-253—Rudolph T. Randa, Judge.

A RGUED M ARCH 29, 2010—D ECIDED JULY 16, 2010

Before

C UDAHY and K ANNE, Circuit Judges, and

D ARRAH, District Judge. Œ

D ARRAH, District Judge. On September 23, 2008, Defen-

dant-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.

Œ

Honorable John W. Darrah, United States District Judge

for the Northern District of Illinois, is sitting by designation.

2 No. 09-3247

Because the parties stipulated that Johnson had previ-

ously been convicted of a felony, the only issue for the

jury to decide was whether or not Johnson was in pos-

session of a gun that had traveled in interstate com-

merce. Milwaukee Police Officers testified that Johnson

was asked during a traffic stop whether he had any-

thing 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

No. 09-3247 3

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 sur-

rounding 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 ar-

rests,” and that he “attempted to obstruct his prosecu-

tion 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:

4 No. 09-3247

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 rela-

tive 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 auto-

matic, 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 func-

tioning, 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 guide-

lines 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.)

No. 09-3247 5

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-repre-

sented. 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’ imprison-

ment. 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 John-

son’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 dis-

trict 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.

6 No. 09-3247

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 (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-discre-

tion standard. United States v. Are, 590 F.3d 499, 530

(7th Cir. 2009) (citing Gall, 552 U.S. at 51; 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 im-

pede, 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). Com-

mitting perjury is specifically listed as an example of

No. 09-3247 7

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 neces-

sary 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 (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 obstruction enhancements in the

absence of clear, individualized findings as to each

element of perjury. In White, eight witnesses testified

that the defendant, White, knowingly and actively par-

ticipated in an insurance-fraud scheme. 240 F.3d at 659.

In the face of this evidence, White took the stand in

his own defense and denied any involvement in the

8 No. 09-3247

scheme. Id. White was convicted by a jury, and the case

proceeded to sentencing. Id. The PSR recommended a

two-level upward adjustment for obstruction of justice.

Id. at 659-60. The sentencing judge applied the enhance-

ment, stating, “[D]espite everything Mr. White said

about being high and doing all this, he wasn’t high when

he testified, he knew exactly what he was saying when

he testified, and he was committing perjury, and I think

that the two-point enhancement is appropriate in this

case.” Id. at 660.

On appeal, White argued that the district court failed

to make a finding regarding White’s intent and failed

to identify each specific statement that constituted

perjury. Id. at 661. The district court’s findings were held

to be sufficient because it was evident from the sen-

tencing transcript “that the court determined that White

knew what he was saying and doing when he took

the stand and denied basic facts regarding his participa-

tion in the fraud.” Id. at 662. Also, the defendant “system-

atically and in a wholesale fashion contradicted the

eyewitness testimonies of eight witnesses concerning

every aspect of his participation in the insurance

fraud,” which made it unnecessary for the court “to

peruse the trial transcript to point out every instance

in which White perjured himself.” Id.

In United States v. Saunders, 359 F.3d 874, 876 (7th Cir.

2004) (Saunders), the defendant, Saunders, was involved

in an altercation with an acquaintance during which a

firearm was discharged. Saunders was charged as a

felon in possession of a firearm. Id. Several witnesses at

No. 09-3247 9

trial testified that Saunders had the gun in his posses-

sion moments before and after the altercation. Id. at

876-77. Nonetheless, Saunders took the stand in his own

defense and testified that he never possessed the gun,

that a hard object had been placed in his back during

the struggle, and that the two men slipped in the snow

and ended up with both of their hands and the gun in

Saunders’s pocket when the gun went off. Id. at 877. The

district court applied the two-level, obstruction-of-

justice enhancement, finding that Saunders told “a lie

which no one would believe.” Id. at 879. Although the

court’s findings were held to be “too skimpy,” the error

in that particular case was harmless because the record

showed that the district court found Saunders’s version

incredible. Id.

Thus, although the district courts in White and Saunders

did not provide specific, separate findings as to the

falsity, intent, and materiality of specific statements, the

sentencing judges in both cases created a record that

allowed this court to determine that each court specif-

ically found the defendant lied about a material issue.

See also United States v. Savage, 505 F.3d 754, 763-64 (7th

Cir. 2007) (holding district court’s finding that defendant

“obstructed or attempted to obstruct justice” was “regret-

tably slim” but constituted harmless error in light of

clear record that defendant willfully lied about material

matters contradicted by government witnesses and defen-

dant’s own expert); United States v. Sheikh, 367 F.3d 683,

687 (7th Cir. 2004) (affirming obstruction enhancement

when the district court “specifically found that each

defendant lied about knowingly redeeming illegally

10 No. 09-3247

obtained food stamps, a matter that is certainly crucial

to each defendant’s guilt”); United States v. Brimley, 148

F.3d 819, 823-24 (7th Cir. 1998) (affirming obstruction

enhancement when the district court identified relevant

testimony, expressly found that it was false, noted that

it went to a critical issue in the case, and stated that it

“had no hint of believability”).

When it is not clear that the district court made the

appropriate findings, however, the sentence must be

vacated and remanded for resentencing. See, e.g., Seward,

272 F.3d at 838-39 (holding that district court’s “bare

holding that [defendant] was ‘being untruthful’ ” was

insufficient and made it nearly impossible for the court

to assess whether the error was harmless); United States

v. McGiffen, 267 F.3d 581, 591-92 (7th Cir. 2001) (holding

that findings were insufficient to support obstruction

enhancement when the district court merely stated,

“I thought your testimony was riddled with inac-

curacies and lies,” without identifying specific state-

ments or addressing the issues of materiality or intent).

“[W]henever a district judge is required to make a discre-

tionary ruling that is subject to appellate review, we

have to satisfy ourselves, before we can conclude that

the judge did not abuse his discretion, that he exercised

his discretion, that is, that he considered the factors

relevant to that exercise.” United States v. Cunningham,

429 F.3d 673, 679 (7th Cir. 2005).

In this case, it is undisputed that the district court

did not articulate clear and separate findings as to the

falsity, materiality, and intent of any statement made by

No. 09-3247 11

Johnson. Nor can the district judge’s comments be rea-

sonably construed as a general finding “that encompasses

all of the factual predicates for a finding of perjury.”

See White, 240 F.3d at 656 (quoting Dunnigan, 507 U.S.

at 95).

First, the judge did not clearly state his belief that

Johnson made a false statement; he merely noted that the

jury did not believe Johnson’s testimony. After noting

Johnson’s pretrial denial of having a gun in his pocket,

the district court said, “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.” (Sentencing Tr. 4:17-21.) But an

obstruction enhancement is not warranted merely be-

cause the jury did not believe the defendant’s testimony;

the enhancement should only be applied if the court de-

termines that the defendant committed perjury. Seward,

272 F.3d at 838. The record contains no such determination.

The sentencing judge further obscured the basis for

his determination that Johnson committed perjury by

transitioning directly into a discussion about Johnson’s

prior felonies, stating, “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.” (Sentencing

Tr. 4:21-24.) The judge then discussed the statements

Johnson made about his previous felony conviction,

making it unclear whether the court based its application

of the obstruction enhancement on the testimony about

12 No. 09-3247

the gun, the testimony about the prior offenses, or both.

The judge’s comments regarding defendant’s “effort

to minimize” his involvement with the offense of con-

viction further confuse the issue; an “effort to minimize”

something would not necessarily involve an inten-

tional, material, false statement.

Moreover, if the judge applied the perjury enhancement

based on Johnson’s testimony about his prior offenses,

those statements would not be material to the issue of

guilt at trial or to Johnson’s criminal history determina-

tion at the time of sentencing. A material statement is

one that “if believed, would tend to influence or affect

the issue under determination.” U.S.S.G. § 3C1.1 Applica-

tion Note 6; see also United States v. Parker, 25 F.3d 442,

449 (7th Cir. 1994) (holding that a false statement re-

garding defendant’s take in a robbery was not material

because it “was not ‘designed to substantially affect the

outcome of the case’ ”) (quoting Dunnigan, 507 U.S. at 95).

In this case, the only issue for determination by the

jury during the trial was whether Johnson was in posses-

sion of a firearm that had traveled in interstate com-

merce. Johnson had stipulated that he had twice been

convicted of a felony, and those convictions were not

relevant to the trial issue of his gun possession. Likewise,

Johnson’s testimony about his previous convictions is

immaterial as to his sentence because the stipulations

would have increased his criminal history category re-

gardless of his testimony.

On the record, it cannot be determined that the trial

court found that Johnson made a particular material

No. 09-3247 13

false statement with willful intent, sufficient to enhance

Johnson’s sentence for obstructing justice. Therefore, the

sentence must be vacated and remanded so the district

court can further consider the issue of perjury by Johnson

and make the appropriate findings if it determines an

obstruction enhancement is applicable in this case.

Other Asserted Procedural and Substantive Errors

Johnson also identifies what he considers to be “signifi-

cant procedural and substantive errors” committed by

the district court in entering an above-guideline sentence.

First, Johnson argues that the district court erroneously

relied on juvenile conduct and unrelated adult conduct

in contravention of the factors set forth in section 4A1.3(a)

of the Guidelines (providing for upward departures

based on inadequacy of criminal history category). Al-

though the judge did not specifically mention section

4A1.3(a) at sentencing, Johnson argues that the court

nonetheless relied on that section when it made a specific

“finding” that Johnson’s criminal history category was

under-represented and imposed a sentence above the

guideline range calculated in the PSR.

A sentencing proceeding should begin with a calcula-

tion of the applicable guidelines. Gall, 552 U.S. at 49.

After allowing both parties to argue for a particular

sentence, the sentencing judge should then consider all

of the mandatory § 3553(a) factors to determine whether

they support the requested sentence and “must ade-

quately explain the chosen sentence to allow for mean-

14 No. 09-3247

ingful appellate review and to promote the perception of

fair sentencing.” Id. at 50. Above-guideline sentences

must be supported with “compelling justifications.”

United States v. Gooden, 564 F.3d 887, 890-91 (7th Cir.

2009) (citation omitted).

Because the Guidelines are now advisory, a sen-

tencing court is not required to follow section 4A1.3 when

imposing an above-guideline sentence. United States v.

Jackson, 547 F.3d 786, 793 (7th Cir. 2008) (Jackson). Indeed,

after United States v. Booker, 543 U.S. 220 (2005), “our cases

have declared the concept of departures ‘obsolete’ and

‘beside the point.’ ” United States v. Walker, 447 F.3d 999,

1006 (7th Cir. 2006) (compiling cases); cf. United States v.

Turner, 569 F.3d 637, 640 (7th Cir. 2009) (noting that

whether to apply a downward departure under U.S.S.G.

§ 4A1.3 “is a discretionary decision that has nothing to

do with ‘correct’ Guidelines calculation” and is, thus, not

a procedural error but a substantive decision to be re-

viewed for reasonableness).

Thus, a district court may impose an above-guideline

sentence based on the factors set forth in § 3553(a)

without adherence to U.S.S.G. § 4A1.3. Further, “[j]udges

need not rehearse on the record all of the considerations

that 18 U.S.C. § 3553(a) lists; it is enough to calculate the

range accurately and explain why (if the sentence lies

outside it) this defendant deserves more or less.” United

States v. George, 403 F.3d 470, 472-73 (7th Cir. 2005).

Contrary to Johnson’s argument, it is not improper for a

district court to take a defendant’s juvenile conduct into

consideration at sentencing. Juvenile offenses may be

No. 09-3247 15

considered “as part of the larger picture, including as

evidence of a pattern of recidivism or criminal violence.”

United States v. Torres, 217 Fed. Appx. 540, 543 (7th Cir.

2007) (noting that such considerations were proper in

the pre-Booker era and that district judges now have

even more discretion) (citations omitted).

Although not bound by the Guidelines, district courts

may apply the departure guidelines “by way of analogy in

analyzing the section 3553(a) factors.” United States v.

Miranda, 505 F.3d 785, 792 (7th Cir. 2007) (citations omit-

ted). In Jackson, for example, this court upheld an above-

guideline sentence, finding that the judge’s comments

at sentencing “clearly indicated that he properly incorpo-

rated consideration of the § 4A1.3 policy statement into

his overall § 3553(a) analysis.” 547 F.3d at 793.

Here, however, the sentencing judge did not specif-

ically reference section 4A1.3 and did not indicate that

he was using that section by analogy in order to justify

an above-guideline sentence. Nor did the judge specif-

ically indicate that the sentence he imposed was a

variance from the guideline range computed in the PSR.

In his “Statement of Reasons,” the judge determined the

advisory guideline range (before departures) based on a

criminal history category of V—not IV, as calculated in

the PSR—and indicated he was imposing a sentence

within the advisory guideline range. The court also

stated as follows:

The defendant’s criminal history is under-represented.

The Court found the defendant’s criminal history is

more appropriate as V due to offenses in which the

16 No. 09-3247

defendant was arrested but there was no prosecution

or prosecution was declined. The defendant has

repeatedly lied and is unsuccessful on community

based supervision. Defendant admits he is not

supervisable.

(Statement of Reasons § VIII.)

In sum, the judge imposed a term of imprisonment

based on a higher guideline range than that which was

calculated in the PSR—without explaining how he

arrived at a higher range and in spite of his statement

that he was proceeding to sentencing based on the

PSR’s calculations. Although the record reveals that the

sentencing judge believed Johnson’s criminal history

category was under-represented, it is unclear as to how

that finding was used to calculate Johnson’s sentence.

Because the record does not reveal an adequate explana-

tion of the chosen sentence, Johnson’s sentence must be

reversed.

Second, Johnson claims the district court committed

a substantive error by imposing Johnson’s sentence

consecutively to an undischarged term of imprisonment

from a sentence imposed by another judge in another

case. However, the record does not reflect that Johnson

specifically requested a concurrent sentence or objected

to a consecutive sentence at any time before or after the

sentencing judge announced that Johnson’s sentences

would run consecutively. Indeed, Johnson’s attorney

conceded at oral argument that the plain-error standard

“would probably apply in this case.” Thus, we review

only for plain error. See United States v. Brassell, 49 F.3d

No. 09-3247 17

274, 277 (7th Cir. 1995) (“Because [defendant] made no

objection at the time of sentencing, review is limited to

the standard of plain error.”). Only if the error both is

clear and obvious and affected the outcome of the

court proceedings should the sentence be disturbed.

United States v. Olano, 507 U.S. 725, 732-36 (1993).

Here, there is no plain error in the district court’s deci-

sion to sentence Johnson to a term of imprisonment

that would run consecutively to the undischarged term

he was serving based on the revocation of his super-

vised release. When a defendant was on supervised

release at the time he committed the offense and his

supervised release is revoked, the Guidelines provide

that “the sentence for the instant offense may be

imposed to run concurrently, partially concurrently, or

consecutively to the prior undischarged term of impris-

onment to achieve a reasonable punishment for the

instant offense.” U.S.S.G. § 5G1.3(c) & Application Note

3(C); see also United States v. Jackson, 546 F.3d 465, 469

(7th Cir. 2008). The Sentencing Commission recommends

that the sentence for the instant offense be imposed

consecutively to the sentence imposed for the revoca-

tion. U.S.S.G. § 5G1.3, Application Note 3(C).

In imposing Johnson’s sentence, the judge stated,

“Mr. Lipscomb [the Assistant United States Attorney]

indicated that the sentence was probably on the light

side, and he was correct. So the Court is going to impose

a sentence of 96 months, but it’s going to be consecutive

to case 02-CR-128. That’s the decision that Judge Charles

Clevert entered on the revocation.” (Sentencing Tr. 24:1-5.)

18 No. 09-3247

The district court acted within its discretion and

followed the recommendation set forth in the Guidelines.

A consecutive sentence was not an abuse of discretion.

Johnson’s final argument on appeal is that the district

court erred by failing to ask Johnson whether he had

read the PSR. Federal Rule of Criminal Procedure 32

provides that the sentencing court “must verify that the

defendant and the defendant’s attorney have read

and discussed the presentence report and any ad-

dendum to the report.” Fed. R. Crim. P. 32(i)(1)(A); see also

United States v. Rone, 743 F.2d 1169, 1174 (7th Cir. 1984)

(Rone) (“The district court at the sentencing hearing

need directly ask the defendant only three questions—

whether he or she has had an opportunity to read the

report, whether the defendant and defense counsel

have discussed the report and whether the defendant

wishes to challenge any facts in the report.”).

The sentencing transcript reveals that the district court

did not ask the defendant whether he read the PSR. But it

does reveal that the defendant had read it. During his

statement in allocution, Johnson stated, “But in the

presentence report, every time she—Probation Depart-

ment lady—every time she address the issue that I had

with authority, she pointed out one thing that I believe

was factual. The other, I looked at it as wow, she’s

painting a cruel picture of me here. But the thing she

pointed out that was the truth was the fact that I don’t

like the Police.” (Sentencing Tr. 15:1-7.)

Thus, any error regarding the court’s failure to

comply with Federal Rule of Criminal Procedure 32 was

harmless.

No. 09-3247 19

CONCLUSION

For the reasons discussed above, Johnson must be

resentenced. Johnson requests that we apply Circuit

Rule 36 on remand and re-assign the case to another

judge. The request is denied. The sentencing judge pre-

sided over Johnson’s criminal trial. Here, where the PSR

recommends an enhancement for perjury based on trial

testimony, the trial judge is uniquely qualified to deter-

mine the appropriate sentence.

Johnson’s sentence is therefore V ACATED and R EMANDED

for resentencing consistent with this opinion.

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